Elections Bill (First sitting)

Committee stage
Wednesday 15th September 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Edward Leigh, † Christina Rees

† Anderson, Fleur (Putney) (Lab)

† Bell, Aaron (Newcastle-under-Lyme) (Con)

† Bristow, Paul (Peterborough) (Con)

† Clarkson, Chris (Heywood and Middleton) (Con)

Furniss, Gill (Sheffield, Brightside and Hillsborough) (Lab)

† Gibson, Peter (Darlington) (Con)

† Grady, Patrick (Glasgow North) (SNP)

† Hollern, Kate (Blackburn) (Lab)

† Hunt, Jane (Loughborough) (Con)

† Mayhew, Jerome (Broadland) (Con)

† O’Hara, Brendan (Argyll and Bute) (SNP)

† Randall, Tom (Gedling) (Con)

† Rutley, David (Lord Commissioner of Her Majesty's Treasury)

† Shelbrooke, Alec (Elmet and Rothwell) (Con)

† Smith, Cat (Lancaster and Fleetwood) (Lab)

† Smith, Chloe (Minister for the Constitution and Devolution)

† Smith, Nick (Blaenau Gwent) (Lab)

Adam Mellows-Facer, Chris Stanton, Committee Clerks

† attended the Committee

Witnesses

The Rt Hon Lord Pickles

Richard Mawrey QC, Henderson Chambers

Councillor Peter Golds, Leader of the Conservative Group, Tower Hamlets Council

Gillian Beasley, Returning Officer, Peterborough City Council

Assistant Chief Constable Gareth Cann QPM, West Midlands Police, and National Police Chiefs’ Council Portfolio Lead for Election-Related Crime

Public Bill Committee

Wednesday 15 September 2021

(Morning)

[Christina Rees in the Chair]

Elections Bill

09:25

[The Chair]

Before we begin, I have a few preliminary announcements. In line with current Government guidance and the House of Commons Commission’s decision, I encourage Members to wear masks when not speaking. Please give each other and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members could email their speaking notes to [e-mail]. Please switch off electronic devices or put them on silent mode. Tea and coffee are not allowed during sittings.

We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can take those matters formally. I call the Minister to move the programme motion standing in her name, which was discussed on Monday by the programming sub-committee for the Bill.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 9.25 am on Wednesday 15 September) meet—

(a) at 2.00 pm on Wednesday 15 September;

(b) at 11.30 am and 2.00 pm on Thursday 16 September;

(c) at 9.25 am and 2.00 pm on Wednesday 22 September;

(d) at 9.25 am and 2.00 pm on Tuesday 19 October;

(e) at 11.30 am and 2.00 pm on Thursday 21 October;

(f) at 9.25 am and 2.00 pm on Tuesday 26 October;

(g) at 11.30 am and 2.00 pm on Thursday 28 October;

(h) at 9.25 am and 2.00 pm on Wednesday 3 November;

(2) the Committee shall hear oral evidence in accordance with the following Table:

[The Chair]

Copies of written evidence that the Committee receives will be made available in the Committee Room, and will be circulated to Members by email.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Chloe Smith)

09:25

The Committee deliberated in private.

09:25

On resuming—

[The Chair]

We are now sitting in public. Do any Members wish to make a declaration of interest in connection with the Bill? No.

Examination of Witnesses

The Rt Hon Lord Pickles and Richard Mawrey QC gave evidence. 

09:34

[The Chair]

Q We will now hear evidence from Richard Mawrey QC of Henderson Chambers and Lord Pickles. Before calling the first Member to ask the first question, I remind hon. Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion. This session will end at 10.25 am. Will the witnesses please introduce themselves?

Lord Pickles: My name is Eric Pickles. I am a Member of the House of Lords and I also had the honour of sitting in the House of Commons. I wrote a report for the Government on trying to secure the ballot box, some of the recommendations of which are incorporated in the Bill. It is an honour and a privilege to be with Members of the House of Commons again.

Richard Mawrey: My name is Richard Mawrey, I am a QC at the London Bar, practising in the Temple. I have sat as an election commissioner—election judge—in most of the high-profile disputed local authority elections in the past 20 years, particularly those elections involving electoral fraud and other malpractice. In particular the elections in Birmingham, where the trial took place in 2005, and that concerning the former Mayor of Tower Hamlets, where the trial took place in 2015.

[The Chair]

Thank you. Minister, would you like to ask the first question?

[The Minister for the Constitution and Devolution (Chloe Smith)]

Q I would. First, may I welcome our witnesses? It is an absolute pleasure to have you here. You begin our day with the highest quality.

Richard, you highlighted in your judgment on Tower Hamlets and elsewhere how we see interlocking types of fraud that all together create broad criminality. Would you be able to talk us through the extent of that?

Richard Mawrey: Tower Hamlets was a particularly bad example. There, you had a political culture where winning and retaining power was everything. If there were rules, they were to be, at best, circumvented and, at worst, broken. Not only was there electoral fraud in the sense of false votes—almost all postal votes—but the system developed so there was misuse of public funds, which I later decided was bribery, largely as a result of Lord Pickles’ initiative to employ a top firm of accountants to investigate the doings of the council, from which it appeared that large sums of money had been diverted for political purposes.

In Tower Hamlets, the trickiest thing of all was manipulation of voters by religious means. That operated within one community: members of the Bangladeshi community, at the instance of the Mayor and his cronies, were being induced by their religious leaders to back one lot of Muslin politicians against another lot of Muslim politicians. It was not, as you might expect, Muslims versus the rest. They were saying, “If you are a good Muslim, you will vote for Lutfur Rahman and his chums. If you are not and you vote for someone else, whether Muslim or non-Muslim, you are beyond the religious pale.” Clearly, that was unacceptable, therefore I made my findings of undue religious influence.

There were also other things, such as the provision in the Representation of the People Act 1983 whereby you cannot make false statements about the personal characters of the other candidates. You may remember the case of Phil Woolas up in the Manchester area. If you go beyond that limit and go public saying, basically, that your principal opponent is a racist who supports racists organisations, when it is totally untrue, that is, again, unacceptable.

You have virtually the whole catalogue of offences laid down by the 1983 Act; they were almost ticking the boxes, one by one, as they did it. That is what happens when you have a political culture that gets corrupted, in all senses, into the belief that, “The rules don’t apply to us. We do what we want in order to get the results.” That is the danger that one perceives. Of course, Tower Hamlets was an extreme case.

The other cases that I tried were largely cases of straightforward voter fraud using postal votes—misuse of the actual votes themselves: stealing them, altering them, and that sort of thing—or putting on the register people who had no right to be there, either because they lived somewhere else or because they did not exist at all. Those are the problems that I have seen, although I must emphasise that my experience is entirely with local authorities, naturally, because parliamentary elections are tried by proper judges, so to speak.

However—I think that Lord Pickles will agree with me here—local authority elections are the easiest to manipulate. You have relatively small electorates, a relatively small geographical area, and communities, although not necessarily racial or religious communities, that can operate as a sort of support mechanism in any frauds that you are perpetrating. I do not expect a large amount of fraud in parliamentary elections, referendums, or anything like that, but it is a serious problem in local elections. I do not think that Lord Pickles would disagree with that.

[Chloe Smith]

Q Across a selection of your cases—Tower Hamlets, Birmingham, and Slough—we see the range of corrupt practices, also known as crimes or elections fraud, including, as you say, postal voting practices, proxy voting practices and personation, notably, in Slough.

Richard Mawrey: Not so much proxy. Proxy votes are very rare, and proxy fraud is very rare. It is mostly personation, of both kinds: putting the wrong people on the register—what the Australians call “roll stuffing”—and misusing genuine votes for genuine people by diverting them, altering them, or, in some cases, simply destroying them.

[Chloe Smith]

Q Thank you. Two questions, if I may: would you agree that, where one of those avenues may be cut off by the law, criminals might turn to others? Criminals, by nature, are able to use a range of techniques, and, naturally, wish to do so. Secondly, may I ask for your assessment of who the victims of such crimes are? Where does the harm fall?

Richard Mawrey: I think the harm falls on the community as a whole if you have someone who is elected as a councillor, let us say, but has no right to be because the votes cast on their behalf are false. Take Birmingham, for example: in the two wards that I tried—although it was actually fairly common in all the wards with a substantial Muslim population—approximately half of the votes cast for the winning candidates were false. That is serious. The winning candidates got between 3,000 and 4,000 votes each. It was three per ward, so they got that, and their rivals got 200 or 300 below.

Of those 3,000-odd votes, somewhere between 1,500 and 2,000 were completely bogus. They were votes that had been harvested in various ways—not, funnily enough, by putting bogus people on the register. They had stolen voting papers. They had applied for votes to be sent to the wrong address. They had gone down streets collecting the voting papers from houses in multiple occupation—they would get themselves in and there was a huge pile of voting papers. They knew they would be there because they had applied, without the knowledge of the voters, for those votes to be postal votes. They went in, there was a pile of postal votes and the inhabitants of the block did not know. They collected the lot and filled them in.

If any of the people living in those houses went to vote in person, they were told, “Oh no, you voted by post,” much to their annoyance, as you might imagine. I had witnesses called before me who said, “I went down to the polling station expecting to vote, but they said, ‘I’m sorry, Mr Jones, but you’ve already voted.’” He said, “No, I haven’t,” and they said, “Oh yes, you’re marked: we’ve got your ballot paper.” So they, of course, are the losers.

The other thing is that if you have a culture of political corruption, it seeps into all other life. I think of the money in Tower Hamlets that could have been spent for the benefit of Tower Hamlets but that was actually being spent on providing, in effect, free meals for voters—which is what they were doing, among other things—and subsidising organisations that had not asked for a subsidy. Tower Hamlets is not a borough that has money to spare or to throw around, and I felt that the people who had lost out—I said this in my judgment—were what I might call the rank-and-file members of the Bangladeshi community that they were claiming to represent. They were the losers. If they were looking at it in any sort of tribal way, they were doing down their own kind—the people they were claiming were their power base. That is not tolerable.

[Chloe Smith]

Q Eric, you then had the opportunity to follow up on Richard’s work and to say what ought to be done about it. Is it still your view that something ought to be done about all of those things?

Lord Pickles: Yes. In terms of vulnerability, there might be the odd seat in the House that is vulnerable, but this is about local government. I think it would be a big mistake to say that this is just about voting, democracy and elections. It is actually about power and money. A place like Tower Hamlets has a budget of £1 billion. Many of the large cities have budgets of large sums of money. Even a small district council has considerable ability to dispose of assets and to make appointments.

The reason I put commissioners in Tower Hamlets was, like many things, based on quite a small thing. I looked at the small grants that were available to many organisations, some of which could be distributed by councillors. They were there to relieve poverty. I had a map that showed me where the grants had been distributed and another map that showed me where the deprivation was, and there was no relationship between the two. Then, I looked at the number of decisions that had been overturned by councillors and the number of decisions they had granted without a business plan. It was on that basis that we decided to put the thing through.

I was asked to look at it and we started taking evidence on the types of fraud. I have been involved in politics for a long time and have seen most things on the street, but I was quite shocked by some of the frauds that were being committed. Richard will be able to tell you about warehousing. There was a warehouse in Birmingham, I think, where they were literally changing the ballot papers on an almost commercial basis. There were things like carousel fraud, where a ballot is palmed—a fresh ballot is taken out, filled in and given to another person and it is palmed—as a way of controlling the election; landlords insisting on seeing a photograph of their ballot being completed; and people suddenly finding out that their landlord has registered six or seven people at their house just before an election, only for their names to disappear afterwards.

It is really important to understand that that is not endemic within the system; it is an example of how vulnerable the system is. If Tower Hamlets represents the future, we have to ensure that that future is terminated. We probably will not be burgled, but we lock our houses. The measures in the Bill are moderate and reasonable, and they ensure at least that we will not find some of our large cities run by kleptocrats—this is about rewarding friends; it is not necessarily about politics. Sorry, I went on a bit there.

Richard Mawrey: Could I just come in here on what Lord Pickles has said? The Bill addresses something that was a real problem in Tower Hamlets: the registration of political parties. The Electoral Commission blithely signed off Tower Hamlets First as a party, but it was a joke. It had no premises, and it had—as I discovered to my amazement by asking questions—no bank account. I said to Lutfur Rahman, “If I want to give a donation to your party, do I have to come along with an envelope of used non-consecutive fifties?” Obviously, he was dying to say yes, but that would clearly have been the wrong answer. You can see the levels to which it has come. If anyone can just say, “I am a political party,” and give themselves a name, you lay yourself wide open, particularly once they are registered and can say, “I am a registered political party and have all the rights of a registered political party.”

Lord Pickles: The system is vulnerable. To misquote John Major, it is about old maids cycling to evensong and drinking warm beer, and in most places, that rather twee, gentle system kind of works. When I was a councillor, in gentle rural villages in my own wards, it was fine, but where there is money, we have to protect the integrity of the ballot and of governance.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

Q Richard, can I start with you and the Tower Hamlets examples that you have already outlined? Thank you for that. You said that in Tower Hamlets there was a wide range of different types of electoral fraud that was used to try to manipulate. I was particularly struck by what you said about public funds being diverted for political advantage. Does anything in the Bill prevent public funds being diverted for political influence?

Richard Mawrey: The Bill, as I read it, does not make any particular changes to the laws relating to bribery. The laws relating to bribery, in actual terms under the 1983 Act, are quite clear. The problem is that bribery was a common law offence, and it then became a statutory defence under the Victorians. Before the secret ballot, the Victorians had a system whereby you voted in public and everyone knew how you voted. Rich candidates would simply put money in the hands of the electors, who would not be very large in number, to pay them to go and vote. That was the principal thing that led to both the secret ballot and the introduction of electoral courts in the 1860s.

We have moved on from that now. Very few candidates have the sort of money that allows them to put fivers in people’s pockets, so to speak, but they do control public money. The answer is not necessarily electoral law, but better control, particularly in local authorities, of local authority finance. It is better auditing and more independent scrutiny. The law is clear; it is policing it that is the problem. You don’t need to change the law; you need to change the policing of it. Would you agree?

Lord Pickles: Yes, I think I almost certainly would agree. When it starts to go wrong, it is a terrible thing. I do not think I am betraying confidences, because I am sure they would be happy for me to say this, but the two Labour Members of Parliament within the borough came to see me and laid out all these various things, and said that basically the Electoral Commission was ignoring them, that the police were ignoring them, but there was something deeply wrong within the administration, and they urged me to take action.

Obviously, a Secretary of State can only go in on a reasonable basis, and I went in on a reasonable basis because it seemed to me that the way in which grants were being delineated for every small thing was entirely wrong, entirely arbitrary and not based on fact. So the point is that this Bill is about just tightening up and trying to make the system reasonably proof in terms of personation and various other things. It is not going to cure corruption and it is not going to stop bad people being elected; it just reduces the chances of a community being abused.

[Cat Smith]

Q Turning to postal votes, this legislation obviously makes some minor changes to the way in which postal votes are handled, in terms of limiting the number of postal votes that an elector may hand in at a polling station on the day, but there is nothing to prevent postal votes being posted in a post box. So I just wonderer whether you consider that the legislation might not be effective in reducing postal votes, which I think you said was the greatest weakness in the system.

Richard Mawrey: I appreciate the risk of going on about my King Charles’s head. Postal voting is going to be open to fraud, however hard you try and however much you do. Legislation has, since the Birmingham judgment, tried to stop all the mouseholes, but as the old saying goes, the better mousehole breeds the smarter mouse, so you can try and stop all your mouseholes but the mouse will still get out eventually. Obviously you need to tighten up registration, but the problem is resources. If every time somebody wrote in asking to register Mr Jones at 1 Acacia Avenue, if you had unlimited resources you could send someone around to see whether there was a Mr Jones at 1 Acacia Avenue. Had they done that in Slough, things would have been very different.

The thing that blew Slough open was a small road—I still remember its name, Hawtrey Close—of four houses, in which, just before the election, 19 people were registered to vote. What drew the attention of the Labour party, who were on the qui vive for fraud, was that they went along to Hawtrey Close and all four houses had been boarded up and unoccupied for several years. None the less, they had 19 voters in them. Surprisingly, they all voted for the winning candidate. But you couldn’t blame the town hall. The town hall said, “Here is an address. It is a perfectly good address.” The town hall didn’t know that the houses were boarded up. “Here are these people wanting to be registered; we’ve got to register them.” They did not have the resources to send someone out who would look at this thing and say, “Of course there’s nobody registered, as there’s no one living there.” So that is the problem. It is resources, not the law. The law is quite clear: you cannot be registered unless you are a genuine person, living within the ward or constituency.

Lord Pickles: What the Bill does is restrict the number of people you can handle. So you cannot go door to door collecting postal votes, as has been common practice between all political parties for a number of years. I did receive quite a lot of representations from people who just hated the whole idea of postal votes and wanted to go back. I am old enough to remember when you had to make a case—you had to get your employer or your doctor to sign to say it was necessary. But I took the view that it would be just about impossible to turn the clock back and go back to that kind of system. It is probably not fashionable to mention Richard Nixon, but he was told, “Once the toothpaste is out of the tube, it is awfully hard to get it back in.”

Rather than trying to go back to what was, in some people’s eyes, a golden age, we need instead to restrict it. Returning officers tell me of people arriving at 6 pm on polling day, which as we all know is a busy time, with a crisp packet box full of postal votes—perhaps 200, 300 or 400, which all have to be separately verified, which slows the process down. It could be that that is all straightforward, but I do not think so. It is trying to restrict the handling of postal votes, ensuring that parties cannot pick them up—I think the Labour party went round with a mock ballot box to put papers in. I am not suggesting that it was attempting to do anything wrong—it was trying to get the vote out—but it is important to demonstrate that a vote is important and should not be handled by anyone other than the voter.

[Cat Smith]

Q I wanted to pick up on the example given of Birmingham, which was quite a long time ago. The laws around postal votes and electoral registration have changed since, and a national insurance number is now required, or an electoral registration form with a date of birth and a signature on the postal vote return slip. I wonder whether the example given, of a street where people were registered and postal votes applied for, could happen under the existing law today and the changes that have been made.

Richard Mawrey: It certainly could happen. Instead of having 19 entirely fictitious people living at the address, someone could—if they have sufficient organisation—get entirely genuine people who just live somewhere else. That was done in Slough, where a whole lot of people were registered who actually lived in Walthamstow. Walthamstow did not have elections, so the people were not voting twice. The people registered in Slough by the fraudsters were genuine people, with national insurance numbers and everything—they would have been A1 at Lloyd’s—but they just did not live there. They claimed to have moved just before the election and, curiously, moved back to their old houses just after the election. It was of course fraudulent, and not one of them had set foot outside Walthamstow. Their names were being used, with their permission and their connivance. If someone knows their national insurance numbers, it can be done without their connivance, because the signature on the application form for the postal vote can be replicated if someone has a copy of it.

National insurance numbers were not needed back in 2008, when I did Slough. It is difficult now to put a completely fictitious person on the register, but it is not difficult to harvest votes, with or without consent, from real people who live somewhere else. Of course, the old Irish habit was to vote the graveyard.

Lord Pickles: In terms of warehousing, where the ballots are changed, the signature would not be touched because it is outside the envelope. It is the envelopes that are opened and the vote changed. The signature authenticates something that has been changed subsequently.

[Cat Smith]

Q If I understand it correctly, Richard, in most cases it would require the consent of everyone involved. The people registered at an address that they were not actually living at would need to provide their national insurance numbers—they would have to be in on it. That makes it harder to do on a bigger scale, which feeds into your point that the smaller electorates of local government make it easier to manipulate the outcomes than in a parliamentary election. Given that, does it therefore follow that increasing the turnout at an election makes it harder to commit electoral fraud, so a higher turnout is a good mitigating factor against electoral fraud and a good weapon to combat it?

Richard Mawrey: I think that is absolutely right, because fraud is obviously a relatively risky occupation, and the more bogus votes you have to put in, the more difficult it is. That is why it is very rare in parliamentary constituencies and would be completely unfeasible in any form of referendum, even a local referendum. However, when 50 or even 100 votes is likely to make a difference, then the game is worth the candle, unfortunately.

Lord Pickles: To be clear, nobody really cares that much about Parliament. There is no money in Parliament. You would have to be certain that someone was eventually going to get to a point where they would actually be issuing contracts. However, there is plenty of money in local authorities. As you are probably well aware, there have been, I think, two attempts to unseat a Labour MP using these kinds of methods. Pleasingly, they fell well short, and I was pleased to offer help and assistance in that, because it is massively important that this place remains absolutely secure, but the real money is in local authorities, not here.

Richard Mawrey: And, of course, a local councillor perversely has rather more influence, particularly in the sorts of boroughs where influence is perceived by the public to matter—“Oh, yes, he can swing this for me. He can swing that for me”—far more, curiously enough, than the MP himself or herself, who may be seen as a rather distant figure who you might go and moan to if your granny is not getting proper treatment from the NHS, or something like that. If I may say so with respect, you are not handling the readies: you are not dishing out jobs or contracts, and that is why people are keen to become local councillors. In some cases, it is a different sort of keenness from the keenness to become a Member of Parliament.

[Cat Smith]

Q My final question is about the resources of local government, because under this legislation, local government will be asked to do more because of the requirement to issue free voter ID cards. Our electoral returning officers are quite stretched already, and the Association of Election Administrators has already made representations about the pressure on electoral registration officers. In terms of their ability to spot potential fraud, given the increase in workload and the cuts to local government, do you have concerns about the resources of local government to be able to do their jobs, frankly?

Richard Mawrey: I know it is not in your Bill, but it occurred to me that a solution—although not necessarily one that the Electoral Commission would welcome—would be if the Electoral Commission had resources so that, if necessary, it could assign someone. If a local registration officer or returning officer said, “I think we have a problem, but we cannot handle it because we do not have the resources,” the Electoral Commission could, under this theory at least, put in what might be termed a hit squad to go and see what was going on and deal with it.

That would also have the benefit that this would be an independent, external body coming in, so the local councillors and the local officials would not be getting local flak. These would be people rather like the commissioners appointed by Lord Pickles to go into Tower Hamlets, who were completely independent of the borough and were therefore able to find out all about the financial misappropriations and so on. We have the ability to put in external people. Frankly, I would not necessarily rely on the police, because one, they are overstretched, and two, they do not have the available techniques, resources and skills to deal with this—and they hate doing it, and they make quite clear that they hate doing it. My suggestion is that the question of whether the Electoral Commission itself might be able to assist might at least be considered at some future time. I do not know whether you would go along with that.

Lord Pickles: This is a really important question. If you go to a count, say for Parliament, the chief executive turns up or maybe the mayor, and I as the returning officer—the person who is doing the work is not them, and for too long, electoral registration has been in the legions of the damned. They are forgotten about and not properly resourced.

If chief executives understood that it was part of their terms of contract to deliver a fair poll, and that they would be personally held responsible, that would be an important point. The point that you make about electoral returns being poorly resourced is absolutely right. I do not think that it would take an enormous increase in resources to improve the situation, but what is in the Bill makes their life that bit easier because there are fewer things for them to worry about. I agree with the substantive point that you make.

[The Chair]

I have a long list of Members who want to come in, so I ask Members to keep their questions short, and witnesses to shorten their answers. I will endeavour to get everyone in.

[Alec Shelbrooke (Elmet and Rothwell) (Con)]

Q I am seeking a comment on what I am about to read to you. I apologise to the Committee that what I am about to read is exceptionally offensive and, frankly, quite evil. This relates to the Batley and Spen by-election. This is something that happened in June of this year. What I am about to read to you we were not able to trace, no matter how hard we tried, but I seek your comments on it. This relates to your comment on religious pressure:

“Brothers & Sisters of Batley & Heckmondwike I am publicly calling out members of our communities who we have supported in the past: Shabbir Pandor, Ghulam Maniyar, Dr Rajpura and others who have shamelessly brought the Labour Candidate (who is openly Lesbian) to the ‘Masjids’ (the house of Allah) for votes. Would Allah be happy with their actions considering he destroyed the people of Lut A.S which is clearly referenced in the Holy Quran as a lesson for mankind? We are already powerless in schools against forced LGBT education and the effect it is having on our children. Must people from our community promote this agenda too? Mr Maniyar who is part of the Muslim burial committee is trying to land his daughter Fazila the job she previously had under the late Jo Cox. I ask him ‘Would you like to be buried with this on your conscience? You are promoting an MP that could potentially harm the Imaan of our children.’ This is not an endorsement of another party or candidate. I want you all as a community to understand that the blind loyalty to the Labour Party of these people for selfish gains be it ‘peerages’ or ‘better job roles’ is being asked FROM US at a cost of the corruption of our future generations. (PLS SHARE THE TRUTH SO PPL MAY KNOW)”.

I apologise for how offensive that was, but I think it is important to the Committee. That was in June of this year, in the parliamentary by-election. I seek your comments on what I have just read.

Richard Mawrey: I quite agree with you that it is offensive, but there is an obvious line to be drawn regarding individuals expressing strong, perhaps bigoted, perhaps extreme religious or indeed ideological views, for example against LGBT people and so on. The key, I think, with religious influence is that, first of all, it has to be directed. Directed against a candidate is perfectly okay for what was, I think, section 115 of the Representation of the People Act 1983, because it is just as much an offence to try to get somebody unelected as to get a named person elected. Quite often if something false is spread about a candidate’s personal character, so as to engage, I think, section 113, it does not matter that that may not be directed to the election of any other person, but just in order to get a candidate unelected, as it were.

The point about religious influence is that it has to be a way of influencing people. The fact that somebody expresses a view such as that might just fall short. If that person were himself an imam, some other religious teacher, or somebody of standing within the community who is saying, “Don’t vote for this candidate because their views are against our religion,” then you probably might breach the threshold of undue influence, because people would be voting not on general principles but on strictly narrow sectarian principles. That would be true of any religion; it just happened in this case to be Muslim.

Lord Pickles: I have nothing to add to that. I agree with everything that Richard said.

[Brendan O’Hara (Argyll and Bute) (SNP)]

Q I have a couple of questions, directed to both of you, but I will start with Lord Pickles. You said that there have been some shocking examples of postal vote fraud, and you gave some examples. However, you said that it is not endemic in the system but that the system is vulnerable. Do you think that, with the system being vulnerable, we are missing an opportunity to tighten up on postal vote fraud in the Bill? It does not seem to be a huge part of the Bill. Given what you have said, the Bill seems to be almost looking in the wrong places to tighten up on fraud. Where could we tighten up more on the postal vote fraud that you say is not endemic but to which the system is vulnerable?

Lord Pickles: Thank you. That gives me a brief opportunity to clarify the remarks. If postal vote fraud was widespread, it would be too late, and this place would be stuffed with people with a vested interest in keeping a vulnerable system. It is vulnerable. We have delineated a number of court cases, over several years, and showed how vulnerable it is. What we want to do is to close that.

Obviously, it is up to the Committee to move various amendments further to restrict postal votes. The recommendations that you have here plough a middle route between taking away from things that people have become very used to and restricting too much. For example, having to renew every three years is important; restricting the number of people who can handle postal votes is important. As Richard says, postal votes are by their very nature more vulnerable than votes at the polling station. Things like carousel fraud are no less possible, but they are hard to do.

You have to come to a judgment. Certainly, I would urge you to put down some amendments to test the Government on restrictions on postal ballots. However, in many ways the horse has bolted on that—people have become used to it. Going back so that everybody voted in person, except in cases of illness or business, would probably be a step too far, but it would certainly be worth putting down a probing amendment. Obviously, I am not saying to my Conservative colleagues that they have to vote for it, but nevertheless it would be a good debate.

[Brendan O’Hara]

Q The problem that you have both identified is around postal voting, and the examples of personation that you have given have been pretty few and far between. It is fair to say from what you have said that where the system is most vulnerable and weak is around postal voting.

Richard, you were talking about a particular culture that existed in Tower Hamlets and manipulation by religious means. You said yourself that that was an extreme case. The Tower Hamlets example has been used in previous debates to claim that voter ID cards are absolutely necessary. In your opinion, how would voter ID cards at polling stations have changed what you witnessed at Tower Hamlets?

Richard Mawrey: Tower Hamlets would be a bad example. In Tower Hamlets, as I said, they virtually ticked every box of electoral offence. But for my being rather kind-hearted, they would have ticked the intimidation box as well—they ticked them all. Voter fraud played a very small part, funnily enough, in Tower Hamlets. There was a handful of personation cases. Because they were orchestrated by the candidate, they were enough, as it were, to get him over the line.

If you as the candidate, or as an agent of the candidate, procure one false vote, you are out. It is all or nothing: you do not have to show that it made a difference. There was simply a handful. I regret to say that, in that case, a number of people who were carrying out these frauds by registering themselves at the wrong address were people who were councillors who lived outside the borough and registered in the borough, but that was a rare occurrence.

Birmingham, in particular, Slough and Woking were all cases that were purely postal fraud. Voter ID at polling stations, frankly, is neither here nor there. Personation at polling stations is very rare indeed, because it is so dangerous—if someone turns up to a polling station and says, “I am Mr Jones of Acacia Avenue”, and somebody says, “I know Mr Jones; you are not him”, the next thing is a policeman’s hand on his shoulder and he’s up at the local Crown court—but postal vote personation, whereby you are voting in the name of a non-existent person or a person who lives somewhere else, is very difficult to detect and to trace. It is only when you have a full-scale petition that it comes to light and you are able to unseat someone.

Voter ID in polling stations is all right, but voter ID for the purposes of registering votes would require checking. If you do not have a mechanism to check—even just to spot check—then registering people at addresses where they do not live, which is the key to that sort of postal fraud, which is a form of personation, voter ID is going to be quite difficult to operate. What you need is simply to check that if Mr Jones is registered at 1 Acacia Avenue, there is a Mr Jones living there. That takes money and resources. We do not have an identity card system in this country, for good or ill, so there is no way, obviously, of cross-checking that. Voter ID only takes you so far with postal votes. Beyond that, the system is vulnerable, and necessarily vulnerable.

Lord Pickles: Thank you for the really interesting question. I did not recommend photo ID, but I think things have moved on since then. I was very interested to see that the Government said that 98% of the population has some form of photo ID. To emphasise the importance of voting, to be able to demonstrate that you are that person by producing, in my case, my bus pass—I could not use my driving licence, because I still have a paper one; I am that old—or something from work is a very sensible process. It occurs to me that the 2% who do not have any kind of photo ID might in itself have a wider use beyond voting in a polling station. It is an important check and a way of emphasising the importance of the vote. If Barack Obama can sign for his ballot paper, which might be an alternative, it is not unreasonable to have the same level as we have for getting a pair of Nike trainers from Amazon.

[Brendan O’Hara]

Q That is a purely subjective view. The fact that you did not recommend photo ID in your report and it is now being introduced would suggest that it is a solution seeking a problem.

Lord Pickles: No, not really. I did bear in mind what had happened in Northern Ireland. I am sure you will recall that it started with paper ID for the first few years and then went over to photo ID. A lot of things have happened. Essentially, what the Government are suggesting, so far as I can follow what they are doing, is that we are moving to the Northern Ireland system without an intermediate stage with paper ID—

[Brendan O’Hara]

Q Sorry, Lord Pickles, can I interrupt? Are you seriously suggesting that the situation in the United Kingdom in 2021 bears any similarity to the situation in Northern Ireland in the 1980s and 1990s?

Lord Pickles: In what respect? I do not understand the question.

[Brendan O’Hara]

Well, you say we are moving to the Northern Ireland system. The Northern Ireland system was introduced for very specific reasons. Are you saying we should move to the Northern Ireland system because there are similarities between what is happening here in 2021 and what was happening in Northern Ireland in the 1980s and 1990s?

Lord Pickles: I think you are putting words in my mouth. My remarks on Northern Ireland were restricted to the point that at first there was a paper check, and then photo ID. The Government are suggesting that we move on to photo ID now. What has changed since 2016 is the growth of photo ID. It is important to be able to demonstrate who you are when you go to the polling station, not just in order to deal with personation but to emphasise the importance of the vote. No doubt you will spend many happy hours together debating that point. I shall read the debates with great interest.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

Q I wanted to pick up on your point about policing, Mr Mawrey. You have been very critical, in both your judgments and your previous evidence to Parliament, of the police and their determination not to get involved. My question is twofold. What does that imply about how many cases have not been brought that perhaps ought to have been? Does the Bill empower the police, and would you expect them to be more willing to be involved in future?

Richard Mawrey: Those are two separate questions. One was whether the police are empowered. They have the necessary powers now. In the aftermath of my critical remarks in the Birmingham judgment, a number of forces had designated officers to deal with the issue, but for various reasons, there were never enough officers for some to be spared to deal with electoral matters only, so they tended to be somebody who added this issue to his or her other duties—say, with the fraud squad, or whatever it was. They did not have the time or resources, because obviously this was regarded—not unreasonably—by some police forces as being very low priority. They tend to think, “This is a squabble between politicians. Let them sort it out.”

In certain areas—Tower Hamlets is a good example—the police force was wary of the local politicians, who were, of course, only too anxious, particularly in the case of Lutfur Rahman, to meet any sort of criticism or investigation with cries of “Institutional racism!”, mentions of the Macpherson report, and all that. The police were wary of dealing with that. They have the powers; whether they have the resources and the will is an entirely different matter.

On whether lots of cases are going undetected, the answer is undoubtedly yes. It is very difficult to prove fraud, and when you have proved it, it is very difficult and time-consuming to prove who benefited from it. In some systems—in Australia, for example—you can prove fraud until you are blue in the face, but you no longer prove who benefited from it, so anyone elected with fraudulent votes stays elected. That is obviously not a good idea. What you see in the cases that I try is the tip of the iceberg, and those cases exist only because concerned citizens are prepared to put their money—their houses, sometimes—on the line in order to fight that fraud. You can end up, as the petitioners did in Tower Hamlets, with a large order for costs against someone who cheerfully declares themselves bankrupt, and you find yourself having spent a fortune doing what you think to be right, only to see none of that money back.

What the Bill does not deal with, although it might have done, is any reform of the process of electoral petitions, trying disputed elections, and all that—things on which Lord Pickles and I have given evidence on other occasions. I am sorry that it does not deal with that, but it is a big, long Bill; perhaps you will get round to it later. The idea that it should be made easier for elections to be challenged by citizens or candidates, and less expensive—

[The Chair]

I am sorry; I have to come in there. We have one minute left, so we can have a very short question and answer.

[Fleur Anderson (Putney) (Lab)]

Q I have a very short question. To clarify for the record, what was the proportion of postal vote fraud, as opposed to in-person, polling station fraud, in Tower Hamlets and Birmingham? I think you have said that all the fraud in Birmingham was postal votes, for example. Is that correct? What was the proportion in Tower Hamlets?

Richard Mawrey: The proportion proved in Tower Hamlets was very small—really only a handful of votes were proved to be fraudulent. It was enough, because they had been orchestrated by the candidate himself.

[Fleur Anderson]

Q Do you have the number of postal votes?

Lord Pickles: To get a prosecution, you do not need to prove everything; you just need to prove some. I agree entirely with the point about electoral petitions. I would like to put that on the record.

[Fleur Anderson]

Have the elections in Birmingham and Tower Hamlets—

[The Chair]

Order. I am afraid that brings us to the end of the time allotted for this panel. On behalf of the Committee, I thank our witnesses for their evidence.

Examination of Witnesses

Councillor Peter Golds, Gillian Beasley and Assistant Chief Constable Gareth Cann QPM gave evidence.

10:26

[The Chair]

For this panel we have until 11.25 am. I will bring in Cat Smith first and then the Minister, but please take no more than 10 minutes each, in order to leave time for Back Benchers.

[Cat Smith]

Q Thank you, Ms Rees. My first question is to the witnesses from local government. What will be the practical and cost implications for electoral administrators and councils of implementing the Bill’s voter ID proposals? Also, what pressure will there be on electoral administrators as a result of having to cope with two different categories of EU citizens when it comes to voting rights—whether they are a qualifying EU citizen? Do you anticipate any difficulties in managing that, and what kinds of resources do you expect to have to increase or bring in to meet those difficulties, as well as the requirements to administer free ID cards?

Councillor Golds: Is that for me first? Remember that I am an elected councillor, rather than an official, but obviously I can give you some ideas because I am extremely familiar with the electoral services department of Tower Hamlets Council and how it interfaces with the rest of the council. The electoral services department does understand the need to clean up the system we have, and I believe that there is a will within our council to provide extra resources to electoral services, but of course it is the Government who pay costs toward electoral services. One thing that the department often complains about is the adverts that go out when there is an election, because suddenly they will be inundated when tens of thousands of people ask, “Am I on the electoral register?” A quarter of a million people apply to go on the electoral register, but about 85% of them are already on it, so electoral services are sitting there saying, “Yes, yes, yes.” That is expensive and time consuming.

Gillian Beasley: There are important resource implications for both areas. Looking at how electoral services teams will have to respond, we certainly anticipate that having to produce these new electoral identity documents will require additional resources. We know from experience that voters tend to turn their minds to voting very close to polling day, and if they discover that they do not have the requisite documents to prove their identity and we have to issue those documents, we will probably see a surge at what is the busiest time for electoral services teams, the pre-election run-up, when they are dealing with late registrations, and proxy and postal vote applications, so there will be resource implications for them.

Returning officers, which is what I have been since 1999, will probably have dedicated teams that are able to do that, because when someone discovers that they do not have the requisite documents and they need to bring in other documents, depending on what those are, they sometimes do not bring the right ones and we have to send them home, so there is a lot of administrative burden in that regard. We will also need to train and resource that at polling stations in a better way, because there will be problems in polling stations over this. We need confident presiding officers who understand the law and are trained well, so there will be additional burdens there.

I think that in our arena, in particular, there will be significant resource issues. It is not the case that we do not want to do it; we just need to ensure that is highlighted at very busy times during the electoral process, because of voter behaviour. That has been our experience in Peterborough, and I am sure that it is the experience of other returning officers.

Assistant Chief Constable Cann: From a policing point of view, it is difficult to estimate with any precision what the resource impact might be. Some elements of the Bill, if put into law, might go some way towards helping. For example, voter ID could potentially help to avoid various demands that we have around it. I do not want to overstate that, because it would not be a huge thing, but it could be helpful. On the other hand, until we understand fully what is involved in the digital imprints regime, for example, it is a little difficult to be precise about the likely impact on police resources at the moment.

[Cat Smith]

Q If I may follow up on that, my question to you, Gareth, was going to be slightly different. It is on the policing of electoral fraud, particularly in relation to overseas voters. With regard to overseas voters making political donations that are unlawful, or voter fraud, what powers does the UK have to detect infringements and prosecute?

Assistant Chief Constable Cann: With regard to any infringements that might be committed overseas or by non-UK citizens, for example, our powers to deal with that are very limited.

[Chloe Smith]

Q I welcome all three witnesses. I have one question for each. Councillor Golds, thank you for giving us your time today. Can you tell us a little about the experience on the ground of how people might have been victims of electoral fraud in Tower Hamlets, and perhaps how difficult it can be for some of those stories to come forward?

Councillor Golds: I have been studying it. I have been involved in elections in the borough for 20 years. I should quickly declare that over the years, I have been an election agent in 13 general elections. In fact, I have been an election agent for every kind of election we can have in this country, from Parliament and European Parliament to GLA, GLC and local council, and I have never seen anything like what I saw in Tower Hamlets.

The thing that always upsets me, and that I find terribly disappointing, is that ordinary people’s votes were effectively stolen. When I knock on a door, somebody will say to me, “Mr Golds, my father used to vote for Mr Attlee.” I smile at them, and then they say, “But what’s the point of voting now?” The problem is that, as both Mr Mawrey QC and Lord Pickles said, those are the people whose votes have been stolen. Most of all, however, there are our Bangladeshi voters, who sometimes come forward and say to me, as their local councillor, “Can you provide this information?” I say, “But you have to go on record, otherwise it is hearsay,” and they will then say, “I’m frightened to do so.”

That is a very intimidating situation, and I have to say it is not only in Tower Hamlets. Mr Shelbrooke read what had happened in Batley and Spen. A few years ago I took a friend of mine, who had contested an election in Calderdale, to meet the Electoral Commission. It was a waste of his time, because the Electoral Commission, as it so often is, was completely uninterested. He had a dossier as large as the one I brought with me today, which he handed to the Commission; as far as I know, it is probably still sitting in an archive, gathering dust.

[Chloe Smith]

Q As a brief follow-up, could you please explain what types of fraud people may have encountered? Be specific; is it personation, postal votes or other types?

Councillor Golds: In the election petition, I submitted eight witness statements and approximately 2,000 pages of backing documentation, covering as much as possible. That includes, for example, where we tracked fraudulent postal votes using postal vote returns in the election data. You can see how things were marked on postal voting.

Tracking personation is much more difficult, but I will give you an interesting example. In the 2010 mayoral election, when Lutfur Rahman was first elected, I wrote one of my many unanswered letters to the Metropolitan Police. At 7.15 on polling day, I was present at Christ Church Primary School polling station in Brick Lane. A man entered and approached the desk where electors from Brick Lane were being processed. He had in his hand a poll card and envelope. However, this poll card was dated May 2010, was issued by the London Borough of Enfield, and referred to the Edmonton general election constituency. He tried to give a name and address in Brick Lane but was unable to accurately do so, by which time he was leaning over to the council staff and trying to point at an electoral register in front of the council and say, “That’s me, that’s me.” Eventually, the council officer started to ask questions, and he left the polling station.

I would add that outside there were supporters of Tower Hamlets First with copies of the electoral register. They mark on the electoral register what we all know exists: the vote return. They know if people vote. They have a list of people who may not regularly vote, and people were coming up, talking to them and effectively being given names to go into the polling station.

If you want another extraordinary example—one that made all sorts of press—it was the incident in the 2006 by-election in the Shadwell ward where a figure, about six-foot-something tall, dressed from head to foot in traditional Islamic gear but with huge red trainers, entered a polling station. An hour later, the same figure entered the polling station, and then an hour after that they entered the polling station.

The Conservative and Labour polling agents then compared notes, rang their agents and were told that the one thing they could do would be to ensure the presiding officer asked the statutory questions. When this person came for the fourth time and the statutory questions were put, he merely hooked up the clothing he was wearing and fled down Bigland Street. Everybody asked the policeman on duty what he was going to do, and he shrugged his shoulders and just said, “Nothing. It’s nothing to do with me.”

Those are two particularly extreme examples, but I can give you examples of cases, exactly as Mr Mawrey said—I have them recorded—where for houses that were boarded up, names appeared on the electoral register and votes were cast, or where people turned up only to discover that their votes had been stolen. Staggeringly, on 6 May this year, Francis Hoar, the barrister for the election petitioners in Tower Hamlets, went to vote in Lambeth and unfortunately his vote had already been cast on his behalf. That is what went on.

[Chloe Smith]

Q Thank you very much indeed. I have a brief question for both Gillian and Assistant Chief Constable Cann. Gillian, thank you very much for joining us; it is good to see you again. We have done some work together, because Peterborough was part of early pilots on how to tackle electoral fraud, and you took forward measures about postal and proxy voting. With reference to the measures in the Bill—for example, clause 6, introducing the requirement of secrecy for postal votes—could you explain to us the problems you encountered, how you tried to deal with them and how you think the Bill will affect that?

Welcome and thank you to ACC Cann, as well. Given that electoral law can be a relatively niche area within policing, can you tell us how the wider profession works to ensure that the right knowledge, training and capacity are in place in local forces to enable them to play the role that is needed from the police?

Gillian Beasley: I will start by saying that we have a very close relationship with the police in Peterborough and our electoral integrity plan is co-produced between us and them. Our police, as well as our electoral services team, have a really good and detailed understanding of the electoral offences in law. There is a lot of co-operation there, which has helped us to home in on where integrity is at risk.

First, I would say that we have seen less personation in polling stations in the recent past. Probably our last prosecution was some years ago, and that is because there are some tight measures not only in polling stations, but around ensuring that we have a good electoral register. We go through our electoral register very carefully, removing duplicate names, and we visit a lot of premises where there are a number of people registered or where we are told there is an empty property, to ensure that they are the right people and that they are real people. Of course, the individual voter registration division has helped tremendously with that.

Where we have issues, as the Minister knows, is in postal voting. That is where our concerns are. The allegations we tend to get are around harvesting. They are allegations of people going into properties where people live—they are proper voters who have applied for a postal vote—and getting that person to make a declaration and signature with date of birth, but not fill the ballot paper. Those are then taken away and the proxies put against the relevant candidate. Those are the allegations. We get allegations about those being taken from properties, and where we get those allegations, we work together with the police in joint operations to visit those premises and make it absolutely clear that there is no tolerance for that and that those properties will be raided. We have never had any prosecutions for that, but we have made a clear statement about not tolerating that kind of behaviour.

The provision on not handing your postal vote to a campaigner is welcome. We will use that as a good communications tool to say to people, “Your vote is your vote. It is important that you post your vote or take it into a polling station.” The restrictions on how many postal votes can go into polling stations is a good provision, and documenting who is going in with those postal votes is important. Harvesting those votes will now be an offence, and although it will be difficult evidentially to get people to make those allegations, to stand by them and to go to court, nevertheless as returning officers we can do some important publicity around that fact: “This is your vote, you must keep it and it is a criminal offence if somebody takes it from you.” I see some strength there, and I support those provisions.

The other area I think is interesting is around undue influence. That is by far the most difficult; we hear allegations, but it is difficult for people who are subject to whatever form of undue influence or intimidation it may be to feel confident to come forward, give evidence and take that through to a court process. We encourage people to do that, but it is still difficult for them.

The change in the provision on undue influence, where you induce or compel somebody not to vote at all, is important; that covers the point that was made about collecting votes where they have not even been marked. My issue as a returning officer is that I send out thousands and thousands of postal votes, and we get them carefully delivered to the correct premises, but what happens behind those closed doors? It is about getting people to confidently give evidence if they are subject to undue influence or somebody comes and tries to take their vote. As I say, we have a really good relationship with the police, who are prepared to take forward and understand the offences. There is a joint communications plan between us and the police telling people that we will take it seriously, take cases forward and investigate every single allegation that is made, but it is still very difficult to get people confident enough to come forward with those kinds of allegations.

Assistant Chief Constable Cann: In terms of developing police knowledge and capacity, I like the description of electoral law being a niche area. I think that is accurate. The RPA is not a widely known piece of legislation among police officers.

One of the reasons that the national portfolio that I lead was created was to raise awareness through some degree of central co-ordination and training across police forces. One of the first things that we recognise is that we are not on our own with this. Gillian has spoken very well about the importance of partnership working between the police, the Association of Electoral Administrators, administrators more locally, the Electoral Commission, the CPS, the parties themselves and Royal Mail. We form strong partnership relationships with a whole range of people, which helps to build capacity and capability within the police service generally.

More specifically, we have established a network of officers, one in every force. We have SPOCs—single points of contact—who are the lead for that force for electoral-related matters. They are knowledgeable in electoral crime and procedure. They usually sit within economic crime teams, but not always. We have created a bespoke training course that is run through the City of London police, which holds particular expertise of its own in this regard. We hold an annual conference for all those single points of contact and a number of other people. There is a very strong, successful partnership from that conference particularly with the Electoral Commission, and with people such as Gillian and other electoral administrators.

We have developed the scope of the portfolio over the last 10 years or so to cover matters of policing the election itself—not just preventing and detecting any fraud, crime or malpractice, but policing the election, so matters of public order and wider security. We have developed guidance in relation to policing elections, which is available on the College of Policing’s website. It is called “Authorised Professional Practice”, and it is about the way police doctrine is expressed and made available to officers up and down the country.

I like to think that, certainly over the last 10 years or so, we have raised the consciousness in the service of electoral malpractice. It is taken extremely seriously and we have some extremely capable and knowledgeable people involved in the work, but it is fair to say that it is something of a niche area. Most officers will not come across it, and in any event the law is slightly difficult to navigate, even for those who have a particular interest and specialism.

[Nick Smith (Blaenau Gwent) (Lab)]

Q Good morning to the witnesses. I have two questions to ACC Cann. Do you think the penalties for those committing electoral fraud are sufficient to deter the bad actors?

Assistant Chief Constable Cann: I think the penalties vary, because there is a blend of a civil and a criminal regime at play here. I do not know, because I am not an elected person, a candidate or anything like that, but I imagine that the harsher sanction will be around matters such as being disqualified from holding office or taking part in future electoral matters, rather than a specific fine or a direct sanction. In that regard, there is some significant deterrence there. Generally speaking, when matters go to the courts, it is generally felt that the courts are quite keen to address the seriousness of the matter before them and hand down a suitable penalty.

[Nick Smith]

Q Thank you for that. My second question is this. Mr Mawrey, one of our earlier witnesses, said something like, “Voter ID at polling stations isn’t necessary because there is very little personation.” What is the incidence of personation at polling stations, do you know?

Assistant Chief Constable Cann: I think it is right to say that we have relatively small numbers of those offences coming through to us so, in that sense, it is not a major issue in terms of workload or demand for policing at election time. I imagine that in any case, part of the motivation behind the proposal for voter ID is an element of deterrence. In that regard, if it were to be brought in, we would see some value in that and would broadly welcome that proposal, notwithstanding the fact that, as I say, we do not tend to prosecute or get asked to investigate a significant number of personation allegations.

[Tom Randall (Gedling) (Con)]

Q Councillor Golds, you gave some examples earlier today about behaviour in polling stations. Had there been a voter ID regime in place in Tower Hamlets previously, do you think the behaviour that you saw in polling stations might have been different?

Councillor Golds: I certainly think it would have improved. We had a byelection as recently as 12 October, where in one polling station—the Sundial Centre in Shipton Street—the police were called on two occasions to disperse unruly crowds outside the polling station intimidating voters. That is one polling station in one byelection held this summer. I have to say that Assistant Chief Constable Cann’s description of the police activity is positively Panglossian in its optimism; I just wonder whether any of this has percolated through to the Metropolitan police.

[Tom Randall]

Q In Mawrey’s judgment, he described —possibly unkindly—the behaviour of polling staff and the police as taking the three wise monkeys as their role models. Do you feel that after the Rahman trial, the police picked up the issues that arose from it?

Councillor Golds: Frankly, no. There was an inquiry organised by the police called Operation Lynemouth, which said in one of its closing descriptions that

“The policing of the election and the subsequent investigation was deficient in too many areas. There was a lack of corporate responsibility, a lack of training and insufficient resources for the SET investigation. In essence, the MPS did not consider the election and investigation a priority.”

Of course, at the time when they were supposed to be dealing with Tower Hamlets, they were also involved in the infamous Operation Midland, which was another subject. Indeed, one or two officers involved in the Tower Hamlets fiasco drifted through Operation Midland, much to my lack of surprise.

One thing about the police that is truly concerning me, as recent as this year, is the need to defend the secrecy of the ballot. The fundamental Act dealing with balloting in this country is the Ballot Act 1872, which says that you vote in secret. That Act has never been repealed. I have before me an email—a complaint—from a resident. They say that upon their visit to their polling station,

“I noticed 2 separate occasions where 2 people were in the polling booths together with the male member ‘influencing’ the female member’s vote.”

That is one person at midday at the polling station where, incidentally, I vote.

This has travelled to the police and is now in the hands of one Trevor Normoyle, who is the detective inspector of the special inquiry team and, to my horror, informed us that he will be in charge of Tower Hamlets next year. He seems to be completely unaware of the requirement for secrecy of the ballot, because he writes to this resident to say, “In relation to the concerns you have raised, inquiries were carried out”—incidentally, the elector reported this to the presiding officer—“and cannot substantiate any allegation that any influence was being exerted within the polling station, nor are any other electoral laws being broken. The reported matter is now closed”. So nothing will be done, but here we had two people effectively instructing others how to vote inside a polling station in London in 2021, which the police are ignoring—

[The Chair]

Order. Can we move on? We are very short of time.

Councillor Golds: Okay, but it is an example of the police’s utter failure to look at electoral malpractice in London.

[Patrick Grady (Glasgow North) (SNP)]

Q Thank you to the witnesses. I have a rather technical question for Gillian Beasley, but I want to ask Councillor Golds a little bit more. A lot of the examples that we are hearing about in Tower Hamlets were described by the previous witnesses as “extreme” and “isolated”. In a lot of the examples, people have been brought to justice. The elections were annulled and the candidates were disqualified. What you are describing is police inaction. If your contention is that the police are not enforcing the laws as they already stand, what gives you confidence that the Bill will be any more enforceable or make any more of a difference? Is the contention that there is even more going on—there is even more fraud and there are lots of Tower Hamletses out there—and we are just lucky that we are picking up what is happening in Tower Hamlets, and we have to stop it happening elsewhere in the country where we cannot see it?

Councillor Golds: Let us be absolutely clear that the disqualification was nothing to do with the police, who completely ignored it. It was done by four brave citizens who lost a fortune on it, because they are liable for everybody’s costs, including Lutfur Rahman’s.

On the issue of potential Tower Hamletses, they are out there in other places. Commissioner Mawrey mentioned Slough and he mentioned the problem of Woking, where the returning officer himself said that he did not believe that he had declared an accurate result in all his time as a returning officer. There are issues in Bradford and in other parts of the country. Indeed, we heard from one of your colleagues, who read that extraordinary email that was circulated in the Batley and Spen by-election. That would be typical here.

Outside a polling station, in one of my elections, there were people placed to tell every single Bangladeshi voter two subjects: one, that Councillor Golds is a Jew, and the second, that Councillor Golds is gay. To prove the second point, they had an extract from the election address to ensure that it was understood that the person I have lived with for the past 23 years is male. That was done in London in 2010. Please, as Mr Shelbrooke has said, do not say it is not happening elsewhere. The Bill is essential to clean our elections.

Indeed, we have the appalling situation in Peterborough where a fraudster can sit at a polling station, can turn up at the count, can be present at the reception of postal votes and can stand there smirking for selfies. This is a man who has gone to prison for election fraud and who has been disqualified from voting, but who is taking part in elections. We can all see it. This man Tariq Mahmood tweets it repeatedly. We need the law clearing up so that we do not have what Alec Shelbrooke has said happened in the metropolitan borough of Kirklees, which is repeated in Peterborough and seen in Tower Hamlets. We want clean elections so that people on the Isle of Dogs can vote with the same security as Mr O’Hara’s constituents, the good people of Argyle and Bute.

[Patrick Grady]

Q I want to pick up on some of the questions that Gillian Beasley has been asked about the process of electoral administration. The Bill creates these different categories of EU citizens: EU citizens with retained rights and qualifying EU citizens. How do you anticipate that adding to all the other burdens that we discussed earlier, such as the surge in late voting and the potential surge in late applications for voter ID? How does the creation of yet more categories on the electoral register fit in with the overall package of the Bill?

Gillian Beasley: Thank you for that question. I was talking to my electoral administrators this week about those divisions, and there is undoubtedly going to be more complexity around that. It is already quite complex, if you walk into a polling station with a presiding officer, working out what all the letters mean and who can and cannot vote. I think it means that we need not only highly trained electoral administrators, but highly trained presiding officers. I think it has got a training burden. We are finding it more difficult to get presiding officers because of the complexity, and we will need some really detailed and careful training packages to make sure that the right people get to vote and we administer the register in a proper way. We do expect there to be some burdens and some additional resource needed to ensure we can administer that properly and carefully.

[The Chair]

Gareth Cann, do you have anything to add?

Assistant Chief Constable Cann: Nothing specific. Quite a few issues were raised by Councillor Golds there, but nothing specific for me to come back on, other than that it felt to me that the police had not so much ignored that allegation as assessed and investigated it, and unfortunately it could not be substantiated, which they reported back to the interested parties. I have nothing specific to add on the last question.

[Paul Bristow (Peterborough) (Con)]

Q Gillian, it is nice to talk to you in a different context, and thank you for everything that you do to keep elections free and fair in my city. You are right to say that there have been accusations of postal vote harvesting—I have seen it with my own eyes—so it is good to see that you are comforted that the legislation will help you with that. In the most recent elections in the city—certainly when I was elected in December 2019—the city council placed CCTV at polling stations. Will you explain why you felt the need to do that?

Gillian Beasley: In Peterborough, we have a range of measures to make sure that electoral integrity is maintained. The CCTV was a result of personation allegations of individuals going to one polling station to vote and then taking a polling card to another polling station. We decided to observe the polling stations and who was going into them very closely to see if we could pick up evidence of personation and use it in the prosecution.

CCTV is also a deterrent, to a degree. We are open about the fact that we have CCTV. We tell everybody, including the election agents, that that is going to happen, and we say that we will use the CCTV in evidence if we detect that kind of activity going on. Councillor Golds made the point about people congregating outside polling stations. We get to observe that, and if it is happening, we would get the presiding officer—or the police, who are sometimes in polling stations for assistance with personation—to go out and disperse those who are congregating, so that people can walk into the polling station and feel confident that they will not be subject to any intimidation or comment. We use CCTV for a number of reasons: for the purposes of potential prosecution and to keep an eye on what is happening outside the polling station so that we keep it free and enable voters to go in.

[Paul Bristow]

Q I have one follow-up question. Would you say that CCTV also gives the electorate confidence in the process and that personation and other things will not happen?

Gillian Beasley: I think exactly that. We want to say that we take it very seriously, and that seriousness is exemplified by the CCTV and the measures we have put in place. It is a confidence mechanism as well, and we communicate that not just to those who are involved in the administration, but to the wider public.

[The Chair]

Gareth Cann, do you have anything to add?

Assistant Chief Constable Cann: No, nothing on that one.

[Fleur Anderson]

Q My question is also for you, Gillian, on the nitty-gritty of the increased resources that you said will be needed. I know that my children will certainly want the free ID card to be able to go into pubs and nightclubs, so there will be more demand for them all year round. As you said, there will be a peak about two weeks before the election, when people realise that they need it. How many staff do you think you will need all year round to provide those ID cards? How many additional staff will you need in that peak before elections, and how much will the additional training cost? Have you been able to provide the estimate of all the costs of what the Government have asked for?

Gillian Beasley: We have not done that yet, but we have started to think about working out how many people we think would apply and how many people would have the ID so they would not have to apply. At the moment, we think we probably need one more administrator just to make sure we have enough before the election. Running up to the election, speaking to my electoral administrators this week, we will probably mobilise a small team of two or three people. The reason for that is because we know that people will come in that surge—people will feel anxious because they will be worried that they will lose their votes, so we need to be responsive and be confident that we can help them. Inevitably, they will not in the first case bring the right documentation—that is our experience—so they will need to go back.

With the surge and the late registration, I think probably one additional person in the team and probably a really good team of about two to three people around the surge period, to deal with the throughput and to make sure that we do not disenfranchise people, which is the worst thing we could do. That is the first thinking that we have, but experience will tell us. We will probably overstate the resource in the first instance so we do not fall foul of it, because we want to make sure that a new provision is properly implemented in our area and gives confidence rather than lack of confidence to the electorate.

[Fleur Anderson]

Q How much did the CCTV—really innovative work—cost to put in?

Gillian Beasley: We have worked with the police on that, and they have employed some of their CCTV. We were able to use our own CCTV as some of that is in the right place. The cost of the CCTV was not huge. The biggest cost is when we have to act. The police resource in Peterborough is quite considerable on the day. We have police in a van to help us manage what is happening inside and outside the polling stations. We get a good sign up by the police to give us that resource on the day. We do cost that out at the end of every election and we have our policing plan in mind for the next election.

[Fleur Anderson]

Q I have a quick question for Councillor Golds. Are you now confident that Tower Hamlets elections are done with integrity? Can the people of Tower Hamlets trust the results of elections now?

Councillor Golds: In all honesty, no, because we had the by-election in Weavers ward on 12 August. There were two incidents of mobbing in one polling station. I was interested that Gillian Beasley mentioned the steps they take in Peterborough to deal with mobbing. In Tower Hamlets it can reach dozens, sometimes hundreds, of people. I refer you all to a report by an organisation called Democracy Volunteers, which talks about the mobbing of polling stations and about family voting inside polling stations.

The issue of people being unable to reach a polling station is difficult. I was walking down Shipton Street at dusk on 12 August, which I calculate must have been just after 9 o’clock. There was a woman inside; the presiding officer had called the police, and seven police officers appeared, because she could not get to the polling station without being surrounded by men who were canvassing or harassing her. A woman walking down the street at 9 o’clock at night to go to vote does not need 10 men to surround her to instruct her how to vote. This has to be dealt with.

[The Chair]

Order. Chris Clarkson.

[Chris Clarkson (Heywood and Middleton) (Con)]

Q Thank you, Ms Rees. It is a pleasure to serve under your chairmanship. Councillor Golds, to pick up on what you said about that going on in other parts of the country, I can attest to that. In Rochdale there is a sitting councillor who, three years ago, accepted a caution for electoral fraud after being caught voting twice. He is still sitting there and did not lose the Labour Whip.

As an experienced election agent, do you think the relatively low level of detection of personation is down to the fact that it is so easy to do? I could pick up a copy of the marked register tomorrow, find out whether you vote routinely in elections, turn up to your polling place, claim to be Peter Golds and vote on your behalf. Or do you agree with Mr O’Hara that it is a solution looking for a problem? If you contest that, what would you describe as an acceptable level of electoral fraud?

Councillor Golds: I disagree with Mr O’Hara. When you have the marked register, if you get the proverbial Sid and Doris Bonkers who have never cast a vote in their life, and someone turns up at the polling station and says, “I am Sid Bonkers,” they are given a ballot paper. If Sid Bonkers does not turn up to say he is going to vote, nothing happens. I have to say that there are far too many instances.

I had one incident of a lady who lives in Woodseer Street, E1, who telephoned me to say that she had gone to vote. She knew that the people next door were off on holiday and furthermore that they were Jehovah’s Witnesses and never voted, but democracy had taken place on this particular occasion. When she was marked off on the electoral register, she saw that their names were marked off. She asked the presiding officer why they were marked off, and he said, “Because they voted.” That is an absolutely classic example. Somebody knew that these people were Jehovah’s Witnesses, somebody knew that they never voted, but democracy took place.

[Chris Clarkson]

Q So in your opinion, if I had to turn up with a piece of identification that said, “I am Peter Golds,” and I could not provide it, I should be issued a ballot paper.

Councillor Golds: Yes—[Laughter.] Sorry, I misunderstood what he said; my hearing is not terribly good.

[Chris Clarkson]

If I could not prove that I was you, should I be issued with a ballot paper?

Councillor Golds: No. If you go to collect a parcel without ID, you are not issued with a parcel. For example, if you go to select a Labour candidate, you have to take ID. We had a selection in 2019 of a Labour candidate, and her document to members of the Poplar and Limehouse constituency Labour party says not to forget to bring photo ID. To go to select Apsana Begum, you had to bring photo ID, but to elect her, or not elect her, anybody can be given a ballot paper.

[The Chair]

Thank you. Have the other witnesses anything to add to that, or can I move on?

[Kate Hollern (Blackburn) (Lab)]

Q I have a very quick question for Gillian. For local authorities to issue the free voter ID, what evidence would you need from the person applying?

Gillian Beasley: That is something that we really need to think about: what evidence is required when somebody applies if they do not have a passport or driving licence. Evidence of where they live—bills, bank statements and other such identification—is what we used when we did our proxy pilots.

What we need is some really good guidance about what would be acceptable. As a group of administrators, we would like to have a conversation with Government about what we think would be sufficient before that provision is enacted, so that we are all consistent about what is sufficient. We need to learn from the pilots, because there is obviously some learning from the pilots about what kind of identification is sufficient, and to bring that together so that we have a consistent and safe approach. How do we actually make sure that the documentation is secure and safe enough? There are still some conversations that need to be had and there is some discussion around that at the moment.

[Kate Hollern]

Q So there is quite extensive work to go into the actual detail of producing voter IDs. That brings me on to the additional burden on local authorities. You mentioned how difficult it is to get presiding officers, so there is obviously a huge cost implication in this for local authorities—plus the practical solutions of identifying and delivering voter ID. However, surely it would be quite simple for someone to come and say, “I am X, I live at this address and I need an ID card.” Are you looking at photo ID?

Gillian Beasley: I think that that is the discussion that we need to have as a sector—about what is sufficient. You are absolutely right; my concern would be that somebody would be able easily to produce a false document to say that they lived at a particular address. The conversation that we need to have across the sector, and the guidance that we need, is: what is sufficient ID? That makes the system safe, because we can be sure, or as sure as we can be, that that ID actually locates that person as a real person who we can be confident in giving an ID document to. There is more work and discussion that we need to have around that. Obviously, the Association of Electoral Administrators will have some thoughts on that, and I am sure my team would, as we move forward. That is a discussion that needs to be carefully had.

[Kate Hollern]

Q Thank you. Turning to Peter, like you I was a councillor for 21 years, so I have seen the problems with voting systems over the years, but I am pleased that a number of measures were taken in that long period to address some of your concerns. I was also pleased that in your evidence to the House of Lords you said that there is much more discipline in Tower Hamlets now and that the presiding officer should be the chief executive. In Blackburn, that is exactly what happens.

A number of issues have obviously improved, but you felt the issues that have not improved seem to be the lack of co-operation from the police responding to your concerns and the town hall staff not being equipped or resourced enough to deal with the issues. What do you see in the Bill that will address your concerns about the lack of action and co-operation by the police or the inefficiencies in some town hall services?

Councillor Golds: That is a very interesting point and thank you for highlighting what I said to the House of Lords. I think it was quite intentional that the senior officers of the council in 2014 all declined to act as returning officer. It was devolved to the head of committee services, who was a junior officer, and he was effectively asked to act as a returning officer. In future Bills I believe that the returning officer in elections should be the most senior officer of the local authority, and that should be written into law. They should not be able to cop out, as they are paid.

Where do I look in the Bill? The Bill tidies up the procedures for postal voting. It strengthens this issue of saying that people cannot turn up to a polling station with a Sainsbury’s bag full of postal votes.

[Kate Hollern]

Q Sorry, we do not need a change in legislation for that. I have been involved with many elections, and it is good practice from parties, both Labour and Conservative, to say in their instructions to candidates and campaigners, “You do not touch a postal vote.” If a resident has some difficulty, we phone the town hall and the returning officer sends someone out to help. It seems to me that the problems that Tower Hamlets have experienced, which we accept have got much better, are actually with management within Tower Hamlets. That does not need legislation to find solutions.

Councillor Golds: I am sorry; I have to disagree with you there. Obviously, we are all pleased that Blackburn has tidied up its act, and I am interested and pleased that you refer to cross-party co-operation.

I am sorry to say that I do not think it has improved in other places, and I refer to what Mr Shelbrooke has said. When Paul Bristow fought his by-election, I went there to campaign. I was taken to the central part of Peterborough and I felt so at home. It was exactly what you would expect to see: somebody suddenly arriving with the proverbial Sainsbury’s bag full of postal votes and people standing outside polling stations harassing voters. It should not happen. I believe that everybody should have the right to go to a polling station and vote in freedom.

If we voted in France, election day is a day of reflection. There is no campaigning. You go and vote in secret, behind curtains. Here, we have this wonderful Victorian sense of trust and co-operation between people, because we trust each other in many ways. As you have said, your colleagues in Blackburn work with colleagues of another party to ensure that the parties work well together, but where that trust breaks down, it collapses.

[Kate Hollern]

Q But how will the legislation address the issues raised? Surely that is a police matter.

Councillor Golds: First, we have the tightening of the rules about what you can and cannot say, and where people can be abusive at elections. For example, I have to say that—

[The Chair]

Order. We have to have short questions and answers now as we are running out of time.

Councillor Golds: I am happy to submit information in writing if you would like to see it. Would you like me to do that?

[Kate Hollern]

I just want you to answer the question.

Councillor Golds: Okay.

[Kate Hollern]

Q People are being intimidated outside polling stations—I have experienced it—and the police should deal with that. People are making allegations about candidates—I believe, at some point, there was a leaflet with me in a burqa. How will this legislation improve such harassment?

Councillor Golds: The legislation tightens up the rules of, effectively, what we would call the Miranda Grell situation, whereby people cannot be abusive. The legislation tightens up the rules, as we have seen, about people turning up to a polling station and just asking for a ballot paper and being given one. It tightens up the rules on postal voting.

There are other matters that I would like to address. I believe that there should be an amendment to reaffirm the secrecy of the ballot, because I cannot believe that the police can possibly argue that we do not have a secret ballot in this country, as they appear to be doing. I would think that, of what—

[Kate Hollern]

Q Sorry. Basically, people intimidating someone on the street should be a police matter. I accept that there should be limits on what can be said and done within a poll, but that is already in the rules. On the secret ballot, you gave a case—I think Gillian addressed it as well—where someone was with a woman actually casting a ballot, and you found that the lady was intimidated. Did she allege it was intimidation, or did she just require support because she did not speak or read English?

[The Chair]

Order. We need a very short answer. We have two more Members who would like to come in.

Councillor Golds: The law is clear that you vote in secret.

[Jerome Mayhew (Broadland) (Con)]

Q I will build on the questions that my colleague, Mr Clarkson, posed to Councillor Golds a moment ago, about personation in polling stations and how prevalent it is. In his judgment in the Bordesley Green ward and Aston ward Birmingham fraud trials back in 2005, the election judge, Mr Mawrey QC, stated that,

“there is likely to be no evidence of fraud, if you do not look for it.”

Your teams in the polling booths are the frontline in identifying personation. What tools do you currently have to look for personation fraud?

Gillian Beasley: When we organise our elections, we graduate our polling stations to the ones where we think the most issues will be. We employ presiding officers who have a lot of experience in dealing with the administration of their polling station. However, more than that, we train them around the issues of personation and ensure that they know the statutory questions. There are also ways in which, when someone comes into a polling station and they ask them to give their names, they are very particular about ensuring that we keep with the processes.

We also always have police in those polling stations. There will be two police officers, and there will also be polling agents, so we give a very clear statement that we take personation seriously. When you walk into a polling station in that area, you will see well-trained staff and police officers, and you will likely see a polling agent. There is training that we do. There is also an incident response, so if staff are concerned about an elector, they have a police officer they can talk to. If a polling agent raises an issue, it can be responded to immediately.

The message goes out there that that is what you will find when you go into a Peterborough polling station and those that we consider to be at risk. That is the approach that we take in ensuring that the training and the experience is really good. As Paul Bristow said, we also have CCTV. It conveys how seriously we take electoral fraud in those stations.

[Aaron Bell]

Q I just wanted to briefly ask ACC Cann about polling day, and whether he thinks that the measures around voter ID and undue influence will make polling day easier for the police.

Assistant Chief Constable Cann: I am not sure I heard the question. I think it was whether the measures around undue influence are likely to make life easier for the police.

[Aaron Bell]

And voter ID on polling day.

Assistant Chief Constable Cann: Thank you very much. I think, in general, they are potentially helpful measures indeed. It is always difficult for policy makers to strike the balance between an accessible system and a secure system. If the balance was struck in that particular way in any future Act then, on balance, yes, it would probably be helpful for the police if those measures were brought in.

[The Chair]

Order. That brings us to the end of the time allotted for the Committee to ask questions and, indeed, for this morning’s sitting. I thank our witnesses on behalf of the Committee for their evidence. The Committee will meet again at 2 pm to continue taking oral evidence.

11:25

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Elections Bill (Second sitting)

Wednesday 15th September 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Edward Leigh, †Christina Rees

† Anderson, Fleur (Putney) (Lab)

Bell, Aaron (Newcastle-under-Lyme) (Con)

† Bristow, Paul (Peterborough) (Con)

† Clarkson, Chris (Heywood and Middleton) (Con)

Furniss, Gill (Sheffield, Brightside and Hillsborough) (Lab)

† Gibson, Peter (Darlington) (Con)

† Grady, Patrick (Glasgow North) (SNP)

† Hollern, Kate (Blackburn) (Lab)

† Hunt, Jane (Loughborough) (Con)

† Mayhew, Jerome (Broadland) (Con)

† O’Hara, Brendan (Argyll and Bute) (SNP)

† Randall, Tom (Gedling) (Con)

† Rutley, David (Lord Commissioner of Her Majesty's Treasury)

† Shelbrooke, Alec (Elmet and Rothwell) (Con)

† Smith, Cat (Lancaster and Fleetwood) (Lab)

† Smith, Chloe (Minister for the Constitution and Devolution)

† Smith, Nick (Blaenau Gwent) (Lab)

Adam Mellows-Facer, Chris Stanton, Committee Clerks

† attended the Committee

Witnesses

Professor David Howarth, Professor of Law and Public Policy, University of Cambridge, and former Electoral Commissioner

Fraser Campbell, Blackstone Chambers

Virginia McVea, Chief Electoral Officer, the Electoral Office of Northern Ireland

Ailsa Irvine, Director of Electoral Administration and Guidance, The Electoral Commission

Peter Stanyon, Chief Executive, Association of Electoral Administrators

Louise Round, spokesperson for Elections and Democratic Renewal, SOLACE

Rob Connolly, Returning Officer, Birmingham City Council

Dr Kate Dommett, Department of Politics and International Relations, University of Sheffield

Professor Justin Fisher, Director of Public Policy, Brunel University London

Darren Grimes, political commentator

Public Bill Committee

Wednesday 15 September 2021

(Afternoon)

[Christina Rees in the Chair]

Elections Bill

Examination of Witnesses

Professor David Howarth and Fraser Campbell gave evidence.

[The Chair]

[The Chair]

[The Minister for the Constitution and Devolution (Chloe Smith)]

[Chloe Smith]

[The Chair]

[Chloe Smith]

[The Chair]

[The Chair]

[Chloe Smith]

[Cat Smith (Lancaster and Fleetwood) (Lab)]

[Fleur Anderson (Putney) (Lab)]

[The Chair]

[Chloe Smith]

[Jerome Mayhew (Broadland) (Con)]

[Jerome Mayhew]

[Jerome Mayhew]

[The Chair]

[Patrick Grady (Glasgow North) (SNP)]

[The Chair]

[The Chair]

[Cat Smith]

[Cat Smith]

[The Chair]

[Cat Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Peter Gibson (Darlington) (Con)]

[Peter Gibson]

[Peter Gibson]

[Peter Gibson]

[Peter Gibson]

[Peter Gibson]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[The Chair]

[Paul Bristow (Peterborough) (Con)]

[Paul Bristow]

[The Chair]

[Chris Clarkson (Heywood and Middleton) (Con)]

[The Chair]

[Nick Smith (Blaenau Gwent) (Lab)]

[The Chair]

[Fleur Anderson]

[Fleur Anderson]

[Fleur Anderson]

[Patrick Grady]

[Patrick Grady]

[The Chair]

[The Chair]

[The Chair]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[The Chair]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Brendan O’Hara]

[Brendan O’Hara]

[Brendan O’Hara]

[The Chair]

[Cat Smith]

[Cat Smith]

[Cat Smith]

[Cat Smith]

[Chris Clarkson]

[Chris Clarkson]

[Chris Clarkson]

[Chris Clarkson]

[Fleur Anderson]

[Nick Smith]

[Peter Gibson]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[Jerome Mayhew]

[The Chair]

[Paul Bristow]

[Paul Bristow]

[Paul Bristow]

[Paul Bristow]

[Paul Bristow]

[The Chair]

[The Chair]

[The Chair]

[Cat Smith]

[Cat Smith]

[Cat Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[Chloe Smith]

[The Chair]

Adjourned till Thursday 16 September at half-past Eleven o’clock.

Written evidence reported to the House

EB01 Dr Katherine Dommett

EB02 Professor Justin Fisher

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

Wednesday 15th September 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Sir Christopher Chope, Judith Cummins

† Bacon, Gareth (Orpington) (Con)

† Britcliffe, Sara (Hyndburn) (Con)

† Bruce, Fiona (Congleton) (Con)

† Buchan, Felicity (Kensington) (Con)

† Donelan, Michelle (Minister for Universities)

† Glindon, Mary (North Tyneside) (Lab)

† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Holden, Mr Richard (North West Durham) (Con)

† Jones, Mr Kevan (North Durham) (Lab)

† McDonnell, John (Hayes and Harlington) (Lab)

† Nichols, Charlotte (Warrington North) (Lab)

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

† Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)

† Webb, Suzanne (Stourbridge) (Con)

† Western, Matt (Warwick and Leamington) (Lab)

Kevin Maddison, Seb Newman, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 15 September 2021

(Morning)

[Sir Christopher Chope in the Chair]

Higher Education (Freedom of Speech) Bill

09:30

[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.

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.

09:44

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

I rise to make a general point and a specific point. The general point is that you, Sir Christopher, have been around for longer than me and you know how these Committees work: we can either work together to improve the legislation or we can all turn up and allow individuals to speak while the rest do their correspondence. I hope that this Committee will be one that works together to improve the legislation.

I do not support the legislation in principle. It is unnecessary, over the top and a hammer to crack a nut, but the Government have a right to introduce their legislation. They have a big majority and therefore the legislation will go through in some form. The responsibility therefore falls upon us all to try to ensure that it does so in a form that is implementable and does not cause problems in the future. We have to take that attitude on the Bill, and work together to improve it. This first stage is part of that test.

We listened to a large number of witnesses, chosen cross-party by both sides. The Government brought their witnesses forward and the Opposition were able to insert some of the views of others as well. It was interesting, and at times entertaining, and it threw a fair amount of light on the overall process that the Bill would eventually implement as a result of the Government’s wishes to legislate in this field. One of the issues that came up, which my hon. Friends referred to, is the need to broaden the definition. What I heard from the witnesses was almost a consensus on that. Whatever political position they were coming from, they expressed the need to strengthen this aspect of the Bill.

We may well come back to that on Report, depending on the Speaker’s selection of amendments, but we could deal with it at this stage, and we might be able to build consensus on the Committee about designing a Bill that will deliver on the intention that we all have, I think, to ensure freedom of speech and guarantee academic freedom. That came from all the witnesses and all the contributions in our sessions so far, interrogating those witnesses. I hope that there will be a constructive response to a number of the amendments, rather than the traditional response that whatever the Opposition table has to be opposed, while everyone else sits on their hands and busies themselves with other matters.

[Michelle Donelan]

The amendments relate to the new aspect of the free speech duty that will require higher education providers to pay particular regard to the importance of lawful freedom of speech when considering what “reasonably practicable” steps they can take to secure it.

Amendment 43 would add a reference to academic freedom. The Bill refers to that in a provision on freedom of speech, which is a broad concept protected under article 10 of the European convention on human rights. Academic freedom is considered to be a subset of freedom of speech—a distinct element with particular considerations within the broader concept. As a result, there is no need for this provision to specify academic freedom separately, as it is already covered.

[John McDonnell]

What harm would it do to insert it into the legislation, on the basis of the witnesses that we heard?

[Michelle Donelan]

I thank the right hon. Member for his question. There is no point in duplicating in the Bill, because academic freedom is a subset of freedom of speech. That is clearly accepted.

[Emma Hardy]

Will the Minister give way?

[Michelle Donelan]

I will continue a little bit. Amendment 51 proposes primacy instead of importance. The Government are clear that freedom of speech is a fundamental right. Indeed, the new requirement to have “particular regard” is intended to shift the dial in the balancing act that providers have to undertake in order to give more weight in favour of freedom of speech than currently. However, this does not mean that freedom of speech must always outweigh other considerations; rather, it indicates that it is a very important factor. This is the right approach. The Bill does not place on providers a requirement to prioritise freedom of speech over other rights, such as freedom of religion. The requirement to have particular regard to the importance of freedom of speech may, in a particular case, prompt a provider to prioritise freedom of speech over another right, but this would always be subject to the provider’s assessment of what is reasonably practical, and would need to be lawful. The Bill does not create an obligation on the provider to reach a particular outcome. It is vital to remember that, in context, the right to freedom of speech is not, and should never be, absolute.

[Emma Hardy]

I apologise for returning to the previous point, but is the Minister aware how remarkable it is to have a group of different academics agreeing on one issue? It is truly remarkable; we achieved the almost impossible by getting them united on the issue of academic freedom. Therefore, it does seem rather preposterous that we have a Bill claiming to be about freedom of speech that does not include the two words “academic freedom”. I wonder, with the greatest of respect, what the point was of having all those witnesses give evidence if everything they said is disregarded, and the Government intend to stick with what they already published before those sessions.

[Michelle Donelan]

I refute the point that everything in the evidence was disregarded. The Government reserve the right to stick by their opinion, which is that this Bill will protect academic freedom and freedom of speech. Academic freedom is a subset of freedom of speech.

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

Will the Minister give way?

[Michelle Donelan]

If I could continue, the Government recognise that a provider will be best placed to consider, on a case-by-case basis, how to fulfil its duties under the Bill while also meeting its other duties, including those under the Equality Act 2010 and the Prevent duty. The provision in the Bill requires reasonably practical steps alongside the particular regard duty, which allows for the balancing exercise to be properly done.

Once the Bill has completed its passage through both Houses, I expect that the new director for freedom of speech and academic freedom will issue comprehensive guidance to the sector on the expectations of the Office for Students. I am confident that providers will be well equipped to strike an appropriate balance when exercising their various duties. I trust that the Committee members are reassured that this amendment is not necessary.

[John McDonnell]

Actually, I think there might be a bit of movement here. Can the Minister assure us that the Government will indicate to the director for freedom of speech and academic freedom that there should be a specific reference in the guidance to academic freedom?

[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.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I am sympathetic to the hon. Gentleman’s view, and I entirely endorse the view articulated by the right hon. Member for Hayes and Harlington about how legislation is improved through scrutiny, and how these Committees can work at their best. When I was on the Front Bench doing the Minister’s job, I always adopted that approach with shadow Ministers and others. [Interruption.] I shall ignore the sedentary comment, although I will give way if it was not a sedentary comment.

[John McDonnell]

I simply said that the right hon. Gentleman always spoke with literary skill as well.

[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.

Division 2

Ayes: 7

Noes: 10

10:00

Amendment proposed: 43, in clause 1, page 1, line 10, after “speech” insert “and academic freedom”.—(Matt Western.)

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

Question put, That the amendment be made.

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.

10:15

If this amendment is not adopted, there is a real risk that free speech requirements would not apply to those spaces. It is as simple as that. We must ensure that this Bill is as good as it can be. We do not believe it is necessary, but if it is to go through it has to be as good as it possibly can be, and it is essential to include these sorts of details. This is a sensible proposal, and it is needed in practice.

[Emma Hardy]

I shall be extremely brief, Sir Christopher. Yesterday, in a meeting with the Jewish Leadership Council, I was reminiscing about my time as shadow Universities Minister, when I met the Union of Jewish Students. One of the points that it wanted to reinforce was the difficulty it had holding events because of the extortionate costs that can result from security, given some of the speakers it wished to invite on to campus. I therefore hope that the Minister takes this amendment seriously, because it seems to be a very simple way of allowing people to invite speakers who could be deemed controversial and require extortionate security costs, and to continue their events in the online sphere.

[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.

[John McDonnell]

I would not want the right hon. Gentleman to go too far, because I still think that it is a rubbish Bill. I want to address the issue of occupied premises; the online point has been made well by Members across the Committee.

The issue of the occupation of premises is important in a number of areas where the university is not sited in the constituency but uses, often temporarily, premises around the area. Without the amendment, the Bill will have a potential loophole that could be exploited. My hon. Friend the Member for Warwick and Leamington made a valid point about that.

On the online issue, if we do not build it in early, we will really miss a trick. The scale of online abuse that most of us receive is enormous—perhaps I receive more than others; I do not know—and if we do not venture into that territory and secure it, we will not be seen to be actually operating in the real world as it now is. Most of the universities that I have been dealing with recently are only now going back to any form of physical participation; virtually everything up until now has been online. They have also encouraged students to maintain some form of student life as well, such that where physical meetings cannot take place, student societies go online, using Zoom, Teams and so on. The Bill could make explicit reference to that. Failing that, I would welcome the Minister’s views on any alternative solution, but we need to be convinced that the issue is being addressed.

[Michelle Donelan]

Amendment 52 seeks to make clear that the duty of higher education providers to take reasonably practicable steps to secure freedom of speech applies in relation to the use of online platforms as well as physical premises. As drafted, section A1(3) requires that providers must take reasonably practicable steps to secure freedom of speech, including by securing that the use of premises is not denied because of the ideas, beliefs and views of an individual or body, and that the terms of the use are not based on such grounds.

Importantly, the provision uses the word “includes”. In other words, the duty in section A1(1) is not limited to what happens on the physical premises. Therefore, the requirement for a provider to take reasonably practicable steps may apply to online events hosted by the provider every bit as much as to physical events held by the provider.

Of course, it is important to be clear that the lawful speech of students, staff, members and visiting speakers in online spaces is covered by the Bill. The Government believe that the Bill as drafted achieves that aim, and I absolutely expect that the new director for freedom of speech and academic freedom will set that out clearly in the guidance in due course. I hope that I have reassured the Committee. However, I also commit to the Committee to keep this under further consideration.

[Mr Kevan Jones (North Durham) (Lab)]

I am concerned that a lot is going to be left to guidance. I want to explore the Minister’s role in ensuring that the commitment that she has given today will actually get into that guidance. If the operation of the Bill is going to be reliant on the guidance, that guidance is going to be very important.

[Michelle Donelan]

I have committed to the Committee today to consider this further as the Bill progresses through the House.

[Mr Jones]

Over the past few years it has increasingly been the case that the bite is found in guidance rather than on the face of the Bill. I am trying to understand what the Minister or the Department’s input will be in terms of framing that guidance, because that is going to be very important in determining whether the Bill works.

[Michelle Donelan]

The right hon. Gentleman can be assured that I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation. It would be impossible for the Bill to detail all of the things that the guidance needs to address.

I now want to turn to amendment 31.

[John McDonnell]

Will the Minister give way?

[Michelle Donelan]

I really do want to get to amendment 31, but I will let the right hon. Gentleman in.

[John McDonnell]

I am grateful to the hon. Lady. I just want to get this clear, because I might have missed this: the guidance itself will be prepared by the director. That guidance will not be subject to parliamentary approval or amendment in any form, and therefore the opportunity for Members of the House to influence that guidance does not exist. That is my worry, and that is why having things on the face of the Bill shapes the guidance in due course. The hon. Lady has said that she will give this further consideration, but could I suggest that she offers the Opposition lead, my hon. Friend the Member for Warwick and Leamington, the opportunity to meet her and go through the potential for an amendment on this topic on Report?

[Michelle Donelan]

I am always only too happy to meet the hon. Member for Stretford and Urmston, and to discuss this Bill in particular, so I can commit to that.

Amendment 31 seeks to expand the duty on higher education providers to secure freedom of speech by not denying the use of its premises to an individual or group because of their ideas, beliefs or views. It seeks to do so by explicitly including premises that a provider occupies. The Bill strengthens and expands the existing freedom of speech duty on providers contained in section 43 of the Education (No. 2) Act 1986. The wording of this Bill—

“any premises of the provider”—

is effectively carried over from section 43 of that Act. The Bill requires providers to take “reasonably practicable” steps to secure lawful freedom of speech for its members, staff, students and visiting speakers.

In this context, proposed new section A1(3) to the Higher Education and Research Act 2017 deals with university procedures, namely room booking systems. It requires that the use of providers’ premises is not denied because of someone’s ideas, beliefs or views, and that the terms of use are not based on such grounds. If the provider is responsible for such decisions in relation to the premises, this provision will apply. That is likely to be the case when the provider owns the premises or is in a long-term leasehold, for example; “the premises of the provider” will apply in both cases, noting that the Bill does not say “premises owned by the provider”.

However, where a provider hires rooms on a short-term basis, it is unlikely to be within its control to decide who can access rooms owned by an external party and how those rooms are used. Accordingly, such premises would not be the premises of the provider under the Bill. Of course, as I have said, the provider must still take reasonably practicable steps to ensure that there is lawful freedom of speech, but that would not apply to booking decisions about external parties’ rooms.

[Lloyd Russell-Moyle]

I understand exactly what the Minister is saying, and the difficulty of requiring a university to secure premises that it might not directly run. The difficulty is that more and more higher education provision is done at a distance from the main location of the university, so while the university might make reasonable adjustments to provide that speaker or activity in its central location, that has the effect of denying a voice to speakers in a location that might be hundreds of miles away, and to students and staff who may never be able to access it. Making sure that there is a reasonable duty regarding premises that are “occupied by” a university does not specify a particular room, but does give an inference that the wider premises and the area occupied must be provided for. I understand that the wording of the amendment might not be the Minister’s preferred wording, but is this something she would come back to in order to ensure that there is a location-based understanding of this, as well as an ownership and long-term lease-based understanding of it, so that students who might be studying 100 or so miles away from the central premises of the university have in their locality the ability to hear and host external speakers, for example, or have lecturers who are able to have academic freedom?

[The Chair]

That was a very long intervention, which I allowed in order to facilitate debate, but I do not want that to be a precedent for the future.

[Michelle Donelan]

Thank you, Sir Christopher. While I recognise the hon. Gentleman’s points, this Bill does cover accommodation that is in different locations. Multiple universities and higher education providers will have satellite campuses: this amendment is about who owns the premises, and the kind of lease it is. We cannot get into a predicament where universities are tied in bureaucracy and are being asked to be responsible for the freedom of speech of other organisations that hold leases on buildings.

10:30

Amendment 53 seeks to deal with cases where security costs required for an event may result in the event’s not being able to go ahead. It would require the amount of cost not to be taken into account when a provider is deciding on the use of its premises or the terms of its use, unless the costs are greatly disproportionate, in which case online provision should be made available. I agree it would be concerning if events could not go ahead because of security costs and I am aware of several examples reported in the media of that happening. I too have met some groups that have been impacted.

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.

Division 4

Ayes: 7

Noes: 9

[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.

[Sir John Hayes]

I beg to move amendment 71, 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 the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting.”.

The amendment draws attention to the concern that was expressed during our evidence sessions about the possible relationship between this legislation and existing statutes, notably the Equality Act.

The point was raised by witnesses and I am particularly mindful of what Professor Biggar said when he spoke to us. He said that,

“the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 30, Q59.]

We heard something on that in the evidence from the National Union of Students. When I challenged the witness on whether she believed in the right to disturb or to shock and offend, she claimed she believed in free speech, but went on to defend the idea of no platform. She talked about vulnerable people. It is hard to know who these vulnerable people are. We cannot be talking about shy or reticent people—after all, the meek are so blessed they are going to inherit the Earth, so it cannot have been them—but there is a concern that the broadening of the definition of vulnerability and harassment could inhibit the intentions of the legislation.

Of course it is true that we all abhor offensive, discourteous and other unsavoury or unpalatable kinds of speech, but in a free society it must be permitted if it is lawful. It is necessary sometimes, as several witnesses told us, to challenge orthodox thinking. If orthodox thinking becomes so narrow that it prohibits those who question the status quo and the zeitgeist, nothing would ever alter. Most innovators through time, from Socrates onwards, have done just that. It made him very unpopular with Athenians—in the end, so unpopular that it brought about his demise. Indeed, I was reading Socrates this morning, on just that point—on Meno’s paradox. Let us not go into that, Sir Christopher; you will no doubt not let me depart from the subject in hand to that degree.

The amendment is straightforward. It tries to address the challenge identified by Professor Biggar and others to reconcile the legislation with the other requirements that will affect universities in its interpretation. Indeed, other witnesses from the sector draw attention to this more critically than Professor Biggar, who is, broadly speaking, in favour of the legislation. They suggest that it is a problem with the legislation per se, and they feel that it cannot be reconciled with the need to balance their legal responsibilities. I do not share their view, because I think it can be reconciled. The Government can help with that by clarifying the different responsibilities on the face of the Bill, which is what the amendment is designed to do.

The spirit in which the Committee operates will, I hope, be one of helpfulness, collaboration and scrutiny, so that we can improve the legislation. I can tell from what the Minister has said that she shares that spirit, because she has already said that she will go and think about things afresh during the passage of the Bill. Moreover, the work that she does with the new regulatory regime will reflect such further consideration, given the comments from members of the Committee, and no doubt in the other place and on Report. I am most grateful to the Minister for adopting that tone, and I hope she will do just that when she deals with my amendment.

[Emma Hardy]

Before I start, I want to say that I genuinely hold the right hon. Member for South Holland and The Deepings in high regard, especially since we discovered a shared love of skills and FE. However, I think the amendment is gravely mistaken. It is perhaps worth reminding ourselves of the explanatory notes on what constitutes harassment under the Equality Act 2010, so that we know what we are talking about:

“The first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.”

I am not aware of any debate, discussion or event in a university that we could rightly say creates

“an intimidating, hostile, degrading, humiliating or offensive environment for the complainant”

or violates

“the complainant’s dignity”.

The second type is sexual harassment, which is

“unwanted conduct of a sexual nature”.

That is surely not something that we would want in a university. The third type is

“treating someone less favourably because he or she has either submitted to or rejected sexual harassment”,

which could indeed become the lecherous lecturers clause. The explanatory notes for the Equality Act 2010 give three examples of harassment:

“A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.

An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male.

A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion.”

That is what we mean when we are talking about harassment under the Act, so we need to think about whether we should amend it for universities. Do we really want to encourage this kind of behaviour? It is important to state that universities are not separate from our community or our country. Something that is permitted when people are inside a university cannot become something that is suddenly not permitted when they step outside the university grounds. In fact, the best types of universities are those that I call civic universities—universities that do not just exist in their communities, but are part of them. Therefore, why do we need a separate law? It would mean that people could be offensive within the university grounds but would suddenly have to remember to be polite to their same colleagues when they step outside. We need to think incredibly seriously when we are discussing using the Bill to amend something as important as the Equality Act 2010.

10:45

[Sir John Hayes]

I am grateful to the hon. Lady for her introductory remarks about our mutual regard. The amendment does not do what she is saying. Clearly, universities have a responsibility under the Equality Act 2010 to counter, prevent and act on the kind of harassment that she describes, but Professor Biggar says that the risk with the Bill as it stands is in exaggerating harassment to include, as my amendment describes it,

“discussion of an academic or scientific matter”.

I entirely agree with the essence of what the hon. Lady said, but my worry is that the tension between the duties she has described and this legislation will be hard to reconcile for universities unless we are clearer in the Bill about that distinction.

[Emma Hardy]

I thank the right hon. Gentleman. I will not continue to give my opinion; instead, I sought legal advice on the amendment. The quote that I shall read is from the highly regarded human rights barrister and expert, Adam Wagner, who gave me permission to read out his statement in full:

“This is a bizarre and retrogressive amendment. All speech is already protected by ‘freedom of speech’, i.e. Article 10 of the European Convention on Human Rights, but that right is qualified and will always be balanced against the rights of others, the prohibition on discrimination and generally the interests of the public. The implication of this amendment would be that, for example, hostile and degrading antisemitic speech targeted at a Jewish individual—i.e. hate speech—during an ‘academic discussion’ would no longer be unlawful. A neo-Nazi could repeatedly refer to a Jewish speaker as ‘Jewish scum’ during an academic discussion and this could—on the face of it—be lawful, as would referring to a black speaker as ‘subhuman’ and so on. Hate speech has never been protected by free speech rights and I would not be surprised if this amendment, if it became law, was not ruled to be in breach of the UK’s human rights obligations by a court here and/or in the European Court of Human Rights.”

I completely respect what the right hon. Gentleman is trying to do with the amendment. Indeed, we need a full and frank discussion later on how we balance the different aspects of the Equality Act 2010 with the Bill and still allow free speech. With the greatest respect, however, the amendment should not be accepted.

[Charlotte Nichols (Warrington North) (Lab)]

I want to follow up on my hon. Friend’s comments about what the Bill means in relation to the Equality Act 2010. As someone who is Jewish, one of my key areas of concern is what it would mean for Jewish students—an issue I have raised a number of times throughout the passage of the Bill. I have raised concerns about what it would mean for Holocaust denial, after the Minister appeared to suggest on the radio that that would be protected speech under the Bill. In fact, we heard from witnesses such as Professor Goodwin that he would invite a speaker from the National Front or the British National party, if they were available, to address his students. We have heard evidence that that is what some academics would seek to do, if the Bill were in place.

We need only look at the British National party. Nick Griffin, along with a number of members of the British National party and the National Front, has been repeatedly prosecuted for hate crimes, incitement to racial hatred and Holocaust denial. Inviting someone with those sorts of views to address students on campus—for example, in a politics lecture—might mean someone like Nick Griffin laying out all the reasons why he believes that anyone who is not white British should be repatriated to a different country, why he believes that the Holocaust did not happen, and so forth. Clearly, if he made those remarks outside a university setting, in a discussion that was not about an academic or scientific matter in a higher education setting, he could be prosecuted for that, as he has been repeatedly.

The amendment would allow a loophole for Nazis, fascists and people who hold absolutely objectionable views. As we have heard, those people have, in the public interest, always had their right to absolute freedom of speech, qualified by that public interest, libel laws, the Equality Act 2010 and so on. The unintended consequence would be to drive a wedge in the Equality Act. Our university campuses would become less safe spaces than the street outside them, where those rules would still be in place.

Like my hon. Friend the Member for Kingston upon Hull West and Hessle, I have nothing but respect for the right hon. Member for South Holland and The Deepings, but if his amendment formed part of the Bill, it could have really adverse consequences.

[Lloyd Russell-Moyle]

I became quite fond of the right hon. Member for South Holland and The Deepings during the evidence sessions, and during our discussions about the necessity for broader academic reform in our universities and about how tenure works. There is a lot of agreement on that. However, for three reasons, I am worried that the amendment creates an outcome that he is not actually seeking. First, Professor Stock described how her academic freedom and free speech was not limited just by—I would argue not at all by—the university and the institution, but by the harassment from colleagues, students and the academic community more broadly. They called her names such as TERF, which she found objectionable, and said that she was not academically rigorous. In effect, she described what we would call harassment, because she was exerting her right under sex protections to talk about sex, and they were harassing her for that. I disagree with her views on the sex agenda, but it is her right to express them without fear of harassment.

This amendment would be a harasser’s charter—a charter to harass her outside the university, making snide remarks online or in academic forums, degrading her and ridiculing her. We heard in the last evidence session—it feels like yesterday—how many academics feel mocked and ridiculed by their colleagues because of their activities, and that sometimes leads to harassment, because they have protected characteristics. This would be a charter for those academics to be harassed out of their practice. That would be very worrying. I do not think that is what the right hon. Gentleman wants, but I am worried that is what the amendment would do.

We also heard from Trevor Phillips, with whom I disagree on a number of matters, who said that the importance of the Bill is not about directing details but empowering a regulator to provide guidance about where these things need deliberation. Bizarrely, whereas the Minister has previously said, “This needs to be dealt with by the Office for Students”, and I have disagreed, on this issue I would take the line that the Minister has taken: this is an area where we need decent guidance from the Office for Students to ensure that universities are balancing that duty.

The right hon. Gentleman is right that sometimes universities incorrectly interpret the balance of where they should be on harassment and academic rigour. The clunky nature of this amendment might not fix that, but decent guidelines will change the way universities work, so I hope the Minister will say that she will push for them.

[Sir John Hayes]

The hon. Gentleman is taking us towards some sort of Hegelian synthesis of my intention, which is to ensure that, as Professor Biggar said, universities do not over-interpret their duties and define harassment so broadly that it closes down debate, while ensuring, on the other hand, that universities do the right thing, in the terms that the hon. Member for Kingston upon Hull West and Hessle was describing, in protecting people from the kind of activities that the hon. Gentleman spoke of. Maybe, as he says, that is best achieved in guidance, because he acknowledges that there is a tension, or a risk of it, as I tried to point out,.

[Lloyd Russell-Moyle]

The whole Bill is full of tensions, which is why many of us would say this is not best put in legislation; instead, it could be done through other mechanisms, such as guidance and support for universities, given that we already have the Office for Students. That is the Opposition’s whole argument on whether we need a Bill. However, we have a Bill, so we need to create a framework to ensure that those tensions are dealt with sensitively.

[John McDonnell]

May I add to my hon. Friend’s note of caution? In 2010, when the equalities legislation was introduced by the then Conservative Government, there was extensive debate. He will remember the debates around what constituted an appropriate joke, and whether that was encompassed in legislation. We now have 11 years of experience of that legislation, and precedent has built up, after court actions. I am fearful to tread into an area where I think we have a settled opinion at the moment. This amendment could be counterproductive, because it would reopen that whole debate, which I thought we had comfortably settled.

[Lloyd Russell-Moyle]

I totally agree. Again, that is the importance of the guidance. The Office for Students can sit down with other regulators and work out a settled opinion, which might be that there is not enough guidance for universities to interpret things correctly.

The right hon. Gentleman has mentioned a number of times the no-platform policy of the National Union of Students. That is a policy that bans National Action, a proscribed, illegal organisation in this country. It is a policy that bans Hizb ut-Tahrir, an organisation that is prevented from entering campuses under Prevent. It bans only a small handful of organisations—literally fewer than 10.

[Emma Hardy]

Six.

[Lloyd Russell-Moyle]

Six—I thank my hon. Friend. Those bans usually have national governmental guidelines behind them, because the organisations are proscribed under Prevent or under other duties. We need to be careful when we lambast the no-platform policy of the NUS, because it is a policy that furthers Government policy and guidelines for keeping our campuses safe. Sometimes the phrase no-platforming is used, but it is actually a policy that is implementing Government guidelines.

[Sir John Hayes]

Of course the hon. Gentleman is right that, where organisations are proscribed or by law prohibited from operating or existing, they should not come. Furthermore, it may be that other organisations are not welcomed into particular forums, but he will know that, over the years, no-platform policies have been used in all kinds of different institutions to prohibit a much wider range of outside speakers, including in some cases speakers from the Conservative party and other perfectly legitimate and indeed noble political organisations of that kind.

[Lloyd Russell-Moyle]

In a previous sitting, the Chair mentioned facing this issue when he was a student. That is exactly why the NUS has laid down a national policy that refers to six named organisations—so that individual student union branches or universities cannot erroneously put forward others. The right hon. Gentleman’s exact concerns have been implemented by the NUS, which has listed the organisations—only six, and all backed up by national guidelines. An individual student union cannot just say, “We do not like that Conservative,” or “We do not like that academic.” I agree with him that there is concern that that has been misapplied in the past. That is why we now have national guidelines. Again, that is an example of where these things are best settled under guidelines, through negotiations with the national unions and through the regulator, and not put in legislation, which might lead to unforeseen circumstances.

11:00

[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.

[Sir John Hayes]

The Minister may persuade me to withdraw the amendment, in the spirit that has pervaded the Committee so far, if she addresses the issue raised by Professor Biggar and other academics, who said that at the moment, universities may be over-interpreting their responsibilities in respect of the Equality Act. Professor Biggar made clear that they are interpreting it in a way that the courts would not. All I ask is that universities stick to the law and what the courts would do on harassment, rather than over-interpreting in the way that Professor Biggar suggested. If she included that in her remarks and in the subsequent guidance, I would be happy to withdraw my amendment, but I will wait to hear what she says.

[Michelle Donelan]

I wholeheartedly agree with my right hon. Friend that neither universities nor anybody else should be over-interpreting the Equality Act. That will be made clear in the guidance that the Office for Students will bring forward, and I fully expect that to help clarify the situation and ensure that freedom of speech is prevalent on our campuses. With that in mind, the Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom, but absolutely does not, and should not, provide a vehicle for people to harass one another.

[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.

[Michelle Donelan]

Amendment 29 seeks to expand the notion of who is a member of a higher education provider to include affiliated academics and other individuals holding academic positions. Amendments 55 and 56 seek to extend academic freedom to members and visiting academic speakers.

Clause 1 will insert part A1 into the Higher Education and Research Act 2017. Part A1 (1) and (2) require registered higher education providers to take “reasonably practicable” steps to secure lawful freedom of speech for their

“staff…members…students…and…visiting speakers.”

Turning to amendment 29, we have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, because not all of those who work at a provider have an employment contract or employee status. To be clear, expanding the protections to these individuals is a key aspect of the Bill and ensures that all academic staff have access to redress. It is important to note that the term “staff” is already used in the current definition of academic freedom in the Higher Education and Research Act, so it is an understood term in this context. Similarly, “members” is a commonly used term in the sector, as well as in legislation. It is included in the existing provision in the Education (No. 2) Act, which is carried over into the Bill to ensure that individuals who are currently covered do not lose that protection. Members of a university include members of the governing council, for example.

I now turn to the proposed extension of academic freedom to members and visiting academic speakers in amendments 55 and 56. As already defined in the Higher Education and Research Act and strengthened in clause 1, academic freedom is necessary for academic staff who may be at risk of losing privileges and jobs or with reduced likelihood of securing a new academic role because of their views. Visiting academic speakers will therefore have academic freedom in relation to their own universities. A visiting speaker who speaks controversially at another university will have the benefit of the provision at their own university, but they do not need it at the university they are visiting, as they do not have a job or promotion prospects at that university that they are at risk of losing.

[Lloyd Russell-Moyle]

Very often, an academic seeking promotion has to demonstrate that they have published work and have spoken at an event external to the institution that they work in. If they are unable to prove that they have spoken at a number of events, they are unable to secure promotion. Therefore, the protection that the Minister talks about is a protection in the institution, but if academics are not protected in external institutions they will not even be able to apply for promotion. Does she understand that there does need to be an extension, and would she consider how that could be done?

[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.)

11:17

Adjourned till this day at Two o’clock.

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

Wednesday 15th September 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Christopher Chope, † Judith Cummins

† Bacon, Gareth (Orpington) (Con)

† Britcliffe, Sara (Hyndburn) (Con)

† Bruce, Fiona (Congleton) (Con)

† Buchan, Felicity (Kensington) (Con)

† Donelan, Michelle (Minister for Universities)

† Glindon, Mary (North Tyneside) (Lab)

† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Holden, Mr Richard (North West Durham) (Con)

† Jones, Mr Kevan (North Durham) (Lab)

† McDonnell, John (Hayes and Harlington) (Lab)

Nichols, Charlotte (Warrington North) (Lab)

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

† Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)

Webb, Suzanne (Stourbridge) (Con)

† Western, Matt (Warwick and Leamington) (Lab)

Kevin Maddison, Seb Newman, Committee Clerks

† attended the Committee

Public Bill Committee

Wednesday 15 September 2021

(Afternoon)

[Judith Cummins in the Chair]

Higher Education (Freedom of Speech) Bill

Clause 1

Duties of registered higher education providers

14:00

[Fiona Bruce (Congleton) (Con)]

I beg to move amendment 59, in clause 1, page 2, line 9, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 61, in clause 1, page 3, line 26, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 62, in clause 4, page 5, line 31, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 63, in clause 4, page 6, line 1, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 64, in the schedule, page 13, line 8, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 65, in the schedule, page 14, line 9, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 66, in the schedule, page 14, line 36, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 67, in the schedule, page 15, line 16, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

[Fiona Bruce]

I rise to speak to amendment 59. Freedom of speech and academic freedom are the lifeblood of higher education. Without the protection of these freedoms, and recognition of their value to society, universities risk losing the ability to be centres of intellectual debate, where prevailing norms can be challenged and where academics and students are able to pursue unconventional lines of inquiry. This is an issue of critical importance. Universities function as critical influencers across society. The students of today will be the leaders of tomorrow, who will shape—and hopefully improve—society as a whole.

The Government have rightly sought to ensure that the meaning of academic freedom is clarified in the Bill to include the ability of academic staff members to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of being adversely affected, either as a result of losing their jobs or privileges or reducing the likelihood of future promotions or other employment opportunities.

However, we heard in evidence from several witnesses that academic freedom is a right that needs to exist to protect not only academic staff but students, who are often more vulnerable to pressure and self-censorship. They may worry, for example, that they will be marked down and that their expression of unpopular or unfashionable views will have an adverse impact on their educational progress.

I will give a few examples. In his evidence, Professor Biggar mentioned a junior research fellow who would attend one of his events only on the condition that he was not photographed or named. He feared there would be repercussions for his present academic pursuits and future career if he associated in any way with Professor Biggar. That was a junior research fellow. How much more a student, who may feel a greater pressure to acquiesce to the prevailing culture and refrain from rigorous academic pursuit to ingratiate himself with his academic supervisor?

Another, deeply concerning case in the press last year involved Julia Rynkiewicz, a 25-year-old Catholic midwifery student, who was suspended from entering her programme’s hospital placement phase after her university learned of her leadership of a pro-life student group. She was subjected to a four-month fitness to practise investigation in 2019. Ultimately, she was completely vindicated of any wrongdoing and received an apology from her university, but she had already lost one year of her academic studies, and was, understandably, deeply distressed.

In their evidence, Professors Goodwin and Kaufmann were clear that the protection of academic freedom should apply not just to established academics, but to doctoral students. Indeed, their evidence was that students are the most likely to self-censor. Students do not want to irritate their colleagues or suffer reputational or educational consequences that will harm their career prospects. Professor Goodwin told the Committee:

“we know clearly from the King’s study…that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q186.]

My concern is that the very welcome clarity in the Bill concerning the protection of academic freedom for staff will function as a double-edged interpretive sword by excluding academic freedom for anyone who is not a staff member. Without the express inclusion of students, there is a risk.

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

The hon. Lady is making an important point for research students. I am just not quite sure how these points relate to all taught students. Being a taught student sometimes requires instruction in order to learn the basics. Although we like to think higher education institutions are purely about thinking and knowledge generation, the reality is that the first year and the foundation years run out of universities are instructional and directive. That is important because students have to understand the basics of current academic knowledge before they can challenge it. I am just worried. Does the hon. Lady see the amendment including instructional elements for students so that they could reject information about, say, how lenses work, if they are studying to be optometrists? Or does she mean research students and other students involved in the creation of knowledge? Would an amendment that explicitly said “students involved in the creation of knowledge” therefore be better?

[Fiona Bruce]

I hear what the hon. Gentleman says. I would like to think that the very concerning case of the midwifery student is a case in point.

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

I recognise the point that the hon. Lady is making. My concern is with the definition of academic freedom applying to academics and therefore not being applicable to students. I draw her attention to my amendment 44, which would insert the words

“and in the conduct of research”

to cover PhD students and other students involved in research. The point my hon. Friend the Member for Brighton, Kemptown was making was that we cannot say that academic freedom, in its entirety, which belongs to academics, can apply to every student, whereas students involved in the conduct of research behave more like academics, so it could apply to them. That is my issue with the amendment.

[Fiona Bruce]

I thank the hon. Lady for that gracious intervention. It is a pity that I cannot speak to amendment 60 in the same moment, because I think that would help clarify my reasoning for this amendment. I am concerned that without the express inclusion of students, there is a risk that those most vulnerable to self-censorship and adverse consequences in academia, such as being marked down, will remain unprotected.

There is the argument that freedom of speech, as referred to in the Bill, is sufficient to adequately cover students without the need to cover them through the term “academic freedom”. However, I would question that, as demonstrated by the examples I have given involving Professor Biggar and the midwifery student. I look forward to the Minister’s comments and ask her to consider the amendment as the Bill progresses.

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

It is a pleasure to serve under your chairmanship, Mrs Cummins. I listened to what the hon. Member for Congleton said. We have to be wary of where the amendment could take us in terms of the status conferred on academics by the term “academic freedom”. As the Minister herself said, it is a subset of a freedom of speech, but it is a really important one. That is why we sought to eke that out earlier, in order to make it sacrosanct: it stands alone, but it is linked to freedom of speech.

As regards the notion that students in their third week on campus could gain the status of academic freedom, I am not entirely sure, speaking from personal experience, that it would have been right for me to have been given that status when I had a degree of naivety about a particular subject, but I would be under the hon. Member for Congleton’s amendment. I do not think that that is right, because we are essentially putting students on the same level as those who have gone through a process of academic rigour to arrive at a position where they deserve this particular freedom and status.

[Emma Hardy]

rose—

[Sir John Hayes (South Holland and The Deepings) (Con)]

rose—

[Matt Western]

I will give way to my hon. Friend first.

[Emma Hardy]

We all agree that we want freedom of speech to apply to students. I wonder whether, as the Bill progresses, we might find an alternative place to make specific reference to them.

[Matt Western]

I now give way to the right hon. Gentleman.

[Sir John Hayes]

I am very grateful to the hon. Gentleman for giving way. I take his point about the technical difficulties with what is proposed. He is right about the different status and, indeed, different challenges faced by students and teachers. None the less, as my hon. Friend the Member for Congleton said, there is an issue—we heard this in evidence—about students self-censoring, and students may fear that they cannot say what they think. That could be outside teaching or it could be in seminars and so on. Therefore we do need to address the issue of students. Whether or not this proposal is the best vehicle to do so, I am sure the hon. Gentleman would agree with that.

[Matt Western]

I thank the right hon. Gentleman for his point and, likewise, my hon. Friend the Member for Kingston upon Hull West and Hessle for hers. I accept that there is a need for protection under freedom of speech. The differentiator for me is about academic freedom. I totally concur that all students, whether they be postdoctoral students or students in week two, arriving on campus in September or October of this year, have the right to freedom of speech, to say what they wish to say—with responsibility. But there is an area where I differ, and this was what I was edging towards in my questioning to various academics during the two witness sessions. What Professor Stock actually said was interesting. She made this very distinction. She thinks that

“the difference between academic freedom and freedom of expression”—

I am quoting her word for word—

“assuming there is one, can only be in principle grounded in expertise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q17.]

That is the case however we wish to define that expertise. And there is a problem, actually, about how people might consider what expertise is. I would say that the expertise is much more to do with methodology and understanding of academic rigour and discipline and how an academic arrives at a process of thinking, which a student is not necessarily—

[Emma Hardy]

A student is learning.

[Matt Western]

Yes, learning—going through that development. That is why students are attracted to going into higher education. It is to understand about the process of that academic rigour and methodology.

[Lloyd Russell-Moyle]

Some of the evidence that we heard from a number of the Government and Opposition witnesses was that, actually, part of the problem is the commercialisation in higher education, whereby students see themselves as customers and consumers and then demand more and demand their rights. There are some advantages to that, but there are clearly some disadvantages to it. There is a danger, is there not, that if this were used in the consumeristic mind of certain students, it could prevent the instruction of certain basics that students must accept to progress? Students could claim, “You’re not letting me progress even though I reject the way light moves through a lens.” It is perfectly legitimate for an academic to do that at a higher level, but if someone is teaching optometry, they require the student to accept certain basic principles to be able to progress and to look into people’s eyes. There is a danger that, with a consumeristic mind and with a more litigious mind, some students might end up shutting down academics and actually stopping them doing their instructive part rather than their research part.

[Matt Western]

I thank my hon. Friend for his, as ever, valuable contribution—and specialism of optometry. I always try to look through a rose-tinted lens. More seriously, the point he makes is made very well—[Interruption.] I missed that point. To be serious for a moment, my hon. Friend’s point is well made. It is about consumerism. I guess one of the things that motivated me to get into politics was that, as a kid of the 1960s and ’70s, I enjoyed education and access to all sorts of things without the privilege of money. We need to row back on how consumerism is becoming so corrosive of relationships between all sorts of authorities—I am not talking only about universities. How people view public service, in whatever manifestation, seems somehow to be about getting one’s money’s worth, whether on council tax or, in this case, educational fees.

14:15

To my mind, it is important that anyone who is able and keen to go to any form of higher education understands that it is a privilege, whatever they choose to study. That does not somehow give them the right to do or say certain things, just because they are paying £9,000—or £30,000 or £50,000 in total over three years—for that privilege. We need to disconnect that consumerist mentality from that kind of thinking, because it is damaging to relationships between academics, institutions and student cohorts.

[Fiona Bruce]

Will the hon. Gentleman reflect for a moment on the position of doctoral students, which was mentioned by Professors Goodwin and Kaufmann? A student studying for a doctorate has considerable expertise in their field and, at the same time, might be tutoring some more junior students—undergraduates. Is it not a somewhat distorted situation and a strange irony that they could claim the protection of academic freedom for anything said in the tutoring, but not as a doctoral student?

[Emma Hardy]

rose—

[Matt Western]

I will give way to my hon. Friend, and respond to the interventions together.

[Emma Hardy]

I am sorry, Mrs Cummins, I did not realise that in declaring our interests we had to say what our partners do. My partner is at the University of Hull doing degree apprenticeships, which I am very proud of.

To respond to the hon. Member for Congleton, our amendment 44 includes the words

“and in the conduct of research”,

to close the loophole that she has just mentioned, of a doctoral student involved in research. We would like to close the loophole with that amendment.

[Matt Western]

I thank the hon. Member for Congleton and my hon. Friend for their interventions. Yes, there is a differentiation between doctoral and undergraduate students.

Vitally, with academic freedom, special status is conferred. It is not something someone gets just because they turn up on a campus, or sign up to the Open University or whatever; it has to be conferred on those individuals who are, in essence, academics in the traditional sense. What they have is founded on their research—that thinking, the methodology, the scholarly debate. Ultimately, because their work is peer reviewed, it is understood to have a robust methodology. They have earned that—I used “earned” in the witness sessions, which was perhaps slightly the wrong word, and there might be a better word. It is an appreciation that the academic has gone through the academic thinking that has led them to express a particular thought or piece of research and outcome.

To my mind, that is the essential element, the primacy of academic freedom, which is why it is so important to separate it out from freedom of speech—hence our points this morning. Academic freedom defends the right to express ideas based not simply on opinion, but on academic research. I stress that point.

In the evidence session, the hon. Member for Congleton said:

“I am thinking not only that academic freedom is important generally for anyone at a university, but that some students, such as doctoral students, may also be tutoring.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q196.]

As she said earlier, that is an important distinction because that role has been given to them by the university. It has conferred on that person a status, and there is a responsibility that goes with it. That is a very important distinction.

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

I really do think that the hon. Member for Congleton has a point. The issue is how we define that point. I hope that it applies retrospectively as well, because I would not mind challenging some of my essay marks from about 50 years ago.

The point is that the only way that a large number of students can finance their PhD research is by doing separate tutoring at the university, and therefore they have an academic status. Somehow we must find a form of wording for this Bill that protects them. At the moment, it is too loose. Colleagues have tabled other amendments—actually, I have tabled amendment 45, which focuses on innovative research. I am fearful that someone who, like me, is a pain could challenge their mark for a particular essay purely and simply because they disagree with what is being taught, even if they are wrong.

One of the biggest contentious issues at the moment is climate change. There are rows going on while academics are trying to identify a whole range of the causes of climate change as well as some solutions to it, and it is incredibly contentious. Lecturers and professors do have a responsibility to point out where they think something is wrong or ludicrous, and mark it down on that basis.

[Sir John Hayes]

The right hon. Gentleman makes an extremely important point. It is easy to mistakenly see this through the prism of political ideas. However, it is actually not just about political ideas, but about all kinds of challenges to orthodoxy. Some of those challenges will be scientific, some will be technological and some will be about philosophical principles, which are not to do with the politics we enjoy here. The right hon. Gentleman is right: innovation is a much bigger subject than political debate.

[John McDonnell]

There are even elements in science itself where there are really contentious issues and we know that some scientific theories are being brought forward for political motives—we have seen that around race in the past, about genetics linked to racial groups and so on—but an academic would throw the whole essay out on that basis. There are some really contentious issues here.

The hon. Member for Congleton is right to point out the issue of non-inclusion of students, but we must find a definition that enables us to ensure that there is a level of academic expertise at which the student should be operating, which qualifies that person to have academic freedom and the right to free speech. I think that is very difficult.

To come on to the point made by my hon. Friend the Member for Brighton, Kemptown, in academia, people are now extremely litigious. They will challenge individual gradings or the award of the degree classification. What we often find now—ask any university—is that a large amount of money and time is being spent on defending the awarding of degrees due to this sense of being a consumer, of buying a product. It is as though they are challenging the quality of the degree awarded as though it were a washing machine. There is a real issue here.

[Lloyd Russell-Moyle]

My right hon. Friend makes some good points about the litigiousness, but also about the ability that people have to challenge the status quo to create knowledge. That is when they then take part in research, and that is when they then take part in the production of knowledge.

For undergraduates, however, and even sometimes in taught masters programmes, particularly for professional qualifications, it is about instruction. Very often, in that purpose of instruction, students should be able to make an argument that is not their own. Their teachers want to say to them, “If you just make your own argument, I am going to mark you down.” We talked in the evidence sessions about debating societies. Teachers want to say to their students, “If you produce an essay which is your own argument, that is not going to be highly regarded. I want you to produce something you might vehemently disagree with, but that is the point of this exercise.”

There is a danger that, if students are given personal academic freedom, they will say, “Well, that is not my view. I have got an academic freedom to express what my view is.” The distinction must be between taught and research, and between the creation of knowledge and instruction. The flipside is a researcher or university member of staff enrolling in a course for academic interest, and then taking on a different role as a student and being instructed. The freedom does not stay with the person; the freedom is the role that the person is undertaking at that moment.

[John McDonnell]

Right, I am waiting for the Minister to say that this will be covered in guidance. On this occasion, I might well support her, because it is complicated. It is a combination of the level of the degree and the content and status of the research. In some instances, there will be very specific examples and we will see it playing out in individual cases and challenges setting a precedent. If we are not careful, I can see the vista being lawyers making a huge amount of money at the expense of universities.

The hon. Member for Congleton has raised a genuine issue and we should address it with subtlety, recognising that it could open the doors to a whole range of activities that would burden universities and confuse the individual academics and students themselves. I look forward to the guidance.

[The Minister for Universities (Michelle Donelan)]

It is a pleasure to work with you today, Mrs Cummins. These amendments seek to extend academic freedom protections to students as well as academic staff. Where clause 1 provides that higher education providers must take reasonably practical steps to secure freedom of speech for staff and members, as well as students and visiting speakers, this includes securing the academic freedom of academic staff. Academic staff have studied and researched for many years to reach the positions they hold. It is wrong for them to fear for their jobs or career because they have taken a minority view or put forward a controversial opinion.

I am pleased to reassure Committee members that the Bill goes further than previous legislation, broadening the definition of academic freedom so that it will include promotion and new applicants for academic positions. Indeed, it goes even further, in that all academic staff, not just employees, will have the benefit of academic freedom. That means that the Bill covers those who hold honorary positions, whether they are paid or not, as well as PhD students who teach undergraduates.

I must be clear that the additional protections afforded by academic freedom are relevant only to the academic staff of a provider. That is because the provision is about the risk of losing one’s job or the possibility of promotion, which are not issues that apply to students.

[Fiona Bruce]

I am listening very carefully to my hon. Friend, as I did to the right hon. Member for Hayes and Harlington. It was refreshing to hear him make common cause with me, and I appreciate it. If academic freedom is not to be extended to students, would freedom of speech under this Bill have covered the situation of the midwifery student who lost a year of her academic life? It is a very important point and I would appreciate it if the Minister reflected on it.

[Michelle Donelan]

While it would not be appropriate for me to outline how the Bill would apply to a retrospective individual case, I can give guarantees that in broad terms it will be comprehensive, and freedom of speech will cover students in a range of scenarios, so it is not necessary to include academic freedom for students. However, I have listened to the arguments that have been made today, and I will keep them under consideration.

[Fiona Bruce]

I thank the Minister for her promise to keep under consideration the points that have been made today by Members on both sides of the Committee, and I look forward to her returning to this issue as the Bill progresses. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

14:30

[Sir John Hayes]

I beg to move amendment 80, in clause 1, page 2, leave out lines 9 to 14 and insert—

“(6) In this Part, ‘academic freedom’, in relation to academic staff at a registered higher education provider, includes their freedom within the law—

(a) to question and test received wisdom,

(b) to put forward new ideas and controversial or unpopular opinions, and

(c) to design and deliver their own teaching, notwithstanding direction as to the topic or occasion of their teaching,”.

This amendment affirms the freedom of academic staff to exercise their professional judgment in the design and delivery of their teaching. It allows that Departments may nonetheless direct academic staff as to the topic on which they should teach, and when.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 28, in clause 1, page 2, line 10, leave out from “provider” to the end of line 16 and insert “includes freedom—

(a) to question and test received wisdom,

(b) to put forward new ideas and controversial or unpopular opinions, and

(c) to express opinions about a registered higher education provider, including without limitation opinions concerning its curricula, governance, affiliations and the teaching and research conducted at the provider,

without unlawful interference, and without being adversely affected (or being placed at risk of being adversely affected) in any of the ways described in subsection (7).”

This amendment would enshrine the protections afforded to academics under ECHR case law (Article 10) to speak about their institution without unlawful interference.

Amendment 27, in clause 1, page 2, line 11, leave out

“within their field of expertise”.

This amendment aims to ensure that the definition of “academic freedom” is not restricted by a requirement for it to be exercised within an academic staff’s “field of expertise”.

Amendment 45, in clause 1, page 2, line 13, after “new ideas” insert “, innovative research”.

This amendment would expand the definition of academic freedom to encompass innovative research carried out by academics.

Amendment 46, in clause 1, page 2, line 14, at end insert—

“(c) to freely pursue chosen topics for teaching and research without government or institutional interference, and

(d) to express their opinions in relation to higher education providers, including that at which they are employed,”.

This amendment would expand the definition of academic freedom to encompass an academic’s ability to freely pursue chosen topics for teaching and research, free from external interference, and express an opinion in relation to a higher education provider.

Amendment 49, in clause 1, page 2, line 14, at end insert—

“(c) to criticise or otherwise express opinions about—

(i) the governance of the higher education institution, and

(ii) decisions taken by the higher education institution, including decisions about affiliations with other bodies,”.

This amendment would provide protection to academics, under the auspices of academic freedom, to express opinions about the governance, decisions and affiliations of higher education institutions.

Amendment 47, in clause 1, page 2, line 20, after “the provider” insert “or other providers”.

This amendment seeks to expand the ways in which an academic cannot be adversely affected due to an exercise of their academic freedom, to include loss of their job or privileges at any other provider.

Amendment 48, in clause 1, page 2, line 20, at end insert—

“(c) the denial of a just and open path for career development, including fair procedures for appointment”.

This amendment seeks to expand the ways in which an academic cannot be adversely affected due to an exercise of their academic freedom to include the denial of a just and open path for career development.

Amendment 60, in clause 1, page 2, line 20, at end insert—

“and

(c) adverse impact on educational progress.”

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 57, in clause 1, page 2, line 28, leave out

“and within their field of expertise”.

This amendment is consequential on Amendment 27.

Amendment 58, in schedule, page 15, line 17, leave out

“and within their field of expertise”.

This amendment is consequential on Amendment 27.

Amendment 68, in schedule, page 15, line 27, at end insert—

“and

(a) adverse impact on educational progress.”

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

[Sir John Hayes]

My amendment would have been pertinent in any case, but it has been made more so by the debate we have just had and the progress of the Committee so far, which has drawn our attention to the distinction between freedom of speech and academic freedom. That was made clear in the evidence sessions by a variety of witnesses, and it has been amplified today by speakers from both sides of the Committee. My amendment attempts to revisit that matter and add it to the Bill.

This is not a straightforward affair, as has been widely acknowledged by the Committee. As the Minister has made clear, freedom of speech is a broad term, and it might be said to be sufficiently broad to encompass a range of liberties, including academic freedom. But there is something specific about academic freedom, and this is rooted in the very principle of university learning. I could wax lyrical about John Henry Newman and the idea of a university, but you would not allow me to do so, Mrs Cummins, and the Committee would not thank me for doing so. The Whips certainly would not, given that it would prolong our proceedings unduly.

The essence of university education is giving academics the space to innovate, as the right hon. Member for Hayes and Harlington made clear in his last contribution, but it is also about fuelling intellectual curiosity, which leads to creativity. That could be in all kinds of spheres of work. We are inclined, because of who we are and the job that we do, to see this through the prism of political discourse, but it is much wider than that. We really do need to recognise that academic freedom is a fundamental part of allowing that curious creativity, if I can put it in those terms, to flourish in our places of learning. There is some evidence, from what we have heard, that that is being restricted—being stymied, one might say. That is partly because, in the words of Professor Goodwin, many academics

“no longer feel particularly welcome, safe, secure, or ultimately able to say what they really think, and for every one of me, there are 20 or 30 people behind me who do not feel able to come and speak and voice their concerns”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 100, Q208.]

as he did when he gave evidence. There is a concern that some academics feel as though their academic freedom is being restricted.

We also heard from witnesses what that academic freedom amounts to, and I have tried to reproduce those ideas in my amendment. They include the freedom

“to question and test received wisdom…to put forward new ideas”

and have those scrutinised, too, even where they are unpopular or controversial. The hon. Member for Brighton, Kemptown said that one of the tests of a good student is their ability to make a case that they do not believe in. By the way, I could say the same about a good teacher. When I taught at university before I became a Minister in 2010, I would often advance arguments that bore no relation whatsoever to what I thought, because I was teaching government and politics. All good teachers do that, all the time, and students should be tested on that basis too, exactly as the hon. Gentleman describes. That is what a vital and creative learning environment is all about. I think Members on both sides of this Committee would want to see that reinforced by the provisions of this Bill, and that is precisely what I am trying to do in my amendment.

[Lloyd Russell-Moyle]

Will the right hon. Gentleman give way?

[Sir John Hayes]

I will in a moment, but now that I am flowing poetically I do not want the hon. Gentleman to break into the stanza. [Interruption.] All of these things are a matter of opinion, John. There is also a point about what I might describe as top-down pressure. We know—Members who have been involved in higher education, including many on this Committee, will be familiar with this—that there is often a tension between university management and particular university departments; between the academic staff and the senior management team who are often long detached from their original academic roots. It is a concern that sometimes university authorities will instruct academics to teach particular things, possibly even in a particular way. Defending the integrity of the people at the academic coalface is really important, and that is what the second part of my amendment seeks to do.

[Emma Hardy]

rose—

[Lloyd Russell-Moyle]

rose—

[Sir John Hayes]

To whom should I give way first? I am terribly old fashioned, so I shall give way to the hon. Lady.

[John McDonnell]

Don’t fall for it!

[Emma Hardy]

As a former teacher who had the statutory national curriculum and regular reviews from Ofsted on the best way to teach x, y and z, there is part of me that reads the right hon. Gentleman’s proposed paragraph (c) and thinks, “Wonderful! Yes, the passion and the ability to teach in the way you want on the subjects you want”. However, as has been alluded to—and this is where we get to the detail of it—there are subjects at university that require things to be taught in a particular way to get through a certain amount of basic knowledge components on that course. It might be suitable for some courses, such as government and politics, where there can be greater freedom, but studying medicine, for example, might need to be more instructive. Therefore, much as in my heart I am with him, in my head I find that, as it stands, it is not quite the right sentiment.

[Sir John Hayes]

I am pretty certain that the hon. Member for Brighton, Kemptown is going to make a similar point, but I will let him do so when I give way to him.

Of course, the hon. Member for Kingston upon Hull West and Hessle is right that it cannot be a free-for-all. Every academic knows what their professional duty is: to transmit a body of knowledge, but also to stimulate a range of ideas, to stimulate people to think freely and openly about the subject matter, which they are missioned to teach and their students are missioned to study. I take the hon. Lady’s point. The amendment is not saying, “Do what you like and it really does not matter”, because in the end academics have a responsibility to their students. That is an important professional duty as well as a responsibility. We must not be too permissive in our approach to what academics can or cannot say and do. However, I am just as concerned—in fact, I am more concerned—about the character of leadership in some universities.

We have talked informally outside this Committee about governance and accountability within universities. When the Minister has a spare moment after getting this Bill on the statute book and is looking for her next Bill, I think that all of us across this House, including those on the Front Bench, should spend time reflecting on and considering the very important issue of university governance.

[Lloyd Russell-Moyle]

I broadly agree with what the right hon. Gentleman says and with the subsequent amendments, some of which say similar things. My problem is around academic rigour, which universities must ensure is provided. Would he address the issue as it relates to basic instructional courses such as optometry, or any of the life sciences. I mention optometry because the University of Bradford has a very good optometry department. I have mentioned my connections with the University of Bradford, the University of Sussex and University and College Union before, and it is on the Register of Members’ Financial Interests. It might be dealt with better in regulation than on the face of the Bill, but might there be something to be said for the freedom of the academics to sit around the table and work out their plans without interference from management, rather than the freedom of an academic to decide what they do?

I put that forward because academics sit down together and work out a course of teaching, so they have a duty to sometimes challenge each other and say, “You need to teach this. You might not want to, but we need to get through it.” Could the wording around that be better? It would also address some of the right hon. Gentleman’s points on how academics have been removed from the management of course design over the years, and could restore their role at the heart of course design and teaching and learning. That would be a move forward.

[Sir John Hayes]

The hon. Gentleman is of course right about the changing balance of power within universities. Many senates no longer play the role they once did routinely. If anything, universities have become more pyramidical in their management structure. It is and always has been important to ensure rigour in the disciplines he describes, and validation of courses, including external validation, is an important part of assuring that rigour. I have been involved in that myself.

I take the hon. Gentleman’s point, but my worry is that these days there may even be ideological top-down instruction, so that one has to sanitise one’s curriculum in a particular way. It might be politically motivated, but it might be, as the right hon. Member for Hayes and Harlington implied, about all kinds of other things. It is not all about politics; it is sometimes about non-political orthodoxies. The whole point about academic freedom is that one can challenge what are assumed to be a priori assumptions. That is what the greatest among us have done over time.

I think I can find further agreement with the hon. Gentleman. The wording added may require further work to reflect the sentiment he articulated, but my purpose in tabling the amendment is to get the Government to think again about the relationship between freedom of speech and academic freedom, which populated quite a lot of the evidence we received from witnesses. The concern that we, across the Committee, and the witnesses shared is that academic freedom should, of itself, be placed at the heart of the consideration. The Minister has been reassuring about that, and what she has said so far publicly and in Committee encourages me, but I wonder if we need something in the Bill to reinforce the point.

[Emma Hardy]

As I said, my heart is definitely in agreement with the principles being outlined, but one of the depressing realities we face—I know this from a particular university—is universities having to drop courses because they are not as marketable and attractive to students and they cannot get the people on. Universities are making decisions to wipe out entire courses, because it costs too much to run them. I would love to say that, yes, academics should have complete freedom to design and deliver courses however they want, but we have to be mindful that there is a cost involved. There have to be some conversations with the management team about whether the course they are putting on will make ends meet and will not end up costing university more in the long run. I wish we did not have to talk about this.

[Sir John Hayes]

The hon. Lady now really is opening a hornet’s nest with the issue of money, how universities are motivated, and how far that is skewed. I have struggled against the narrow interpretation of learning as an entirely utilitarian matter for all my political career, including my ministerial career. As Committee members will know, I was a stout defender of adult and community learning, not because it was necessarily and directly linked to employment, but because it fed societal wellbeing. Let us make the case for the glory of learning for its own sake.

The hon. Lady provoked me into that digression, Mrs Cummins, but she is right to say that sometimes universities are driven by those utilitarian purposes, hence my point about senior management. We have recently heard about money from outside sources—China was mentioned in our witness sessions, and rightly so, given recent revelations. There are all kinds of ways in which what is taught and learnt at universities can be altered by factors that go well beyond the interests of either academics or students. I am concerned about the matters that the hon. Lady has raised, and the Government will have a watchful eye on all that, too.

I have a fundamental disagreement with Opposition Members, in that I think the Bill is welcome and a good thing. I know that they have reservations. However, I am equally sure that if the Bill is to be effective, it needs to be as well drafted as it can be. That is precisely what scrutiny is designed to do. In that respect, drawing out and codifying the distinction in some way seems to me to have value. I make no definitive judgment about how that should be done; my amendment is very much a first stab.

I should not say before the Minister has spoken that I will not press the amendment to a Division, or I will extract no concessions from her. Instead, I shall hang on, hold fire, and hear what she has to say. The amendment is very much designed to push and probe the Government, but if she says it is a complete load of nonsense, I will have to test the Committee’s view.

I feel some responsibility to reflect the fact that the amendment is one of a group. There are some very good amendments in the group, tabled by Members on both sides. I will not name them all, but amendment 48, in the name of the hon. Member for Warwick and Leamington, is helpful, and amendment 60, in the name of my hon. Friend the Member for Congleton, brings value to what we are doing. A number of strong amendments in the group are designed in a constructive way to hone and improve the Bill. I will not go through them all because that would be tedious and people can speak for themselves, but there are some good amendments worthy of further consideration by the Committee and the Government.

[Matt Western]

I thank the right hon. Gentleman for his remarks and his amendment, which has generated a huge amount of debate. It is interesting that several of us have had a go at the same provision to embellish and improve it. The definition of academic freedom is loose and hard to pin down. The fact that three amendments are addressing it emphasises how concerned we all are about how it is defined.

The right hon. Gentleman’s amendment seeks to expand academic freedom to encompass how a teacher delivers their classes. The amendment tabled by the hon. Member for Congleton goes a little further in seeking to protect academics under the umbrella of academic freedom whenever they express an opinion about the practices of a provider. I guess that this is where we get into subjective interpretations of what academic freedom should be.

During my research I came across part 6 of the UNESCO definition of academic freedom, which guides my thinking and that behind amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington. Under the UNESCO definition, the concept of academic freedom is broken down into five parts: freedom of teaching and discussion; freedom in carrying out research and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work; freedom from institutional censorship; and freedom to participate in professional or representative academic bodies.

My concern about the amendments tabled by the right hon. Gentleman and the hon. Member for Congleton is that they are trying to nail down a definition, but may have left out a couple of crucial components. Amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington, is a compromise with the position of the right hon. Gentleman and the hon. Lady. It touches on two of the most of crucial elements in providing that clarity: freely pursuing chosen topics and expressing views of their institution. Interestingly, the University and College Union favours an amendment in the realm of ours. It is also deeply concerned that narrowing the definition of academic freedom will limit the ability and willingness of education staff to speak out on wider social or political issues, or indeed against their employers. An amendment such as ours would offer expansive protection for the academic freedom of staff, including from pressure and censorship by public authorities like the Department for Education and the Office for Students or by employers.

The amendments would offer protection against redundancies targeted at particular academic disciplines or those perceived to be politically motivated.

[Emma Hardy]

My mistake, Mrs Cummins, for not realising that the amendments are grouped and that I should be talking about all of them. An aspect of academic freedom and the importance that we want the Bill to place on the role of academics is illustrated by amendment 27, tabled by the hon. Member for Congleton. We should not restrict academics with the narrow definition including:

“within their field of expertise”.

We do not know who will make the definition. That is an important issue, too.

[Matt Western]

I thank my hon. Friend and I shall address that important point shortly.

Amendment 47 would protect academics against not securing promotion in respect of different jobs in other institutions. It aims to ensure that academic freedom is protected across the range of roles that someone may hold, not simply where an issue may arise. For instance, an academic may be employed by two HE institutions or hold various visiting professorships. The amendment would ensure that an institution cannot punish an academic for disagreeing with research or published work at another institution.

This links with open, transparent career development —an honest approach. We heard from Tom Simpson that decisions on research grants and appointments are made in the culture of the office. To a certain extent, that is inevitable. That is the reality of how organisations work, but I get what he was trying to say. Amendment 48 would prevent a university from denying training opportunities. as a way to punish an academic for the views they hold. The essential difference from our amendments is that they seek to protect those who can benefit from academic freedom.

Amendment 60, tabled by the hon. Member for Congleton, on the inclusion of adverse impacts on educational progress, implies that academic freedom ought to be given to students. We had a long debate about that. I have reservations about it, and I am not convinced by the argument that was made in the previous debate. The experience that I have gleaned from discussions with higher education institutions in the past six months is that many assessment methods are anonymised. Each student is given a unique number and papers or their equivalent are marked by several academics to avoid discrimination. Institutions do their utmost to ensure that discrimination does not prevail and damage students’ progress.

For those who can and should benefit from academic freedom, I have sought to expand the definition to include innovative research. Amendment 45 would ensure that the definition of academic freedom includes the world-class innovative work carried out in our universities. The current definition in the Bill simply covers new ideas or controversial or unpopular opinions, but most of the socially or scientifically beneficial or prize work conducted by academics is innovative, rather than falling into those narrow categories. The right hon. Member for South Holland and The Deepings expanded on that point, and said that it would be valuable to include that, mentioning Galileo and Darwin, who conducted innovative research centuries. The two go hand in hand. Think about Rosalind Franklin and the ground-breaking work she did in the face of a counter-view in society about genetics; she clearly did incredibly important research. More recently, we have Oxford’s work on vaccines. That kind of work has to be protected at all costs.

One of our witnesses, Dr Ahmed, believes that certain forces are leading academics not to pursue lines of research that they think might be fruitful. Research is fundamental, and it is important to protect it. I can well understand the perspective of institutions on the work that is done and why they seek to have some sort of direction over research and teaching wherever possible. Various Members, however, spoke about how institutions present themselves in what has become an incredibly marketised sector. The institutions did not create that situation; it is the result of what was put in place years ago, and they have to respond not just to a UK market but to a global market for higher education. They are trying to appeal to the needs of the UK, what students wish to study and what research is needed, as well as looking at trends, approaches and the needs of global society.

[Emma Hardy]

I risk straying from the Bill, so I will be quick. The evidence that we heard and our discussions today show that the marketisation of higher education has had a negative impact on the student experience. I hope that the Minister takes that evidence seriously, as well as the remarks that Members on both sides of the Committee have made about the impact of marketisation on education, so that in a future Bill Committee we can secure consensus on an alternative model.

15:00

[Matt Western]

I thank my hon. Friend for her intervention. I totally agree.

In response to the point raised by right hon. Member for South Holland and The Deepings about the detransitioning research at the University of Bath, Professor Whittle said 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, which would push the likes of the University of Bath towards exploring further how such research proposals can be encouraged.

The issue goes both ways and cuts across the political divide, as we have heard. A briefing I received from Ruth Pearce from the Center for Applied Transgender Studies revealed examples of where research has been disrupted by aggressive anti-liberal voices. That included Peel and Newman’s survey on legal gender, which received an uptick in polarised, confrontational responses after being shared on a UK anti-trans forum. Stein and Appel describe how a survey on young LGBTQ people’s experience of cyber-bullying in Germany was derailed, with nearly every dataset containing expletives and hate speech.

That work needs to be protected under the legislation, and most academics would agree that this kind of work falls within their academic freedom. Amendment 47 would also bring us in line with the German model, which is based on the Humboldtian approach and focuses on the unity of teaching and research, with both staff and students able to enjoy academic freedom. It is important to include innovation within the definition of academic freedom in the Bill.

Amendment 27 addresses the point about field of expertise, which was raised by the hon. Member for Congleton. I share some concerns about this, as do my colleagues. Indeed, my hon. Friend the Member for Kingston upon Hull West and Hessle commented in the evidence session on the submission from Professor Anderson, saying:

“His concern is around changing the wording in the Bill from ‘freedom within the law to question and test received wisdom’ to ‘freedom within the law and within their field of expertise’.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 10, Q17.]

I have concerns that a Bill allegedly intended to promote academic freedom could limit it if people are limited to what their field of expertise is.

[Sir John Hayes]

rose—

[Matt Western]

And speaking of expertise.

[Sir John Hayes]

I entirely agree, and I wanted to say that on the record. Professor Biggar made that point, too, as the hon. Gentleman will remember. The problem is how we define someone’s field of expertise. If we define it too narrowly, they will not be covered. The Minister, I know, will have an explanation of this and a counter-argument that may satisfy us, but I am concerned, as witnesses were and the hon. Gentleman is, that we risk getting this wrong in the Bill unless we take account of the fact that people’s field of expertise is often broader than the definition of what they do professionally. Expertise is a complex thing. I think we need to look again at this. I am sure the Government will have heard what the hon. Gentleman and others have said.

[Matt Western]

I thank the right hon. Gentleman for his intervention. Yes, we heard virtually all the academic witnesses and others express the importance of this point. Dr Ahmed, referring to Professor Stock, spoke about Professor Richard Dawkins, saying:

“theology is not his area of expertise. Many…would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q18.]

[Emma Hardy]

This is crucial. This small amendment would remove five words from the Bill; it is incredibly small and very easy for the Minister to agree, but incredibly important. If the Bill is what it is claimed to be—a Bill on freedom of speech and academic freedom—and if the Minister honestly believes that that is what is written here, she will accept the amendment to remove

“within their field of expertise”,

because that is a limitation on academic freedom. It is clear, and no future guidance will change it. If those words are left in the Bill, academic freedom is limited. I cannot put it any more strongly than that. All the evidence we heard made the same point. I hope the Minister will accept the amendment.

[Matt Western]

I thank my hon. Friend again for a valuable intervention.

[Sir John Hayes]

Is this not about areas of interest versus fields of expertise? An academic may have areas of interest that extend beyond the strict and narrow definition of their expertise in their subject. By using that sort of term—I am sure the lawyers will go one better—we might be able to solve the problem.

[Matt Western]

I thank my—I was about to say hon. Friend. I thank the right hon. Gentleman for that point. I am sure that my hon. Friend the Member for Kingston upon Hull West and Hessle will elaborate.

The reality of the academic community in higher education is that their areas of work are fluid. They do not see themselves as necessarily specialists in one field or another. As we heard in our evidence session, a statistician is a mathematician, but a mathematician could become a specialist or well versed in issues such as migration or epidemiology—medical science, in essence. How does one define “their area of expertise”? We have to be extremely careful. The right hon. Gentleman’s suggestion may well be in the right area, but much more consideration is needed, and for the purposes of the Bill we have to remove these words.

I will not expand on what Professor Nigel Biggar said. That has been done already.

[Charlotte Nichols (Warrington North) (Lab)]

On amendment 27, I am interested in what form of words other than

“within their field of expertise”

could be used to act as a safeguard, because we might see cases in which academics are picked up for use of their freedom of speech more widely, but there is a distinction between freedom of speech and academic freedom.

[Matt Western]

My hon. Friend is quite right. We have not proposed anything that necessarily refines that. At this stage, I think, it is important to remove the words, and minds greater than mine—perhaps in the House of Lords—may come up with an alternative. It is a really important area that needs to be defined.

[Lloyd Russell-Moyle]

My hon. Friend has already developed the phraseology and wording in his comments about research and academic interest. Were a matter within an academic’s research and interest areas, that would be their definition. It would be broad enough; it would also go to amendment 80 and the right to teach in areas of their academic interest and research, and resolve my concerns about that amendment. It would be good if the Government were to reflect on that phraseology.

[Matt Western]

I totally agree.

[Emma Hardy]

The original definition of academic freedom did not have these five additional words. The Government chose to add them. I do not believe we need to rewrite or put in words. Originally, the definition of academic freedom was:

“freedom within the law to question and test received wisdom…put forward new ideas and controversial or unpopular opinions, without placing themselves at risk”.

The Government added the unnecessary words

“and within their field of expertise”.

[Matt Western]

My hon. Friend is right. I sense that we agree across the Committee—

[Emma Hardy]

Some of us.

[Matt Western]

Some of us are agreed that it should not be in there, and I think the House of Lords should explore whether further definition is required.

From talking to academics over the last six months and more, I want to stress how incredibly fluid the areas of research they work in are. They go through wholesale change in areas of interest and exploration. That is the kind of innovative research we want, and it is one of the great things about our institutions. People talk about UK universities being the best in the world in different categories, but we genuinely do have a very strong reputation for higher education globally. It needs to be protected.

We support the amendment by the hon. Member for Congleton on the removal of those words. We will, of course, support the amendments standing in my name and that of my right hon. Friend the Member for Hayes and Harlington.

[Fiona Bruce]

I will speak to my amendments 26 and 27 and, very briefly, to 60. I had hoped that the short but crucial amendment 27 might attract support from both sides of the Committee. Judging by some of the comments from Committee members today, not least the hon. Member for Kingston upon Hull West and Hessle, I continue to live in hope. I had hoped even the Minister might give a positive response to the amendment.

The hon. Member for Warwick and Leamington has already made the point that the Bill is intended to protect and promote academic freedom, but may in fact restrict it if academic freedom is defined as an academic’s freedom to express views only within their field of expertise. There are real problems with this phrase. We have heard some of them already, as my right hon. Friend the Member for South Holland and The Deepings has said.

To elaborate on some of the comments made, an initial difficulty is that of defining an academic’s field of expertise. Giving evidence, Dr Ahmed raised the very good example of Professor Richard Dawkins, who is an expert in evolutionary biology. Dr Ahmed said that one could argue that theology is not within his field of expertise, or even competence, yet his freedom to critique religion and contribute to the debate on God should not be denied to him merely due to an arguable lack of specific expertise.

[Sir John Hayes]

Or just because he is wrong.

[Fiona Bruce]

My right hon. Friend may have his view, but I could not possibly comment.

Without another look at the words “field of expertise”, academics could find themselves with fewer free speech rights than those in other vocations, since straying outside of their perceived field of expertise might lead to more complaints, increased disciplinary action and dismissal—outcomes clearly at odds with the intention and purpose of the Bill.

A second difficulty is that an academic’s expertise often stretches over a variety of fields. A biologist could have an insight into economics, and a theologian may well have useful musings about sociology. The interaction between a variety of subjects is often how ideas are tested from fresh perspectives, leading to innovation and thought-provoking insights for the benefit of society as a whole. A requirement to stay within one’s field of expertise could have an unintended chilling effect, which I will elaborate on when I speak to amendment 28. Academics, particularly junior academics, might seek to modify their speech and academic inquiry in a bid to ensure that they qualify for protection under the law.

It cannot be right to penalise an academic simply because he opines on the issues of the day. The issues may be completely outside his field of expertise, and he may speak from a political perspective or with faith-based views, such as on marriage or being pro-life, but is not deliberating on issues of the day a key part of university life?

15:14

[Charlotte Nichols]

I am interested in the examples that the hon. Member has raised as things that should be protected as part of academic freedom, but I would draw the distinction back between academic freedom and freedom of speech.

Just because someone is an academic, for example, does not mean that any topic that they choose to wax lyrical about should necessarily be protected, particularly if they are engaging in harmful stereotypes, discriminatory behaviour and so on. As much as I agree with the broad thrust of taking this out, I think that we need to reflect in the legislation a way in which we might draw that distinction between academic freedom and freedom of speech. Does the hon. Member not agree?

[Fiona Bruce]

The objective of the Bill is to secure freedom of speech within the law. We are saying that, provided that someone speaks within the law—whether about their field of expertise or not—they should be covered by the Bill. They should have the freedom, as academics, to express views and not be penalised if those are unpopular, unfashionable or not mainstream. I hope the Minister will look at amendment 27 very seriously, above all those I have put down, and consider it in a positive light as the Bill progresses.

Amendment 28 is self-explanatory, setting out a number of factors that need to be covered and clarified in the definition of academic freedom. Not the least of those is the importance of academics being able to set the reading matter for subjects that they are teaching. I will set the amendment in context, underneath amendment 27.

A deeply concerning trend has emerged in our universities that has seen academics lose their jobs, students suspended from courses and refused affiliation with their unions, and visiting speakers refused a platform, due only to their expression of non-mainstream viewpoints. Some are not, in fact, non-mainstream. In his evidence, Matthew Goodwin, a professor of politics and international relations, told us he was an outlier when speaking of Brexit, with only 10% of academics sharing his support of it. However, Brexit was actually voted for by over 50% of those who voted in the referendum across our country.

We also heard of instances of academics being subject to vilification or discrimination for exercising their right to academic freedom and freedom of speech within the law. Although we did not hear of these instances in evidence, I will give two examples. In 2019, I raised in this House the well-publicised and worrying experience of respected academic John Finnis, an emeritus professor of law and legal philosophy who had taught at the University of Oxford for some 40 years at that point, yet students were calling for him to be removed from office simply for holding traditional Catholic views. Much more recently in the press, we had the case of David Palmer, a Catholic who was denied recognition by Nottingham University for the post of chaplain due to comments he made on social media expressing no more than the Church’s traditional views on euthanasia and abortion.

Professor Goodwin told us:

“This is how it typically works: a group of students will make a complaint about an academic. They may take that academic’s words out of context. They may imply that something was said that may not have been said—who knows? That academic is typically investigated and, as we saw in the case at Edinburgh recently, they are suspended and asked to leave campus for six weeks or so while the case is investigated. There is a reason why academics say that the punishment is the process. The reputation of that academic is now in tatters. Nobody will hire that academic. His or her chances of getting a research grant are probably minimal, and those of getting published have been severely damaged. That individual is tainted.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q197.]

Given that Professor Kaufmann told us how there can be over 100 applicants for any post in academia, that is a serious disadvantage that can be experienced and suffered. We were also told by more than one witness that self-censorship by academics is the most pervasive impact of all—the so-called “chilling effect”.

We heard about that from several witnesses during the course of evidence. The case of Dr Ahmed is particularly instructive. We heard how he struggled to get just 25 signatures of people willing to put their name publicly to a motion on whether to change the wording of a university’s policy. That goes directly to the reason why we need amendment 28. Once it was put to a vote by secret ballot, it passed by 80%. Some witnesses spoke of staff and students refraining from saying things they considered to be important or not pursuing lines of research they thought would be fruitful, because they feared adverse consequences, such as disciplinary action or another form of marginalisation or vilification.

Amendment 28 seeks to augment and clarify that academic freedom should include the freedom to express opinions about a university, including its curricula, governance, affiliations, teaching and research, without the risk of being adversely affected. Amendment 60 seeks to ensure that students do not suffer any impact on their educational process, such as being marked down. We have already had a good debate on amendment 59, with which amendment 60 is linked, so I will leave that with no further comment, save the hope that the Minister will reflect on amendment 60 with amendment 59.

[John McDonnell]

I want to repeat my declaration of interest as an honorary fellow of Birkbeck, University of London, which is the same as the hon. Member for Ruislip, Northwood and Pinner. I failed to declare that my wife is an educational psychologist and is now a part-time tutor at the Institute of Education at University College London. I just want to make sure that our register of interests is full. I cannot think of any other family who are involved, but at least I will get that on the record.

Before considering the amendments, I want to reflect on the fact that we have come a long way since section 28 in the 1980s. We are no longer tolerating any Government interference in matters—for example, at that stage, in just talking in an educational setting about LGBT rights. It is interesting and gratifying that we have come this far.

On amendment 80, I want to warn the Minister. The right hon. Member for South Holland and The Deepings has a propensity to get people into trouble. On one occasion some years ago, the Speaker called for a question in the House and shouted out “Hayes, the Whip”, but nobody was there and I got the blame for it, even though it was John Hayes, not the Member for Hayes and Harlington, so I caution the Minister. Ever since Pepper v. Hart, material in the House can be taken into account in legal actions, and the right hon. Gentleman is enticing the Minister into expressions around his amendment. I actually have some time for his amendment. All we are trying to do today is get a formulation—maybe by Report stage and certainly by the time the Bill gets to the Lords, which is packed full of legal experts—with more than even the Commons—who might well be able to assist us. I can understand exactly where he is coming from in wanting to maximise that freedom of expression of freedom of academic activity.

I want also to consolidate the alliance I now have with the hon. Member for Congleton. It is interesting that a number of witnesses raised the point that this form of words does not work—we have to find some other formulation. I have worked with a whole range of economists in recent years who have commented on a whole range of matters unrelated strictly to economic matters—for example, wellbeing, health, social care. Areas of interest evolve over time. They cannot be defined just by the job description of that academic. We are digging ourselves into a hole by leaving this in the Bill. To the hon. Member for Congleton, I say: screw your courage to the sticking place, because if we had a vote on that today, we would most probably win it. I would be careful about the assurances that she may get from the Minister, which might not completely eradicate that form of words from the Bill.

[Charlotte Nichols]

The Minister may find herself promoted and able to follow through on the assurance she has given today, so perhaps the vote is the right way to make sure that we sort that out.

[John McDonnell]

Given the way that heads are toppling at the moment, anything could happen. The guillotine is out there, certainly.

I now come to amendments 45, 46 and 48 in the name of my hon. Friend the Member for Warwick and Leamington, to which I also put my name. I want to be completely honest about this: those amendments have come from discussions that we have had with individual academics and trade unions. Those matters also came up in the evidence sessions. One issue that came up time and again is employment protection for academics. Their biggest anxiety is not just their ability to exercise freedom of speech and academic freedom but retaining their jobs, having access to appropriate promotion and so on.

The three amendments seek to provide that enhanced protection. My hon. Friend the Member for Warwick and Leamington has covered amendment 45. It seeks to make it absolutely clear on the face of the Bill that the provision pertains to innovative research as well. That was one of the issues that came from the evidence sessions: the biggest feeling of insecurity is among people who are doing leading-edge research that challenges existing establishment views and that, maybe for some, goes over the edge of acceptability. However, it is often the case—and I cite section 28 here—that those sorts of statements, activities and expressions of view become accepted wisdom within a period of time. All those equalities things that I can remember being condemned for personally in the Evening Standard throughout the 1980s are now accepted as Government policy and by all political parties. Putting “innovative research” in the Bill would close a door and clarify the situation.

Amendment 46 seeks to re-emphasise the ability of academics to freely pursue their teaching and research without—this is where section 28 comes into it —“government or institutional interference”. It is fundamentally important that we say that. We need to learn the lesson of section 28. Given the policies that have been developed on equalities by all our political parties, I think we have learned that lesson, but it is worth legislating to that effect as well. I do not want to be here in another period of moral panic over a particular issue, with a rush to Government activity that seeks to influence institutions in a way that means people suffer as a result, and in subsequent years people realise their mistake, by which time, unfortunately, too many people have been harmed.

The reference to “government or institutional interference” is quite significant. I say “institutional interference” because these days a large amount of policy development, and even policy making, is undertaken by agencies other than Government, agencies established by Government or institutions that have been funded and established to perform a role on behalf of Government.

The other issue—the prickly one, really—is the right of an employee or academic to criticise the institution that they work within. That is quite fundamental. The Minister might argue that the protections are there already in employment law and so on, but the message we were getting from the evidence sessions is that they are not. The way in which people are victimised by their institutions—“providers”, as we call them—or their employers can be quite subtle, and quite undermining in a way that might not stack up if they go to an employment tribunal, so it is worth putting on the face of the Bill that a person can challenge the institution that employs them and have that protection.

15:30

Of course, if any of these cases ever did come before the courts, there would have to be some test of reasonableness, but I think English law can cope with that. Having this protection on the face of the Bill would just give people more confidence. It is a reflection of what we heard and our own individual experiences when we have talked to academics and others working in this sector.

Amendment 48 covers the issue, which others have referred to, of not being denied career development. There are too many examples of people saying that it was about not just the appointment, but the ability to go on training courses and be supported in areas that would lead to career enhancement.

On amendment 47, we must ensure that these protections are all-encompassing. A person might be trying to be protected from the provider they are working for or operate within, but we also want to ensure that they are protected from the activities of other providers that they may want to work for or with in the future. That is why we are inserting “other providers”.

We are setting out a comprehensive range of protection. I say again to the Minister that if this form of words is not acceptable today, let us work on it and try to get it sorted for Report, or failing that, when the Bill goes to the House of Lords—although it is an institution I think we should have abolished years ago. If we can get a comprehensive range of protections, this Bill, which I still think is inappropriate, at least might reflect what we heard and what we know is happening on the ground, which is a serious cause of concern.

One of the reasons I am not happy with the Bill is that I believe most of these protections should be installed in employment law, which would mean that they are much stronger than they are in a Bill of this sort, but the Government have chosen to go down this path, and that is why we tabled these amendments. I think they are completely reasonable, and I cannot understand why anyone would not support them. If it is a matter of wording, semantics or whatever, let us work on them and resolve the issues. Either we should accept them today or we should get a very strong commitment that a similar form of words will be introduced into the Bill.

[Michelle Donelan]

Amendments 80, 28, 45, 46 and 49 seek to set out the type of speech that the definition of academic freedom in clause 1 covers, and to ensure it includes the right of academic staff to express opinions about the curricula, governance, affiliation and the teaching and research at their provider, to design and deliver their teaching and do innovative research. Amendment 28 would also remove the limitation in the current provision that it covers only law speech that is within the person’s field of expertise, and makes other changes that I will discuss shortly.

As currently drafted, the definition of academic freedom includes the freedom to put forward new ideas and controversial or unpopular opinions. To be clear, that includes the right of academic staff to put forward opinions about any issue, including the curricula, governance, affiliation and teaching and research of their provider. It would also include the right to put forward research proposals that some might see as controversial or to pursue a range of methods when designing and delivering high-quality course material. There is therefore no need to specify in the Bill the type of opinions and speech that are covered, since all opinions and speech are covered as long as they are within the law and one’s academic field of expertise—a point I will return to in a minute. Of course, I shall consider once again the comments made in the debate.

Amendment 28 would make other changes to the definition of academic freedom. The first is the requirement that academic freedom means freedom within the law, which is a vital qualification in the Bill. Let me be clear once again that the Bill does not cover unlawful speech. The amendment would remove the qualification, but I do not see why the lawfulness of speech should not apply to academic staff as it does to anyone else on campus. Amendment 28, as well as amendment 80, would also remove the requirement that the protected speech should be within an academic’s field of expertise.

I commit to the Committee that I will take the topic away. We have heard a very compelling case from both Opposition Members and Government Members today. I want to outline why the provision is in the Bill, but I commit to taking the topic away.

[Emma Hardy]

Does the Minister commit to taking away the topic relating to amendment 28? Or was it amendment 27?

[Michelle Donelan]

Sorry; I commit to taking away the topic of field of expertise, which is covered in amendment 28, as well as amendment 80.

I will outline the reason why the topic is in the Bill in the first place. Academic staff will have extra protection under the Bill, in addition to the more general protection for freedom of speech. That is the reason that the additional protection only covers speech where an individual has expertise. For example, a maths professor should not have greater protection than a non-academic colleague or a student when they are speaking about matters unrelated to their role as an academic, but in that case the professor would still benefit from the same freedom of speech protections.

[Lloyd Russell-Moyle]

I understand exactly what the Minister is trying to say, although there is some advanced maths that could move into philosophy and so on, depending on how deep we want to go. It is about the word “expertise”. That is why I put forward the idea of academic “interest”, which is a much lower bar and means that someone just needs to demonstrate that they have had an academic interest or research in that area. Would she go away and think about the bar that the word “expertise” sets—who proves that expertise?—compared with other qualifications that might fulfil the Minister’s purpose, but give people the right to explain a broad range of academic interests?

[Michelle Donelan]

I thank the hon. Member for that helpful point. I commit to taking away that very topic.

[Emma Hardy]

I take the commitment, but it does not have a lot of detail. A commitment to do what? A commitment to rewrite those five words? A commitment to reassess whether those five words need to be in there or not? I would like a little more detail on what the Minister is committing to.

[Michelle Donelan]

I and the Government commit to taking the topic away, listening to Members from across the Committee today and their very valid points and concerns on the topic, and to look at the topic again.

On the rationale behind the topic, the Government intend the definition to be interpreted broadly, so that a maths professor who uses their mathematical or statistical skills to analyse a non-mathematical subject would be covered, for example—that references the point made by the hon. Member for Brighton, Kemptown. It would also cover situations where an academic discusses teaching generally or the governance of their department—all that is within their area of work and subject expertise.

The wording reflects Strasbourg case law, where it has been held that academic freedom is not restricted to academic or scientific research, but also extends to an academic’s freedom to freely express their opinions in the area of their research, professional expertise and competence. Our courts must take this judgment into account when considering the question of what academic freedom is.

Further on amendment 28, I will move on to the inclusion of the wording that seeks to clarify that academics should enjoy academic freedom without “unlawful interference”. That is unnecessary, because any such interference with academic freedom will by definition be unlawful, which does not need to be stated in the Bill.

Finally, amendment 28 adds “without being adversely affected” to the definition. Being placed “at risk” of adverse effect is already covered by the Bill. It would be sufficient for an academic to show that they were at risk of adverse effect. It would not be necessary to go further and show that there had actually been adverse effect. Even a threat to damage an academic’s career, for example, could be sufficient. Therefore that aspect of the amendment is not required, as the current drafting is actually wider.

Amendments 27, 57 and 58 all seek to broaden the definition by removing the requirement for speech to fall within an academic’s field of expertise—once again, we shall cover this topic. Clause 1 provides that higher education providers must take reasonably practicable steps to secure freedom of speech for their staff and members. This includes securing the academic freedom of academic staff. As I have already said, this means that academic staff will have particular extra protection, in addition to the more general protection that the Bill offers for freedom of speech. This will allow academics to bring complaints to the Office for Students or a tort claim before the courts, which will reflect the high level of importance that the courts have consistently placed on academic freedom. I have outlined our rationale behind the “field of expertise” requirement and that it should be interpreted broadly, but as I have already stated to the Committee, I will take away and consider the issues raised regarding this topic.

[John McDonnell]

I hate to raise this subject, but it was suggested that someone in any field of academic expertise would somehow be denied the ability to talk about or comment on Brexit. Can we just clarify that?

[Michelle Donelan]

This particular element of the Bill does not deny people the ability to speak on anything, because as I have already stated, academic freedom is a subset of the broader term “freedom of speech”, so they would be covered by that as well.

[Matt Western]

I heard the Minister’s point about committing to go away and discuss this issue and so on. Things are clearly moving quite fast in the reshuffle. I would like to think that she will still be in her post and perhaps will not have been promoted—perhaps she wishes to be promoted—but the essence of this is so important that I think it goes beyond the words of this Minister because in two weeks’ time we could have a very different person actually handling this particular issue.

[Michelle Donelan]

I can see what the Opposition are cleverly trying to do here to push me to go further than my words, but I am sure that the hon. Member will understand that the words that I am using today will be on the record in Hansard for ever more and for any future Ministers in my position or, indeed, me to revisit in a few weeks’ time.

Amendments 60 and 68 seek to extend the concept of academic freedom to students as well as academic staff. There are long-standing reasons why academic freedom for academic staff is considered so important and particularly worthy of protection under article 10 of the European convention on human rights. Academic freedom for academic staff is a long-standing concept that is already used in legislation—including the Higher Education and Research Act 2017—and is understood in the sector. It has also been considered in an international context. An example is the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. As is clear from that recommendation’s title, academic freedom concerns teaching personnel, not students. Strasbourg case law also confirms that, in determining whether speech has an “academic element”, it is necessary to establish whether the speaker can be considered an academic.

Accordingly, the academic freedom provisions in this Bill are relevant only to those who are academic staff. That will include those who are employees of the provider, but also those staff who do not have employee status. That could include staff who undertake teaching or research as part of an honorary appointment for which they are not paid. Similarly, it will mean that PhD students who teach undergraduates at the provider can be considered to be academic staff for that purpose. However, as I have committed to this morning, I will consider this topic once again.

A first-year undergraduate student would not be considered to have the particular protection afforded by academic freedom. But I reiterate that all those on campus, whether a student, a member of staff, members of the provider or visiting speakers, are nevertheless covered by the freedom of speech duties placed on providers. That is made very clear in the Bill. I hope that Committee members will be reassured by what I have said and understand the rationale behind maintaining that the additional layer of protection for academic freedom should be reserved for academic staff, but I will, as I said, consider this.

15:45

Amendments 47 and 48 relate to the definition of academic freedom, making specific provision regarding opportunities to move to another job or another university and career development. As regards amendment 47, proposed new section A1(8) and (9) of the 2017 Act, in clause 1 of this Bill, already set out a new duty on higher education providers to protect external applicants for academic posts. An external applicant must not be adversely affected because they have previously exercised their academic freedom

to question and test wisdom, or put forward new ideas or controversial or unpopular opinions. It must not be the case that an individual’s career journey grinds to a halt because they are seeking new opportunities at another university. Academic freedom is not enough if a person only has it within their own institution.

Equally, as regards amendment 48, proposed new section A1(7)(b) to the Higher Education and Research Act 2017 already sets out a new provision that academic freedom covers not only the risk of losing one’s job or privileges—as is currently the case under that Act— but the risk of not securing promotion or another job within one’s university. Again, academic freedom is not enough if it only prevents a person from losing their job, and does not allow them to progress their career.

[John McDonnell]

I apologise to the Minister for interfering again. I want to be absolutely clear about these amendments, though, because at the moment, I am not. She has dealt with amendment 45; could she make it absolutely clear that, even if she will not accept the amendment to include “innovative research” on the face of the Bill, the Bill does encompass protections for innovative research?

With regard to amendment 46, the Minister has made no reference to the protections against Government interference in academic work. Again, it would be helpful to get assurance about that, and if we cannot get that assurance I would urge my hon. Friends to press amendment 49 to a vote, which is about protections enabling members of staff, academics and others to criticise their own institution.

[Michelle Donelan]

Academic freedom would indeed cover academics’ own research; the research of students would be covered by the broader freedom of speech. If it were the Government interfering with an academic’s freedom of teaching or research, that would be covered in just the same way as if it were the institution interfering. I hope that reassures the right hon. Member.

I understand the concerns that have been raised today, and I assure Members that it is not our intention to unnecessarily limit the right of academic freedom. I therefore will, as I have already stated, commit to exploring this issue, particularly as regards the field of expertise.

[Sir John Hayes]

I have heard what the Minister has said. I am not entirely satisfied, although I appreciate her point about taking this issue away and looking at it again. There is a debate to be had about how explicit legislation should be, and there is a case to be made—and the Minister has made it well—that much of what we are asking for is implicit: that freedom of speech is a sufficiently broad term to allow those who will have the power to oversee these matters, particularly the new regulator, to take into account many of the points that have been made by Members of this Committee. However, I am inclined to the view that we do need to be more explicit in respect of academic freedom, and I am mindful of what the witnesses have told us and Members from both sides of the Chamber have reinforced: that, if there is indeed a climate of fear and a culture of silence given expression by self-censorship, as we heard from Professor Goodwin, Dr Ahmed and others, we need to be crystal clear about the protections that the Bill will afford.

Nevertheless, mindful of the integrity of the Minister and her assurances, I hope she will look at this issue again, and on that basis I am happy to withdraw the amendment that stands in my name in order to facilitate our progress. In doing so, let me just say that I also welcome her assurance about the amendment in the name of my hon. Friend the Member for Congleton in respect of fields of expertise. I do think that “areas of interest”, or some such similar phrase, might be more appropriate, and would deal with some of the points that have been raised by Members. Furthermore—the right hon. Member for Hayes and Harlington knows I have form on this subject—I am very happy to support his remarks about the need to protect employees’ interests from employers. My views on that are just as deeply held as his, as he knows from previous exchanges that we have enjoyed. It is important to take that away and think of it afresh, as the Minister has suggested she will. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 46, in clause 1, page 2, line 14, at end insert—

“(c) to freely pursue chosen topics for teaching and research without government or institutional interference, and

(d) to express their opinions in relation to higher education providers, including that at which they are employed,”.—(Matt Western.)

This amendment would expand the definition of academic freedom to encompass an academic’s ability to freely pursue chosen topics for teaching and research, free from external interference, and express an opinion in relation to a higher education provider.

Question put, That the amendment be made.

Division 5

Ayes: 6

Noes: 10

Amendment proposed: 48, in clause 1, page 2, line 20, at end insert—

“(c) the denial of a just and open path for career development, including fair procedures for appointment” .—(Matt Western.)

This amendment seeks to expand the ways in which an academic cannot be adversely affected due to an exercise of their academic freedom to include the denial of a just and open path for career development

Question put, That the amendment be made.

Division 6

Ayes: 6

Noes: 10

[Charlotte Nichols]

I beg to move amendment 32, in clause 1, page 2, line 20, at end insert—

“(7A) 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 provider or to any students of the provider.”

This amendment ensures that the objective of securing freedom of speech within the law does not cover those who make statements that amount to a denial of genocide.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 69, in clause 1, page 2, line 36, at end insert—

““denial of genocide” means the malicious condoning, denying or trivialising of an act of genocide;

“genocide” has the meaning set out in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.”

This amendment defines genocide denial against Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide Amendment 54.

Amendment 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.”

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.

Amendment 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.”

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.

[Charlotte Nichols]

It is an honour to serve under your chairmanship, Mrs Cummins. The amendment would make it clear and explicit in the Bill that the legal protections afforded to academics for their freedom of speech would not cover denial of the holocaust or other genocides recognised by the UK Government, namely the subsequent genocides in Rwanda, Darfur, Cambodia and Bosnia.

As I have previously explained, I feel that my concern is justified by the Minister’s comments on the radio about how holocaust denial constitutes lawful free speech, however objectionable everyone in this room would find it. There was a swift back-pedalling on that, with the newly sacked right hon. Member for South Staffordshire (Gavin Williamson) saying in the Chamber that freedom of speech would not protect holocaust deniers. However, I am not sure that assurances will be enough, and that is why it needs to be explicit.

One of the witnesses who came before the Committee, Professor Goodwin, stated that he would invite a speaker to address his students

“from the British National party or the National Front”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q187.]

Mr Griffin has a degree from the University of Cambridge, so he could potentially argue that he would be covered by academic freedom when promoting his views. Clearly, this is not an extreme hypothetical; this is someone who has been invited to address a number of universities, including my own, the University of Liverpool. He has also addressed the Cambridge Union society, taking part in a panel debate with Abu Hamza. When we consider the academic rigour of courses and the benefit of what students are being taught, I am not sure that any of us could argue that there was academic rigour in a debate between an Islamic fundamentalist and an out-and-out renowned Nazi. Mr Griffin has engaged in holocaust denial on a number of occasions, including at the trial for his 1998 public order offence, where he said:

“I am well aware that the orthodox opinion is that six million Jews were gassed and cremated and turned into lampshades. Orthodox opinion also once held that the world is flat.”

Over the course of our debates on the Bill, we have heard a lot about the need to challenge certain orthodoxies: that such debate is healthy in an academic setting and improves academic rigour, allows students to develop their critical thinking and debating skills, and so on. However, there must be a limit. Professor Goodwin made it clear that, if the Bill were enacted, he could invite someone such as Nick Griffin on to his campus. That is why it needs to be explicit in the Bill that, if he were to do so and his university provider tried to cancel the event, that is not something for which Mr Griffin would be able to seek damages against the university.

15:59

[Emma Hardy]

My hon. Friend is making an absolutely excellent speech. To pre-empt what the Minister will say—“Well, everything is allowed unless it’s unlawful”—I refer back to the evidence given to us by Sunder Katwala, who said:

“Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 101, Q209.]

So having a definition of allowing speech unless it is unlawful is not enough to stop holocaust denialists coming and speaking at universities.

[Charlotte Nichols]

I thank my hon. Friend for that really important contribution. As we have heard from a number of witnesses, holocaust denial—as I said, I am sure that everyone present finds it objectionable—is, in fact, lawful free speech that could be protected under the regulations currently in the Bill, unless we ensure that the limitations of free speech and academic freedom are spelled out explicitly on the face of the Bill.

As we have talked about a lot over the past couple of days, it is really important that speakers, academics and students have academic freedom. Clearly, other pieces of legislation that are in place—not least libel law, the limits that are set out in the Prevent duties that universities have to abide by, and the limits set out in the Equality Act 2010—must be read alongside the Bill, but none of those is sufficient to prevent holocaust denial. I am particularly keen to expand the definition of holocaust denial to genocide denial. Just as we not only commemorate the Nazi holocaust of Jews, disabled people, Roma and Sinti, LGBT people, trade unionists and other minority groups within Europe on Holocaust Memorial Day every year, we also commemorate the subsequent genocides in Rwanda, Darfur, Cambodia and Bosnia.

We have spoken about universities trying to appeal not only to a market within the UK, but to a global market. If there are no limitations on free speech, what message would it send to students from places such as Rwanda, Darfur, Cambodia and Bosnia? What would it say to students from Germany, where they have much more robust laws in place to ensure that holocaust denial and denial of other genocides—which is of course a disgusting desecration of all those who lost their lives and who suffered in those genocides—is not perpetuated within higher education institutions? The duty of care that institutions have towards their students is incredibly important, and it is something that we need to ensure is not lost as a result of the unforeseen consequences of passing a Bill that does not have the limitations that I have set out in amendment 32. The following amendments, which are in the name of my hon. Friend the Member for Warwick and Leamington, clarify some of the technical points throughout the Bill to ensure that amendment 32 can stand.

I think that any right-minded person would want to ensure that protections are in place. It is something in which there is a clear public interest, because it is objectionable that universities might have to spend money to fight legal cases against genocide deniers who demand a right to a platform on their campuses. There is also a really important public order point, because when people from the far right are invited to speak on university campuses, there is often, naturally, a reaction from the student body, who protest their presence. Nick Griffin turning up on various campuses over the years has meant skirmishes. Sometimes, such people bring along heavies with them, who will cause problems, start fights with students and make students on that campus fundamentally less safe while they are there. Of course, they are there to radicalise people and bring them round to their far-right cause. They are there to recruit, so the idea that it is an academic exercise is for the birds—these are people coming on to campuses to radicalise young people.

We expect a vote shortly and we want to discuss a lot of other things, but I want to ensure that the amendment is given proper consideration and that those safeguards are put in the Bill to make sure that the well-meaning, I am sure, assurances of the Government do not turn out to be meaningless in effect.

[Matt Western]

Briefly, I thank my hon. Friend for her clear and considered speech in support of the amendments, some of which are in my name, given that we were not entirely sure how they would fall over the four days of the Committee.

In the evidence sessions and on Second Reading, we heard just how concerned people are. My hon. Friend the Member for Kingston upon Hull West and Hessle mentioned the evidence given by Sunder Katwala, but I am think too of the moving comments by my hon. Friend the Member for Leeds North West (Alex Sobel) about his experience at Leeds University and the prospect of having the likes of David Irving or Nick Griffin coming on to campus to speak. I will also just pick up on the point made by Professor Whittle:

“If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 39, Q73.]

The amendment seeks to draw a line under the question, what constitutes reprehensible but lawful speech that is inimical to academic freedom? I cannot see any academic benefit to denying any genocide, and it would do great harm to an academic were such views espoused on campus, as well as to the wider academy, let alone damaging student welfare.

[Michelle Donelan]

Amendments 32 to 34 and 69, taken together, seek to exempt providers and student unions from the duty to secure freedom of speech of persons who speak or intend to speak to deny genocide. The Government, however, are clear that genocide denial, including denial of the holocaust, is abhorrent and morally reprehensible. The new director will produce extensive guidance to assist universities, further to the points made by hon. Members. That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights. As such speech is intolerable in a democratic society, and that holocaust denial, even if dressed up as impartial historical research, must be seen—

[Emma Hardy]

I refer the Minister to the evidence given by Sunder Katwala:

“Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 102, Q209.]

He complimented—if that is the right word—the Government on trying to get universities to adopt the International Holocaust Remembrance Alliance definition; likewise, we support that. However, that is still a “lawful position”. What this amendment would do is to make that, even though it is within the law to hold those opinions, we do not want them in our universities.

[Michelle Donelan]

If the hon. Member will forgive me, I will carry on and respond to her point regarding the balancing act that universities will perform.

Holocaust deniers often have clear links with neo-Nazi extremism, and with antisemitic violence and intimidation. As I said on the Floor of the House, the Government are clear that there is no place in our universities for an extremist view that is a complete work of fiction and one that grotesquely seeks to misrepresent our global history.

Let me once again be clear that nothing in the Bill encourages providers or student unions to invite speakers who have denied or deny genocide. The Bill will not give anyone the right to a platform, and on that I am categorical.

[Charlotte Nichols]

As we have heard about the broad range of individuals and organisations covered by the Bill, any student society that sought to invite a holocaust denier or genocide denier on to campus could technically have protection under the Bill as drafted. For example, if a free speech society wishes to test the absolute limits of what its university would tolerate regarding free speech and decided, as the Oxford Union did, to invite Abu Hamza and Nick Griffin along, I think it would be irresponsible of the university to allow such events to go ahead. There is nothing to say that the university has to invite them, but clearly there is nothing to say that a society or the students union could not invite them, or what would that mean for the university if it chose to intervene accordingly.

[Michelle Donelan]

Two points are being made. One is about the right to a platform, whereby an individual can, in essence, demand to speak at a university. In no way does the Bill give anyone the right to a platform.

The second point that the hon. Member is referring to is if an individual is invited by a society, a union or a university itself. With regard to that, freedom of speech is not an absolute right; it does not include the right to harass others, or incite people to violence or terrorism. The Bill requires reasonably practicable steps to be taken to secure freedom of speech within the law. That is the crucial point. The Bill is not about unlawful speech.

[Lloyd Russell-Moyle]

But the Bill does require student unions to allow students to set up societies regardless of their viewpoints; such societies must be able to be registered and cannot be denied. There could be a group of three students—three deluded, holocaust-denying students—and the student union would not be able to deny them an affiliation, according to the Bill, and they would be given a right to speak in the student union. I am just trying to be clear, especially because of the tort element. That is the particular problem here, because that is not in regard to the Office for Students; it is separate to the courts. If there is not a protection here in the Bill, can the Minister give assurances that no group of three students can take a student union to court for tort, for being denied a room to preach genocide denial?

[Michelle Donelan]

The hon. Member is absolutely incorrect, because universities and student unions will only have to take reasonably practicable steps to ensure that freedom of speech exists. University student unions or other bodies will also have to balance that with the Equality Act, with the public sector equality duty and with the Prevent duty, and also criminal law may apply. This is about balancing competing duties, not about giving primacy to freedom of speech, which was in fact the aim of the Opposition amendment.

Question put, That the amendment be made.

Division 7

Ayes: 6

Noes: 9

Amendment proposed: 69, in clause 1, page 2, line 36, at end insert—

“‘genocide’ has the meaning set out in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.”—(Charlotte Nichols.)

This amendment defines genocide denial against Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide Amendment 54.

Question put, That the amendment be made.

Division 8

Ayes: 6

Noes: 9

[The Chair]

I invite Members who have not already done so in this session to declare their interests for the record.

[Sir John Hayes]

I draw the attention of the Committee and others to my entry in the Register of Members’ Interests, which cites my professional connection to the University of Bolton, where I am a professor.

[John McDonnell]

I register my interest as an honorary fellow of Birkbeck College, and my wife is a tutor at University College London.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

Similarly, I am an honorary fellow of Birkbeck.

[Lloyd Russell-Moyle]

I have a professional connection with the University of Sussex and the University and College Union, and I am a trustee of the University of Bradford union.

[Matt Western]

I wish to register that my wife works at a particular higher education provider.

[Emma Hardy]

Again, my partner works at the University of Hull’s degree apprenticeship course.

Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)

16:18

Adjourned till tomorrow at half-past Eleven o’clock.

Written evidence reported to the House

HEFSB20 Office of the Independent Adjudicator for Higher Education

HEFSB21 Professor Dennis Hayes, Director, Academics For Academic Freedom

HEFSB22 Dr David Merry, a research fellow at the university of Nottingham

Elections Bill (Second sitting)

Committee stage
Wednesday 15th September 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Sir Edward Leigh, †Christina Rees

† Anderson, Fleur (Putney) (Lab)

Bell, Aaron (Newcastle-under-Lyme) (Con)

† Bristow, Paul (Peterborough) (Con)

† Clarkson, Chris (Heywood and Middleton) (Con)

Furniss, Gill (Sheffield, Brightside and Hillsborough) (Lab)

† Gibson, Peter (Darlington) (Con)

† Grady, Patrick (Glasgow North) (SNP)

† Hollern, Kate (Blackburn) (Lab)

† Hunt, Jane (Loughborough) (Con)

† Mayhew, Jerome (Broadland) (Con)

† O’Hara, Brendan (Argyll and Bute) (SNP)

† Randall, Tom (Gedling) (Con)

† Rutley, David (Lord Commissioner of Her Majesty's Treasury)

† Shelbrooke, Alec (Elmet and Rothwell) (Con)

† Smith, Cat (Lancaster and Fleetwood) (Lab)

† Smith, Chloe (Minister for the Constitution and Devolution)

† Smith, Nick (Blaenau Gwent) (Lab)

Adam Mellows-Facer, Chris Stanton, Committee Clerks

† attended the Committee

Witnesses

Professor David Howarth, Professor of Law and Public Policy, University of Cambridge, and former Electoral Commissioner

Fraser Campbell, Blackstone Chambers

Virginia McVea, Chief Electoral Officer, the Electoral Office of Northern Ireland

Ailsa Irvine, Director of Electoral Administration and Guidance, The Electoral Commission

Peter Stanyon, Chief Executive, Association of Electoral Administrators

Louise Round, spokesperson for Elections and Democratic Renewal, SOLACE

Rob Connelly, Returning Officer, Birmingham City Council

Dr Kate Dommett, Department of Politics and International Relations, University of Sheffield

Professor Justin Fisher, Director of Public Policy, Brunel University London

Darren Grimes, political commentator

Public Bill Committee

Wednesday 15 September 2021

(Afternoon)

[Christina Rees in the Chair]

Elections Bill

Examination of Witnesses

Professor David Howarth and Fraser Campbell gave evidence.

14:00

[The Chair]

Q46 I remind Members about the public health guidance and that electronic devices should be switched to silent. We will now hear oral evidence from Fraser Campbell of Blackstone Chambers and Professor David Howarth, Professor of Law and Public Policy at the University of Cambridge. Fraser Campbell is appearing in person and Professor Howarth will be on Zoom. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion agreed by the Committee. For this session, we only have until 2.30 pm. Please will the witnesses introduce themselves for the record?

Fraser Campbell: Fraser Campbell, barrister at Blackstone Chambers.

Professor Howarth: I am David Howarth, Professor of Law and Public Policy at the University of Cambridge. I was an electoral commissioner until 2018; before that I was a Member of the House of Commons, and before that I was the leader of a council.

[The Chair]

Thank you. Minister, would you like to ask the first question?

[The Minister for the Constitution and Devolution (Chloe Smith)]

Q As this is such a short session, I will ask one question each of our two witnesses. Mr Campbell, it is nice to see you here today; thank you for giving up your time. The Government’s call for evidence on the accessibility of elections showed that one of the main barriers to voting can be the definition of “companion” in legislation. Do you agree that the expansion of the definition of who can act as a companion will be of benefit and will support more elderly voters and voters with a disability in being able to vote in person?

Fraser Campbell: Yes, absolutely. Anything that can be done to make voting easier is to be encouraged. That is why, I suspect, more Members will have questions about some of the provisions that make voting more difficult, but I will not get on to that until I am asked.

[Chloe Smith]

Q Moving on to Mr Howarth—David, if I may—you have been a Member of Parliament, so welcome back; it is nice to see you today. You are a former Liberal Democrat Member, and it is great to have your particular intersection of experience. Knowing Parliament as you do, and knowing how, at its best, it can be a place for scrutiny, debate, insight and experience, do you think it is a positive addition to the accountability and governance of the Electoral Commission that we have a greater role for Parliament coming in? Or do you think that the work of the electoral commissioners and the Speaker’s Committee on the Electoral Commission as it currently stands is sufficient?

Professor Howarth: First, may I say that it is good to be back? It is just my luck to be giving evidence during a reshuffle. All I can say is, “Chloe, good luck,” and I will understand it if you will be glancing at your phone.

The accountability of the Electoral Commission is twofold. First, there is accountability to the Speaker’s Committee. That is useful, but it is limited, and should be limited, to the use of resources; it is related to the estimate under which the commission is funded. Secondly, on individual decisions the commission is accountable to the courts. That is to say, if it issues a fine or some sort of order against an individual or a party, those organisations or people can appeal to the courts. I think this afternoon you will hear from someone who successfully appealed a fine that had been imposed by the commission. It might have been helpful to hear from people who have been fined and failed in their appeal, or chose not to appeal.

There are two lines of accountability, and I think the danger in the Bill is getting them mixed up. The line of accountability to the courts should not interfere with Parliament, and the line of accountability to Parliament should not interfere with the courts. Secondly, what the Bill actually does is make the commission accountable to Parliament in terms of direction or guidance issued by a Minister, and then obviously agreed to on the nod in the usual way of statutory instruments by the Commons, and they would not trouble the Lords. Nevertheless, that is not accountability to Parliament; that is accountability to the Government—

[The Chair]

May I interrupt? Professor Howarth, we are having trouble hearing you. Could you turn your microphone up, please?

[Chloe Smith]

I am really sorry, Ms Rees. I could hardly hear any of that answer.

Fraser Campbell: I wonder whether I may say a word on the Minister’s question. My view on parliamentary accountability is that of course it is very important. It has to be balanced against the independence, and the perceived independence, of the commission. To the extent that the Bill wishes to introduce scope for the commission to be given a statement of principles and objectives, I think the question arises whether that will be useful and, if it is, to whom.

Based on the Minister’s statement from 17 June this year, which talked about the content that that statement might have, there was an indication that it may lay down principles for the Electoral Commission in terms of impartiality, accountability, value for money, proportionality and consistency. I wonder how useful that would be, because the Electoral Commission, whatever one thinks of its performance, presumably does not think at the moment that it is proper for it to provide poor value for money or be partial, unaccountable, disproportionate or inconsistent.

The question arises, to make a difference, what difference it will make. My concern—Professor Howarth has expressed this in the press—is that there is a danger of an arm’s-length independent body being pressured by the majority in the House of Commons, and the party of Government, to prioritise things that may be perceived to benefit that party and to deprioritise other things, or even to seek to intervene and give guidance on individual cases. If that were done, there would be the potential for very real damage to the perceived independence of the commission and a sense of people who are elected—by definition, the victors of elections—to some extent regulating themselves. I think that would be the intention with the overall aim of the long-established Electoral Commission.

[The Chair]

Thank you. Professor Howarth, could you try repeating your answer to see whether we can hear you?

Professor Howarth: I will try. Can you hear me now?

[The Chair]

Yes, that is much better.

Professor Howarth: I started by wishing Chloe good luck in the reshuffle. The accountability of the Electoral Commission, as Fraser just said, is an important matter, but the commission on individual matters is accountable to the courts, not to Parliament. There is an appeal process. I think there is a witness later this afternoon who appealed successfully against a commission judgment. There are many others who have failed in their appeal or withdrawn it.

It is important not to mix up the legal accountability of the commission to the courts with the accountability to the Speaker’s Committee, which is basically to do with its financial responsibility. The commission operates under an estimate that does not go through the Government. The accountability on the spending side is to the Speaker’s Committee. Where the Bill goes wrong, I think, is in mixing those two things up and subjecting the commission to policy guidance by the Government. The accountability that has been proposed to Parliament is on the basis of the Government’s guidance to the commission and then to Parliament. That reduces the autonomy not just of the commission but of Parliament in holding the commission to account on what it wants to hold it to account on, not what the Government tell it to.

[Chloe Smith]

Q I have one follow-up question, on your time as an electoral commissioner, which as we all know is very different from the election commissioner role, on which we heard from Richard Mawrey earlier today. From your time in that role, David, could you give us examples of when you think there was effective governance and ineffective governance between the commission’s proposals or plans and the SCEC?

Professor Howarth: On the whole, every year there is a useful discussion between the Speaker’s Committee and the leadership of the commission on budgetary matters—issues to do with how much money would be suitable for a particular year. I should really add in parentheses that that will be far more difficult if and when the Fixed Term Parliaments Act 2011 is withdrawn, because it will not be clear whether there will be a general election in any particular year. There is a balance between the ongoing expenditure of the committee on base and the exceptional expenditure that comes about because of the number of electoral events in the year. Over the years, the fact that there were two parts of the budget has been cleared up between the committee and the commission. I think that operates well. It was starting to operate not well by the end. I think that is an example of both.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

Q My question for both witnesses is about the accountability of the Electoral Commission and the part of the legislation we are looking at on that issue. It is a balance between parliamentary accountability for the commission but also independence of the commission to be able to do its job. As it stands, the Speaker’s Committee on the Electoral Commission has an in-built Government majority, with five Members from the governing party and three Opposition MPs—I declare an interest as a member of that committee. Do you feel that is effective and what do you think will be the impact of adding another Government MP to that committee? Do you think the Electoral Commission is currently suitably held to account by Parliamentarians?

Professor Howarth: Perhaps I should answer that more than Fraser. I do not think there should be any circumstances in which there is a Government majority on the Speaker’s Committee. It was set up not to have that, but the balance in the House that determines which party gets which Chair of which Select Committee has an effect. I think the legislation has to be adjusted to ensure that the definition of who is on the Speaker’s Committee is not affected by those sorts of changes. The whole idea is for there to be consensus on electoral matters across the parties. That is the main objection to having ministerial guidance in the first place—a Minister from any particular party might be seen to say something in the interest of the party. Similarly, the Speaker’s Committee should never have a single-party majority. The legislation should make that clear.

Fraser Campbell: I agree with what Professor Howarth says about majorities on the committee. Members have to bear in mind the distinction between accountability and direction. It is one thing for the Electoral Commission to be accountable to Parliament, through the Speaker’s Committee and potentially through other mechanisms, in terms of explaining itself and being questioned about decisions it has made or its performance. It is another thing for it to be directed to do particular things.

That is the concern that arises in terms of the statement of principles. One example of that is that it envisages the ministerial statement and directing priorities. One can easily think of examples where it might be quite improper for particular priorities to be set; for example, if there was a hypothetical party that drew disproportionate amounts of support from older people as opposed to students. One can imagine why that hypothetical party might wish to make it a priority for the Electoral Commission to assist in increasing turnout among the elderly, and on whatever grounds it came up with, deprioritise facilitating students living in multiple households to register to vote. If that was a direction given to the commission, that would not really be accountability at all but interference. It would be much better for the commission to be allowed to get on with what are very well established and understood statutory objectives, and for Parliament through whatever means to hold it to account on its performance.

[Brendan O’Hara (Argyll and Bute) (SNP)]

Q My question is in two parts. On the plan to give Ministers more control of the Electoral Commission, David, were these plans ever discussed or floated when you were a commissioner between 2008 and 2018? To both of you, why do you think they have now appeared in the Bill?

Professor Howarth: To answer the first question, this would have been unthinkable in my time as an electoral commissioner, and also that was during a time when there had been a Conservative Prime Minister for the whole time. I do not think anyone would have ever imagined this was a good idea. It is an open goal for the opponents of western democracy. If you are President Xi, you might think this is the kind of thing you want—all the institutions of the state lined up behind the governing party—but not in this country. It is completely unthinkable.

As to where it has come from, it is beyond my time in office. All I can say is it looks as if it has arisen out of certain resentments in certain quarters about decisions the commission has made that people disagree with, and the Government must have been scrambling around for ways of satisfying that desire for revenge and come up with possibly the mildest version they can think of, but even this version is outrageous.

Fraser Campbell: I would not wish to make a window into the Minister’s soul, but I think all Members on all sides would want to bear in mind that if they are in Government, they will one day be out of Government, and one would not want to have a position where whatever party happens to be in Government is able to take advantage of an opportunity to influence or exert pressure on the commission while the sun is shining, only to see the boot on the other foot when they are out of power.

One sees this, for example, in the United States where it is very nice for the governing party to be able to nominate justices to the Supreme Court, but it feels much less promising when they happen to be out of power. In my position, it is much better to have a properly independent process, which we have in the courts here. We do not have the same business of political nomination of judges. We would lose something of value were we to have, in any sense, a politicised, oscillating Electoral Commission, whose priorities change depending on who is setting the direction from time to time. That would not be in the long-term interests of any party.

[Fleur Anderson (Putney) (Lab)]

Q The Bill seeks to address the integrity of elections. Would you say this is the biggest problem we face in our elections currently? Are there any other concerns you think the Bill should address or any other proposals or measures you think should be included? Do you have any other concerns about the Bill that you have not been able to address?

Fraser Campbell: Shall I go first this time? I am grateful it is a broad invitation. I think the integrity of elections is not an overwhelming concern in UK electoral law. There have been pockets of extremely bad practice that have been exposed and investigated, and have obtained a high profile, but generally the UK happily leads the world in this respect and should not be shy about that. There are problems though, which are along the themes of needing to encourage broader and freer participation, because that is the best prophylactic against domination by particular vested interests. The explanatory notes rightly draw attention to some dangers of foreign interference or interference by the very wealthy, but one of the things one can do to discourage or balance that out is to have as broad a plurality of participation as possible.

It worries me that certain provisions of the Bill are potentially apt to have a chilling effect on participation by small parties, or those who are not parties at all but are legitimate pressure groups, charities, NGOs, trade unions and so on. An example of that is the power to be given under clause 23 to a Minister, albeit subject to the affirmative resolution procedure, to effectively proscribe the types of organisations that can become registered third parties. That is important because, if an organisation is not a registered third party it is subject to a much lower spending limit. The pre-legislative material that I have seen does not give any explanation as to why there needs to be a power to limit the types of organisation that can become registered third parties. I can see why there might need to be some sort of power to quickly expand the list, if it turns out someone is inadvertently excluded.

The only rationale I have seen for this provision, generally, is to clamp down on foreign interference. If that is the case, it does not provide any justification for Ministers to have the power to exclude numbers of categories from that list, which includes trade unions, charities, UK companies and unincorporated associations. It would be of benefit to the process if this Committee were to examine, with the Government, the rationale for that procedure.

There is a tension between that procedure and a general desire, which is expressed by some parties, to avoid lawyers being too involved in the political process. I can tell you, as a matter of simple law, that if a decision to exclude an organisation was made under such a power, it would be more susceptible to challenge by judicial review than if such a decision was made under primary legislation. As a matter of basic law, judges are naturally much less deferential to secondary legislation, because it has not gone through the rigmarole and process that we are engaged in today. It would be a jamboree for lawyers—in a selfish, personal sense I would welcome that—but it has not been explained and it could have a chilling effect. Even if the power was not actively used, people would be participating as registered third parties not knowing what the situation might be in the future. I think that would disincentivise the plurality of participation that can balance out foreign interference and other less welcome vested interests.

Professor Howarth: I agree with Fraser on clause 23; the delegated powers memorandum—[Inaudible.]

[The Chair]

Professor Howarth, if I can interrupt you, we are having trouble hearing you again.

Professor Howarth: Oh right! I thought I had fixed that.

[Chloe Smith]

Could you also lift your head up so we can lip read?

Professor Howarth: The temptation when on a computer is to bend down towards the microphone. I shall try to let you lip read.

I agree that there is a problem with clause 23. The power to add groups that can campaign as third parties is obviously justifiable. The delegated powers memorandum gives no justification for the power to remove or the power to redefine. Those are powers that could be abused.

There is also a change in clause 20 that to most people looks logical, but there needs to be a replacement provision. It is the proposal to end the possibility of parties acting as third-party campaigners. The Electoral Commission’s guidance says that is the main way in which parties can act together in electoral alliances and pacts. If clause 20 remains as it is, with no replacement provision, then parties will not really be able to operate in electoral pacts or alliances. They will be limited to £700 of expenditure if promoting a national campaign of another party. There needs to be a specific provision for pacts that is fair. Obviously, those provisions would have to apply to canvassers campaigning on common ground, but this is too restrictive.

On the question of what ought to be in the Bill, there is a massive Law Commission report on all the problems identified in electoral law, which should be part of this Bill. That report is now gathering dust, as too many Law Commission reports do.

I go back to the Constitutional Affairs Committee and Justice Committees before 2010, which came to an agreement on the crucial issue in electoral reform, which is donations. Should there be a cap on donations? We got a Committee to agree on a very high cap, but also to the principle that there ought to be a cap. If you do not have a cap on donations, the whole system is open to the accusation that it is just there for rich people to buy elections. That is the most important problem in the way we allow elections to be run. We need to get the system on to a completely different basis of small donations by ordinary people.

[Jerome Mayhew (Broadland) (Con)]

Q Professor, you asked where this idea of the statement of principles and the policy framework for the Electoral Commission has come from. I hope you were able to hear the evidence in this morning’s sitting, particularly that from Councillor Golds, who gave damning examples of where evidence of widespread fraud was taken by him and others to the Electoral Commission and, in his words, ignored.

Professor Howarth: Let me explain. The Electoral Commission does not have a role in legal contests about individual cases of electoral fraud. It has an overall supervisory role, but its regulatory powers are aimed at parties and their national campaigns. For example, on the spending returns of individuals in parliamentary elections, the commission has a power to look at them, but no power to enforce the law. That is all done by individuals and by the police.

The commission’s power has to do with the national spending limits of the national parties. If you think the commission should be doing more on that, you need to change the commission’s powers so that it can. What the Bill does instead is remove the commission’s power to instigate prosecutions, which makes the situation even worse.

[Jerome Mayhew]

Q On that point, is it not right that although the commission claims to have the power currently, it has never once brought forward a prosecution?

Professor Howarth: That is because the Government always opposed it and tried to stop it doing it.

[Jerome Mayhew]

Q Forgive me; if I may ask the question, I will not interrupt the answer. Given that you have never, ever used the power of prosecution, is it fair to claim that removing a power that has never been used is somehow an additional fetter to electoral law?

Professor Howarth: Yes, it is, because it is a power that exists that could have been used, and any proposal to use it makes the Government immediately decide to go back, on whatever grounds. One of the things you should have picked up from Richard Mawrey’s evidence this morning is that the police are not particularly interested in enforcing electoral law and think that electoral offences are not important. If they do not think it is, the CPS will not get many cases and no one will be prosecuted, unless local authorities take it up using their power under section 222 of the Local Government Act, which they might do.

[The Chair]

We have just a couple of minutes left. Perhaps Patrick Grady will ask a short question and we can have a short answer.

[Patrick Grady (Glasgow North) (SNP)]

Q Very briefly on the ministerial policy statement of direction, the Electoral Commission has a UK-wide remit. The Bill provides for devolved Ministers to be consulted, but not necessarily to consent. Do you have any views on the potential for the ministerial statement of direction to start to encroach on areas that might otherwise be regulated by the devolved institutions?

Fraser Campbell: I think there is a perfectly legitimate concern. We have seen in the Bill, for example, the voter ID provisions. In Northern Ireland, they have their own rules and have had for some time because it is a distinct situation with its own distinct concerns. Those differences are much less pronounced between Scotland and the rest of the UK, but, undoubtedly—this goes back to my earlier point—if the statement of principles is to be anything other than motherhood and apple pie, and if it gives rise to controversy, I imagine it will give rise to controversy between Westminster and the devolved legislatures. Involving the Electoral Commission in that sort of controversy—in other words, having it follow a statement of principles as an arm’s length body that it knows is itself politically controversial, not just within one Parliament but between Parliaments—would be regrettable.

Professor Howarth: The commission has come to a very good relationship with the Scottish Parliament and the Welsh Parliament over the years—

[The Chair]

Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank our witnesses on behalf of the Committee.

Examination of Witnesses

Virginia McVea, Ailsa Irvine and Peter Stanyon gave evidence.

14:30

[The Chair]

Q We will now hear oral evidence from Virginia McVea from the Electoral Office for Northern Ireland, Ailsa Irvine from the Electoral Commission and Peter Stanyon of the Association of Electoral Administrators. All the witnesses are on Zoom. Welcome. We have until 3.15 pm for this session. Would the witnesses please introduce themselves for the record?

Virginia McVea: Good afternoon, I am Virginia McVea, Northern Ireland’s chief electoral officer.

Ailsa Irvine: Good afternoon, I am Ailsa Irvine, director of electoral administration and guidance at the Electoral Commission.

Peter Stanyon: Good afternoon, I am Peter Stanyon, chief executive of the Association of Electoral Administrators.

[Cat Smith]

Q If I could begin with you, Ms McVea. Part of the Bill concerns electors showing voter identification at polling stations. That has been a requirement in Northern Ireland for some time. We know that has changed over time: initially not requiring photo ID, then much later having a requirement to show photo ID. Do you have anything that could inform the Committee’s thinking on the way in which that might be implemented in England, Scotland and Wales, and with regard to the speed, if we were to move straight to requiring quite strict photo ID? Obviously, in Northern Ireland you had a much slower transition. Could you outline any of the initial problems electors had in Northern Ireland with access to ID, and what barriers voters who did not have ID came up against?

Virginia McVea: That was obviously prior to my period in office. There are not many records in relation to that. What I can say is that there is no particular difficulty encountered in providing that photographic ID. We have around 370,000 cards and they have been available since 2003. One issue that will be encountered is the administration. Initially records show that the outsourced cost per card was over £14, and that continued. It is now provided in-house, at just over £2 a card, including postage. Part of it will be around comms and how people are able to access them.

For us, there is obviously a time taken per card. Outside election periods, we have had to extend that to a six-week turnaround. I have no record of what the turnaround period was initially in the provision of the cards, but the take-up was much higher. Probably in around 2016, we were looking at more than 20,000 cards being produced in the year. We have found that continuing to tail off.

There has not been any related difficulty in attendance at polling stations of being able to produce ID. Certainly, the data shows a change in the requirement on cards.

We do not know whether people have kept all of their cards—we know lots of cards get lost. We occasionally have visits from various nightclubs when they empty their sports bags on to the table and return the cards that have gone missing. Those need duplicates. A lot of time can be wasted in reproducing cards, but I am afraid that there are very few records that show what the initial difficulties were in engaging and in providing the ID.

[Cat Smith]

Q If I may ask Peter Stanyon to answer a question from the point of view of the electoral administrators, obviously the issuing of free voter identification cards will fall to local authorities and electoral administrators. Can you outline to the Committee some of the pressures that the people you represent in electoral offices up and down the country face on a day-to-day basis? What kind of pressures already exist? How is the requirement to produce ID cards likely to affect electoral administrators?

Peter Stanyon: The expectation is that the vast majority of those cards will need to be issued ahead of the next national electoral event—a general election, for example— when the pressures in the electoral offices are at their greatest. Late registration statistics show that the spikes in registration come towards the end. At that stage, the same people delivering the election—certainly across England and Wales—will be the ones who also have to manage the process of issuing free voter ID cards to individuals. In Scotland, it is slightly different because that tends to be done by the valuation joint boards. There is a difference in the way that is delivered north of the border.

The real pressures are that we do not know the statistics—the numbers of people coming through—and, because of the spikes in registration, we will not know that until literally the last minute. One of the concerns being expressed across the electoral community is as much about what the basic system is: what will it look like? Will it require attendance in person? Virginia mentioned posting out ID—will that be permissible in the remainder of the UK? We do not know that detail at this stage.

It will require a whole-council approach—there is no doubt about that. It will not just be the returning officer or registration officer who is involved; it will be councils, with the pressures they are already under when delivering their day-to-day services. It really comes down to trying to make sure that we do not disenfranchise—it is probably not quite the right word—individuals by simply not being able to get to them the relevant ID they require to present at the polling stations on polling day.

The other factor to take into account is how late in the day it will be permissible for an individual to apply for free voter ID from a local authority. The pilots go right up to the eve of the polls, and we have concerns about the ability to cope with what are expected to be higher numbers when interest in the election is higher because it is a UK parliamentary general election.

[The Chair]

Thank you. Would either of the other witnesses like to comment?

Virginia McVea: Just to say that the statistics that we have in 2019 show that the applications for ID cards will at least double. In Northern Ireland, where we have had nearly 20 years of ID card provision and so have decreased the number of people who might need access to a card, we are looking at around 1,500 or 1,600 applications per month during an election period. That is the information that I can provide in relation to how you might scale it up, bearing in mind that that is nearly at the end of a 20-year process of the provision of cards.

Ailsa Irvine: It is important to ensure that any scheme that is introduced is workable. The voter ID card will play a critical part in making sure that any scheme that is introduced is accessible for those who do not have one of the prescribed forms of ID. It absolutely needs to work, but it also needs to be considered in the realm of the whole administration of elections, including the other changes that the Bill brings forward, to ensure that there is capacity within local authorities to deliver effectively. There must be sufficient time for all this to be planned on an administrative level, with the software suppliers that local authorities depend on, and appropriate resourcing must be in place to support that.

[Cat Smith]

Q I have one final question for Ailsa Irvine. The Electoral Commission reports to and is funded by the Scottish Parliament and the Welsh Senedd, as well as the UK Parliament. How do you think the changes in the legislation whereby the UK Parliament can set the strategic direction will impact the way in which the commission engages with the devolved nations?

Ailsa Irvine: In general terms, we have concerns about the commission relating to the strategy and policy statement and the impact that that may have on the commission’s independence, going as it does beyond scrutiny and accountability, and potentially into providing guidance about how we carry out our functions on a day-to-day basis.

Specifically on our accountability to the Scottish Parliament and the Welsh Parliament, which is as important as our accountability to the UK Parliament, looking as we do in those three different directions, it is really important that there is consultation with those Parliaments. At the moment, the legislation focuses on consultation with Welsh Ministers and Scottish Ministers, but we are actually accountable to those legislatures through the Llywydd’s Committee and the Scottish Parliamentary Corporate Body, so it is important to be able to ensure that they are also consulted and involved in the process in an equivalent way to the Speaker’s Committee.

When those consultations take place, whether with the Speaker’s Committee or with the devolved legislatures, it is really important that we are able to see what feedback is provided on any consultation on the statement, so that—assuming that the provisions go through—when it is presented to Parliament, given that it is presented as an all-or-nothing decision, there can be absolute clarity on what those who have been consulted have fed back and on their views on the operability of the statement.

[Chloe Smith]

Q Good afternoon to our three witnesses. Thank you very much for joining us. In our various ways, we know each other well from much work done over the years, so it is good to have you with us.

I will start with a couple of questions to Virginia about the concepts of turnout, fraud patterns and confidence, each of which is important in what we are looking at, particularly for voter identification. I am sure we would all agree that turnout is not a linear trend—it can be influenced by wider political factors—but can you confirm that in the first general election after photographic identification was introduced, the 2005 election, turnout in Northern Ireland was higher than in each of England, Scotland and Wales?

Virginia McVea: I am sorry, but we do not retain those records within the Electoral Office. I can certainly provide the answer to the Committee as a follow-up.

[Chloe Smith]

Q Thank you. I apologise; I meant in no way to put you on the spot. We have a note from the House of Commons Library that contains those figures, so I just wanted to give you an opportunity to expand on them.

I will turn instead to the evidence of fraud, which is perhaps the meat of the issue in some of what we are doing on voter identification. Has photo identification been effective in stopping personation, and does it function effectively as a deterrent? In other words, does it prevent the crime from being able to take place in the first instance?

Virginia McVea: Views across Northern Ireland will not be uniform in relation to the provision of photographic identification. What I can tell you, from looking at the tendered ballots for June 2017, for example, is that 24 were issued across all of the constituencies in Northern Ireland. In 2019, there were 18. Broadly, it would be fair to say that there is a public perception that photographic ID is helpful. We all know that there is a fear of fraud. The data that I hold, and the evidence that is available to me, does not bear out any kind of systemic fraud in Northern Ireland.

We are in a position where we provide those details in relation to the tendered ballots. When our polling station reports are returned—the poll staff are able to document all kinds of things that have occurred during the day—that is not something that occurs in our reports, nor is it something we hear from our polling station inspectors, who travel around. That said, some parties will raise concerns with me, and we are always trying to provide—through data analytics on the number of people who are used as proxies, or on absent votes generally—as much evidence as we can, to be as transparent as possible, because the evidence that we have does not bear it out.

[Chloe Smith]

Q Yes, indeed. I quite understand that. Without wishing to be facetious, for the benefit of the Committee, do you agree with me that absence of evidence is not evidence of absence?

Virginia McVea: Absolutely, but our purpose is to try to inquire as far as we possibly can, so we are now able to lift that out through increased analytics opportunities. Tendered ballots are an opportunity. Feedback from polling stations, and across the board with polling station inspectors, is very helpful. Issues are raised with me; political representatives will contact me throughout polling day, for example. That is not something that is raised in every constituency in large numbers. There will tend to be higher levels of concern in certain areas among certain representatives. Either in situations where people have wanted to move on or where we have thought it necessary in relation to certain polling stations to pass information to the police, there have been no prosecutions.

[Chloe Smith]

Q Thank you so much for sharing your insights. Ailsa, the Electoral Commission’s analysis across various years—I am looking at some from December 2015—concluded that voters’ confidence that elections are well run is consistently higher in Northern Ireland than in Great Britain. Can you say a word about what you know about that from your records? Could you also please explain to the Committee why it is that for many years the Electoral Commission has advocated the introduction of voter identification in Great Britain?

Ailsa Irvine: We do see high levels of public confidence, not only in Northern Ireland but across the whole the UK. We saw that borne out in the elections that took place in May in Great Britain—there were high levels of public confidence in and satisfaction with the processes of voting and registering to vote. It is important to bear in mind that we are starting from a high base of public confidence. Having said that, we know that concerns about electoral fraud are in the mind of the public. From our public opinion survey work, we have found that two thirds of electors said that they would be more confident in the process if they were required to show a form of photo ID at the polling station. So that is relevant and a consideration for some voters.

Essentially, we recognise that, in the polling station process, no safeguards are in place to check anybody’s identity before they are issued with a ballot paper. That stands out quite strongly from other parts of the process. If you are applying to register to vote, your identity is verified beforehand, and if you are casting a postal vote, your identity is verified through that process. It does mean that there is a vulnerability in the polling station process with no check on the identity of voters—as has been found.

[Chloe Smith]

Q Thank you very much.

Peter, thank you very much for joining us. On a different topic, may I pick your brains on supporting voters with disabilities at the polling station? We have a measure in the Bill that will widen the existing law, which includes a highly specific requirement for support for voters who are blind or partially sighted, into support for any disability. What are your thoughts on that, and how would you expect your members to respond to it?

Peter Stanyon: We welcome less prescription. One of the biggest challenges presented in polling stations at the moment is the prescription brought in by the tactile voting device. It works in itself, and there is nothing wrong with it, but it is the one thing available to work with under the legislative framework. The widening of the ability to use alternative methods has to be welcomed, as long as there are base standards that the returning officer is expected to follow. That is not to remove the TVD from polling stations, but to add in additional potential mechanisms that will be of assistance to individual voters.

You may have seen the evidence I gave to PACAC last week. We are making the point that this is the sort of area in which people in the third sector with experience will be able to advise returning officers of the best solutions to allow individuals to vote independently in the polling station, whether they have visual impairment or are there as a regular voter. The key point of the whole process is to give them that ability, and if that means that they are able to use something that is suitable to them—that the returning officer is aware of and that does not break secrecy or introduce risk to the process—we would fully support that. It is about having that ability to provide the flexibility for local circumstances. That said, there does need to be a minimum base standard that any voter walking into a polling station will be able to expect, if they require that level of assistance.

[Chloe Smith]

Q Thank you, Peter; that is so helpful. Might the standard that you refer to reasonably be something that would be provided in guidance and training?

Peter Stanyon: I think so. It is the sort of thing that may come into such things as performance standards, which the commission oversees. It will come down to what sorts of things returning officers should be considering, and ensuring that staff in the polling stations are au fait with the options available to them. That will come with a number of strands to it, rather than being the very tight prescription that we have at the moment, which can fail as a result of its not being used correctly.

[Peter Gibson (Darlington) (Con)]

Q Good afternoon. My first question is to Virginia. What advice would you offer the Electoral Commission with regard to the implementation of voter ID and how to communicate it to the public, based on your experiences in Northern Ireland?

Virginia McVea: Most of the comments from Northern Ireland will have to be heavily caveated. All present will be aware that the context in which this change was brought about in Northern Ireland was very different from that in which the discussions are taking place here. That must always be borne in mind. There are some practical difficulties, which colleagues have mentioned, in terms of being ready for this. There is the initial cost. Funding was provided, as I understand it, for the Electoral Office of Northern Ireland, but the costs were considerable at a point in the early stages where, for example, the cost of card production was well over £100,000 back in 2004.

There is the cost factor, and there is also the time factor. We may have been able to reduce the cost down now to just over £2 per card, including the postage, but the time factor becomes relevant, and the fact that the photographic ID can be used for other things. People will approach us not for voting purposes, and outside election periods. For example, in January 2019 we had 517 and then 537 applications. The fact that ID cards serve other purposes for members of the public has to be borne in mind in relation to the administrative impact and the time that is taken in terms of staffing—ensuring that your process is watertight, essentially—so that there cannot be further issues in relation to fears among the public about the process itself.

There have been huge efforts in Northern Ireland to ensure that the administration works, but cost and time are big factors. We do not, unfortunately, have records. I have picked the brains of those who have gone before in relation to the difficulties experienced. The passage of time can dim some memories, but it is my understanding that it was not an easy process without its challenges and challengers. However, it is now largely accepted. It has to be borne in mind that we are talking about an almost 20-year process. We do not get conflict in polling stations or challenges in relation to the provision of ID. We do not have a lot of problems in polling stations with people bringing the wrong ID. It happens occasionally, but it is generally not a problem. The bigger teething issues will be, as Peter says, to ensure that the authorities are prepared for it, and have proper processes, sufficient funding and some expectation of the demand that is projected.

[Peter Gibson]

Q Do you record any data in respect of voters intending to vote with the incorrect ID or no ID, who are effectively turned away from the polling station?

Virginia McVea: No, we do not. As you might imagine, in terms of queues it would probably take too long. We have had those kinds of discussions. Where you will get it anecdotally is in polling station logs and review processes, post election, with polling staff and polling station inspectors. It is not a common occurrence or a particular difficulty, but you also have to bear in mind that the parties are also very familiar with this process, so there is a lot of messaging that goes out beyond my standard messages on radio and local television. Just prior to polling day, the parties themselves do all they can to make sure people do not forget. As I say, it is a long process—over 20 years.

[Peter Gibson]

Q Thank you, Virginia. Ailsa, on the evaluation of the ID trials and pilots that took place, was it your finding that the majority of voters were able to vote without any issues?

Ailsa Irvine: Yes, that was our finding. We found that the majority of people took their ID with them when they went to vote, and of those who did not, or did not have it with them initially, most returned to vote.

That said, there is a significant public awareness task when the scheme is rolled out. That cannot be overstated. Even in the pilot areas, significant activity was undertaken by the individual local authorities and the parties locally to raise awareness and make sure voters understood what to do. That is something that would need to be replicated on a national level to make sure that it is supported when ID is introduced in Great Britain as a whole.

Indeed, at the commission we are already thinking about what our role would be in supporting that public awareness to make sure there is the broad awareness among everybody who needs to bring ID with them. There are specific types of awareness beneath that. We are working very closely with partners from across the third sector to make sure those who are less likely to have the required forms of ID know what they need to do to be able to go and cast their vote.

[Peter Gibson]

Q Thank you. We have heard from a number of witnesses today that the offence of personation is not a significant problem. Could I ask you to speculate a little? Do you believe it is underreported because the victim of the crime—the person whose vote has been stolen—is unlikely to be aware of it if they are not attending the polling station themselves? Could you comment on the view expressed by Lord Pickles in his report, where he says that it is harder to take out a library book from many local authorities than to be handed a ballot paper at the polling station?

Ailsa Irvine: It is difficult to speculate. We always want to be led by the evidence, which is why we collect data from police forces across the UK, which are responsible for recording and investigating allegations of personation. We see from that that there are relatively low levels of reported electoral fraud. Virginia mentioned earlier the point about tendered ballot papers. If we were seeing lots of people turning up to vote whose name had already been marked off, we would see that coming through in high levels of tendered ballot papers being issued in polling stations, which we have not seen.

It is a challenge. I am not saying it is easy, with personation as an identity crime, for that to be followed through, but any speculation about the level of that would be difficult, and that is not something that I would want to get into. As I said earlier, there is a vulnerability in the process, which we have recognised and highlighted over a number of years, if there is not any requirement to provide any form of ID.

[Peter Gibson]

Q May I ask you one further question on that? Obviously, following an election, a marked register is available to political parties, so they are able to identify voters who regularly attend the polling station and vote, and which elections they voted in. If it were available to a fraudster who intended to carry out the offence of personation, and they were able to use the identity at the polling station of a voter who does not regularly cast their ballot, would the offence of personation in that instance be available as evidence?

Ailsa Irvine: It would be difficult to see. Obviously, access to the marked register is controlled. It is only available for inspection in certain circumstances, and the use of it is only available in certain circumstances, so it is not widely available. It would be very difficult to know in any of these instances. It would be very much dependent of the individual facts of each case.

[Peter Gibson]

Thank you.

[Jerome Mayhew]

Q Ms Irvine, if I may carry on questioning you, you are obviously aware that the Electoral Commission has recommended the use of photographic ID, and you are in very good company. We heard earlier this morning from Lord Pickles who, as you will know, produced a report three or four years ago in which he listed a number of organisations that have come out in favour of photographic ID for our election system. That list includes the Association of Electoral Administrators, SOLACE and the National Police Chiefs Council domestically, but also international recommendations from the Organisation for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights. There is a groundswell of advice coming the Government’s way to introduce photographic ID to protect our electoral system from vulnerability to fraud. Can you expound for us the impact that vulnerability has on our democracy and the way people experience it?

Ailsa Irvine: We have highlighted that vulnerability for a number of years. As I said earlier, we see high levels of public confidence in our electoral process as a whole. That said, there are a proportion of voters for whom this is a concern and who would be more confident if a requirement was introduced. There is some evidence to suggest that some people would become more confident if that was introduced.

However, the one thing we said in our evaluation of the pilot schemes was that, in introducing any scheme, as well as ensuring it has an impact on increasing security, we ensure that its introduction does not have an impact on the accessibility of the voting process and that it is workable in practice. While there is a vulnerability and it makes logical sense for it to be looked at, it must be looked at in a way that not only protects security, but continues to ensure the ability of everybody to cast their vote.

[Jerome Mayhew]

Q That is a very good point, and it brings me neatly on to Virginia McVea, if I am allowed one further question. You have a lot of experience of the practical application of photo ID in Northern Ireland; I heard your evidence a moment ago that, now it is bedded in, the run rate is about 1,500 card applications a month—is that right?

Virginia McVea: That is usually during election periods. Outside an election period—

[Jerome Mayhew]

So it peaks?

Virginia McVea: Yes.

[Jerome Mayhew]

Q That is a very good indicator for us to extrapolate from the population of Northern Ireland being 1.86 million. We will all be busy with our calculators later.

The other advice you gave was that for the overwhelming of people there is not a problem—this is not an issue in Northern Ireland voting now, albeit after 20 years. Does that suggest that effective steps have been taken in the Northern Irish political process to raise awareness sufficiently to remove the concerns that some politicians expressed last week in the general debate, that many voters would be disenfranchised because they would turn up at a polling booth and they would not have the right ID? Is that a false fear once the system is bedded down?

Virginia McVea: We would have to time-travel back to the early 2000s to get a proper feel for the electorate’s response, but if there is sufficient communication and if there is availability of the ID card, much of which will be down to the capacity of the administrators, it is something that people are now accepting of. We have challenges to the office in relation to access to absent votes and discussions around that, but we do not have discussions about photographic ID with any of the parties. Ensuring that those smart passes can be used in polling stations is helpful, so yes, there is a general acceptance.

When you are doing your sums, being mathematically challenged myself on occasion, be careful: we work to the eligible electorate, which may possibly be around 1.45 million, rather than the 1.8 million, which would make the sums even harder dealing with the small figures from Northern Ireland.

[Jerome Mayhew]

Thank you very much.

[The Chair]

I have Paul Bristow, Chris Clarkson, Nick Smith and Fleur Anderson remaining to ask questions, and we have until 3.15 pm, so can we be kind to each other? Thank you.

[Paul Bristow (Peterborough) (Con)]

Q Thank you, Ms Rees. I will only ask the one question, to Peter Stanyon. We have heard evidence today from Gillian Beasley, the chief executive of Peterborough City Council, who does a fantastic job of making sure that our elections in Peterborough are done freely and fairly. She outlined some of the things that she has undertaken in Peterborough, such as CCTV, and the professionalism of her team and her staff. We have also seen how well some of the pilots have gone with voter ID. I have every confidence in the AEA and election administrators across the country to get this right. Do you have that confidence, too?

Peter Stanyon: I would echo the words that Gillian said this morning. At the end of the day, Peterborough has some challenges, and they face up to them superbly well. Whatever is expected of administrators, they will once again step up to that mark, but we should not underestimate the challenges that are being levelled not just by voter ID, but by the other elements of the Bill that make it harder and harder—more challenging—for elections to be delivered. I do not think you will find one electoral administrator who does not want to enfranchise people, who does not want them to cast their ballots or who does not want to provide that free and fair election. That is what it is all about; it is just becoming harder and harder to do so. There are resource and training implications, but the really good practice that local authorities such as Peterborough are able to demonstrate is really helpful and is shared across the whole electoral community.

[Paul Bristow]

That is very reassuring to know. Thank you very much.

[The Chair]

I call Chris Clarkson.

[Chris Clarkson (Heywood and Middleton) (Con)]

The question that I wanted to ask has been asked.

[The Chair]

Thank you. I call Nick Smith.

[Nick Smith (Blaenau Gwent) (Lab)]

Q This question is to Ailsa Irvine of the Electoral Commission. Imprints and identification of publisher are important safeguards in our system. I have been a party agent previously, and we are well aware of the importance of fair comment and our libel laws. However, are digital imprints sufficient to improve transparency and prevent interference or misinformation, particularly from overseas?

Ailsa Irvine: Requiring digital campaign materials to include an imprint is something that we have been calling for for a number of years—it has been widely called for for a number of years—and it should go a long way towards providing voters with some information and clarity about who is paying to target them with campaign information. Given the massive boom in the number of people campaigning online, it is something that we know has concerned voters, and voters are telling us that currently they do not feel that they have confidence about where that information is coming from.

This requirement will go some way towards that, although the detailed provisions that are in the Bill at the moment will have some workability challenges around them—for example, by not requiring any unpaid campaign material from those that are unregistered to include an imprint. Although the Bill will bring more people into the category that will require them to register as a campaigner, there is still potential for unregistered campaigners to spend significant amounts of money on creating material and then disseminate it organically, and that would not be required to have an imprint. There is still a bit of a risk and a challenge around the provisions as drafted.

The inclusion of an address in the imprint is an absolutely critical factor, and that will help to demonstrate where a campaigner is based, and whether they are in the UK or otherwise. Again, if there is any activity taking place from outside the UK, although it would be transparent in these instances from the commission’s perspective, and we would have a role in regulating this in relation to non-party campaigners, our remit stops at the UK’s borders. We would not be able to go beyond that.

We have just got experience from the recent elections in Scotland where digital imprints were introduced for the first time. What we saw was that we have a community of campaigners who generally want to comply with the law. We did see good levels of compliance there, with people putting an imprint in place. When we became aware of any instances where that was not the case, we took steps to call up the campaigners to try to bring them in line with compliance. We saw that this was something that can make a real difference to voters.

[The Chair]

Virginia and Peter, would you like to add anything to that? No. I call Fleur Anderson.

[Fleur Anderson]

Q Can I ask Peter Stanyon about the practicalities of issuing a voter ID card on the day? I think we all know of local elections where it is literally a handful of votes—I was involved in one ward where there were five votes between three candidates—so we know that it is really important that every single person who is eligible to vote can vote on the day. I think Virginia said that there is a six-week waiting list for ID cards in Northern Ireland. Can that be compressed to the day? What, practically, will happen when people turn up and they have just not got around to it? As you have all talked about, we saw that spike just before the elections, as with the pilot when ID cards were only issued up to the eve of the poll, rather than on the day. Will it be practical to get ID cards out to everyone on the day, so that everyone who can vote is able to do so?

Peter Stanyon: It is almost an impossible question, because you will not know the level of expectation until the day. If it was one person coming into the office to be issued with a card, then yes, that could be done. However, if it was 1,500 people on the day, then that is a different ball game. The reality is that if there were provisions to allow that on the day, we would need to know that very early in advance. We would need to get the structures in place and accept that there would be a cost. Resourcing would have to run almost independently of the election, because the election takes over the day itself.

Going back to my earlier comment, we all want to make sure that everybody is able to cast their ballot when entitled to do so, and to make that as easy as possible. However, even within the current electoral timetable, there are deadlines throughout the day: 5 o’clock for lost or undelivered postal votes; 9 o’clock on the day for changes to the registers. It is not right up to the last minute—there are already accepted deadlines.

Whether it is possible would depend on what is expected, which mechanisms are in place and the expectations on the individuals. Do they need to come to the office? Is it done on a regional basis? Whatever the resources, if that were the system, we would have to make sure that it was financed, resourced and actually deliverable, so that we do not have No. 15 through the door being turned down simply because they could not process that card at that time.

Virginia McVea: Could I clarify the timeline for the Committee?

[Fleur Anderson]

Please do.

Virginia McVea: The six-week turnaround period is what we use administratively outside of an election period. We do not have any complaints in relation to ID cards not being turned around within election periods, but that is only the case because of the significantly increased resources which ensure the cards are turned around very rapidly.

[Fleur Anderson]

Q How many additional staff do you have?

Virginia McVea: During an election period, we could have around 70 additional staff. We have a core staff of 30. So you can see why, when there is no electoral purpose, we need that six-week turnaround. Most cards do not take that long, but we give ourselves that space. In an emergency, such as the death of a loved one, when someone needs to travel and has no other photographic ID, we will turn the card around in 24 hours. The standard is to allow ourselves six weeks, and it is the significant scaling-up of staff during electoral periods that allows us to turn around the ID cards so quickly.

[Patrick Grady]

Q This issue came up in an earlier question by one of our Labour colleagues, but I would like to ask Virginia to say a little more about the practical process of applying for the electoral ID card in Northern Ireland, and in particular what identification is needed to be issued with the voter ID card.

Virginia McVea: Many of the applications are done in person. We do ID clinics, where we take an image of the individual, and then they fill out an application form so that we can verify their data across the data sets in Northern Ireland. We work using date of birth, national insurance number and so on.

[Patrick Grady]

Q So you do not need a photo ID in order to get your photo ID?

Virginia McVea: You do not need a photo ID, no. We have so many situations—this will happen to any administrator—where people use this ID for other purposes, such as accessing banking facilities and travel, because they simply do not have another form of photographic ID. Administrators have to be ready for that as well.

[The Chair]

If there are no further questions from Members, I thank the witnesses for their evidence. We will move on to the next panel.

Examination of Witnesses

Louise Round and Rob Connelly gave evidence.

15:15

[The Chair]

Q We will now hear oral evidence from Louise Round of SOLACE and Rob Connelly from Birmingham City Council. We have until 4 pm, so would the witnesses please introduce themselves for the record?

Louise Round: Good afternoon, everybody. My name is Louise Round, and I am the spokesperson for the Society of Local Authority Chief Executives, which speaks on behalf of returning officers. I am also the chief legal officer for Merton London Borough Council.

Rob Connelly: I am Rob Connelly. Thank you for inviting me. I am the returning officer for Birmingham City Council, and through my background as a lawyer I have dealt with Birmingham’s election challenges and petitions since 2004—hence the reason I ended up as the returning officer.

[The Chair]

Minister, would you like to ask the first question?

[Chloe Smith]

Q I am happy to go first. Good afternoon and welcome to both our witnesses. It is great to have you with us; thank you for giving up your time in all the ways that you do, including a sliver of that this afternoon.

Rob, if I may start with you, this question goes on from the conversation we have just been having, which I think you were listening to, about the ins and outs of voter identification. As you mentioned in your introduction, regrettably in Birmingham there is that history of having had a major fraud event. I am interested, first, in your reflections on leading a council out of and onwards from that, because it cannot have been easy to do that, and how you might go about trying to give confidence to the city’s citizens that they can trust in their elections.

If you need a moment to draw your breath, I will give you my second question as well, which is to invite you to provide some insights into the work you have been doing with other leaders of councils to look at what might be needed to implement voter identification—for example, training of polling staff, particular support that might be needed at polling stations and the many detailed questions that I know you have begun to give thought to.

Rob Connelly: I will take the first question to start off. As you say, Birmingham hit a low in 2004 with the various fraud cases that were going on, which resulted in a number of election results being set aside. I joined the elections office in 2009 in the capacity of a deputy returning officer, but even after five years we were still struggling to move away from those issues. I think it was not until 2018, when we had our last all-out elections, that I felt we were able to put the ghost of 2004 to bed for the final time.

When I joined in 2009, the biggest issue for me was not so much fraud itself, but the perception of fraud that remained. When allegations of fraud came up, they would be investigated; we were very lucky that West Midlands police took it seriously and had their own specialist unit that helped us with that. We would obtain evidence in polling stations and, if allegations came up about personation, for example, we would challenge it by asking, “What is your evidence?”

I remember something that put it into context for me. I asked a senior politician at the time what evidence he had of personation, and his response was, “I haven’t actually got any, but I just know it goes on.” That was not very helpful for me or West Midlands police in challenging it, so we decided to be quite “aggressive” in challenging people back: “Why do you think that? The data from our polling stations, which we get from our staff at the frontline, would actually paint a very different picture. There are very few allegations in that particular area of personation.”

We would start to understand why people could not vote—maybe because they were marked as a postal voter. What happened there? Again, we have started to establish slowly over time, certainly for our elected members, that we could be trusted, and it is about restoring that integrity. I think this is part of that road trip.

[Chloe Smith]

Q As a follow-up, if my memory serves me correctly the judgment in the Birmingham case—we had Richard Mawrey with us this morning—included quite a few scorching comments that you do have to look for such things. It is not enough to look away and claim that it is not plausible that it could be taking place, and therefore never be prepared to look for such evidence. In fact, he said you would have to be ostrich-like to not want to look for the evidence and make it better, as clearly you were seeking to do.

Rob Connelly: Absolutely. We cannot rest on our laurels simply because we do not know about it—that does not mean it cannot happen. Again, it comes back to that working partnership with West Midlands police, but also with all the political parties at a local level, because we often have post-election reviews with them. I go to my oversight committee, any issues are raised with me there and then, and we will take those away. If they have concerns and if we can improve things, we will work with them to implement those changes.

[Chloe Smith]

Q Yes, indeed. You are doing that to give residents confidence. Do you get a measure of that back from residents?

Rob Connelly: I suppose the way we get that is from the number of complaints about the process and, bearing in mind our electorate, we get very few. A lot of complaints come via members or MPs. We assure them about the processes, and we can have confidence that we have done everything we are supposed to do. I think that process does take time.

We have also been subject to a couple of reviews by the Commonwealth Parliamentary Association, where they have looked at it completely afresh and picked up a couple of issues, which we then dealt with. One of the biggest issues they came up with was, as an example, people in some communities go in and huddle together in the polling booth. We picked up on that very quickly and we sorted out giving instructions to all our staff on how to deal with it. We put up extra notices in polling stations saying only one person is allowed in at a time.

I also appointed some independent observers, such as former police officers and council employees, to go around independently—I would not know where they were going—to give me a warts-and-all impression of what it was like in our polling stations. I have nearly 500, so it is very difficult for me to know the ins and outs of every single one. That is why we put in extra resources—totally independent of me. The report is done and I then share that with my political groups, so they have it uncensored and we can work together to make those improvements.

[Chloe Smith]

Q Thank you. Would you be able to turn to my second question?

Rob Connelly: When we learned about IDs potentially coming in, we set up a working group based on a number of authorities, mainly core cities. One of our concerns with the pilots was that they did not reflect a large urban area, such as Birmingham, Manchester or Liverpool. We had some very basic concerns about how it would work. I caught the tail end of the evidence of the previous session. We have the same issues: how can we do this? It has been calculated that about 2% of people have not got ID. That is the equivalent of 15,000 people in my electorate.

If they all come in during the election period, how can I make sure that no one will be disenfranchised? That is quite a big task, and that is the same across the board. We are working closely with Cabinet Office officials. We have the opportunity to put those questions to them and help them understand some of the issues we have at the coalface. That is sort of progressing. We are not just looking at voter ID. We are looking at all elements of the Bill. We have to be careful because it is not just about voter ID, but the impact of the whole Bill together and the impact that will have on administrators and our ability to deliver the election. There is an awful lot there, and it will impact us at a very particular time in the election process.

I have additional concerns from a Birmingham perspective, because potentially the first time this is introduced could be at a parliamentary election in 2024, as we will not have elections in 2023. That in itself would be a major concern for many. I do not think I am alone in that; there may well be other areas that will have that concern.

We meet monthly with the Cabinet Office. We take an element of the Bill, dissect it and feed back, and we are starting to get that information out. We have now started expanding. We have more authorities coming on board, who are very different from Birmingham and are more rural. How will they cope? We have asked the AEA and the Electoral Commission to start looking at it, so we have a joined-up look at how we can do this and give feedback to all administrators, to make sure they understand the implications and they can start planning now.

[Chloe Smith]

May I ask one more question to Louise and then I will hand on to other colleagues?

[The Chair]

Of course.

[Chloe Smith]

Q Louise, thank you so much for joining us and welcome to the Committee.

Acknowledging the breadth of what your members will be involved in, and I imagine you will be able to tell us a bit about how in many cases that spans from the registration process all the way through to delivery of polling day and much more, there is often discussion that says, “Well, let’s just get this done in our elections, let’s get that done. Let’s add a scheme here, add a scheme there.” I acknowledge that that can add up to a lot of asks on you and your teams, and those of your members.

With respect to overseas electors in this Bill, could you give us an insight into what has to be done at present to support the participation of overseas electors? What more do you think members will be doing to support a larger group of overseas electors being involved? Might you also make a comment about the number of days that you end up doing that during the election itself?

Louise Round: I would probably be right in saying that overseas electors is one of the areas that takes the most resource and the most ongoing year-round resource for most election teams. In many teams, there will be one person who is more or less dedicated to contacting overseas electors and reminding them to renew their registration. The proposal in the Bill to extend the period of time for which they can be registered without having to renew is welcome, in terms of reducing that burden.

As with all these things and a common phrase that you will hear us using, most registration events are driven by elections. We can do lots and lots of reminding, and we would, but it always tends to be the case that as soon as an election is announced, particularly a general election, suddenly people remember to renew their registration. It is a full-time, ongoing programme that takes an awful lot of time and energy.

During the run up to the election, when suddenly there is a whole load more work to do, it obviously diverts people who are also dealing with all the other many aspects of the election. The time by which people can register makes that particularly challenging, added to which you have the issue of postal votes. Naturally, the further away someone lives, the longer it takes for their postal vote to go out to them and the longer it takes to get back. There is an awful lot of trying to make sure that voters are enfranchised and have a vote, but also dealing with fall out and complaints when it gets to election day and their postal vote has not been received.

Yes, it is a huge amount of work and the proposal to extend the number of people who can be registered as overseas voters will obviously create even more work, but the idea that you can be registered for a bit longer now is welcome. I could not say how many days and I probably could not put a price on it either, but it is a lot and it will depend on how many overseas electors any particular registration officer has.

[Chloe Smith]

Q Picking up on a recent debate in Parliament, Louise, would I be right in thinking that you would not like to see the electoral timetable reduced from 25 working days?

Louise Round: I think that would make what is already a very difficult task nigh on impossible.

[Chloe Smith]

Q Thank you very much for your insight. Is there any more that you would like to say about the particular processes that will be required to support overseas electors in demonstrating their connection to the constituency they are registering in?

Louise Round: As with all these things, some of the detail will come out in secondary legislation. At the moment, it is really tricky because registers are not nationally open. If someone has to show that they have not been on a register apart from in the constituency in which the particular registration office is operating, there is no way really of registration officers checking that, so in a sense it is taken on trust. There is no way for them to check the register even of a neighbouring constituency, let alone one at the other end of the country.

The obligation to be satisfied that someone has a local connection is obviously really time consuming, and it depends how well prepared the person wishing to register is and what evidence they can adduce. At the end of the day, the registration officer has to be satisfied. There is wording in one of the clauses around whether, had they applied a long time ago, they would have at that point been able to demonstrate a local connection, which all begins to get a little existential, almost, and very theoretical. We are not trained detectives, so there is a balance, as in all registration activity, between not wanting to make the requirements so tight that no one can ever be registered and ensuring that we are not registering people who are not entitled to be registered and might be constituency hopping, as it were, to find the most convenient place to register for a particular election depending on what is going on there.

[Brendan O’Hara]

Q Thank you very much for joining us. This morning, Richard Mawrey talked about the widescale postal vote fraud in Birmingham. What have you done to tackle that? What in the Bill helps you to further tackle that wide-scale postal vote fraud, and is anything missing from the Bill that would help you were it to be added?

Rob Connelly: I am not sure that something is missing from the Bill. What always surprises me is the number of postal votes that we get handed in on the day. We are talking perhaps 3,000 to 4,000 at a parliamentary election. We also recorded, as part of what happened, how many people brought the postal votes and in what numbers, and we often asked for names and addresses. There is no legal obligation to tell us, but in case there was a follow-up we tried to address that problem.

After the problems we had in Birmingham, the law was changed to deal with some of the issues that arose. To be honest, I am not aware that we have had major wide-scale problems in Birmingham, but it is not something that we can be overly confident can never happen again; it may do. We just have to be extra vigilant. That is where the joint working comes into play.

Restricting the number of postal votes that you can bring into a polling station may help, but we need to understand in a bit more detail the reasons behind it, because one of my concerns with the Bill is that you might be restricted to bringing in two postal votes into a polling station, but what is stopping you going to another polling station in the constituency and handing in another two? I also worry that by limiting it to such a small number we are potentially disenfranchising the honest person as opposed to your determined fraudster. A bit of work could be done around that.

[Brendan O’Hara]

Q Would it be safe to say that your biggest headache would be around postal voting, and being able to police how postal votes are managed and handled?

Rob Connelly: No, because with postal voting at the moment—I always put that qualification in—we have not had any issues. This is where we work closely with political parties, because we share information on how many we are getting back by ward and by constituency, so that they can spot any potential areas. We have always had a system in place that, if we have more than six new postal applications from a particular household, that would be flagged up and we would have a closer look. We have always put in measures to raise red flags. Individual registration and having to supply, for newer registers, national insurance numbers and dates of birth is helpful. We have the IT equipment whereby we do the signature checking, which is, again, very helpful. IT has moved on a lot since 2004.

[Brendan O’Hara]

Q Finally, how widespread have you found personation at polling booths since you joined the council in the early 2000s?

Rob Connelly: It is not a major issue that has been raised with me by either electors or political parties. We did keep some stats in polling stations as part of how to restore confidence in Birmingham. We would record, when someone came in, why they could not vote—for example, it could be that they come in and their surname is already marked off on the register. We have to do a number of years of research into that, looking, checking the numbers.

The two biggest reasons are, first, it was a simple error on the part of the poll clerk—often, it was a big family and they have just put the mark against the wrong person—and, sometimes, they came in but were marked as a postal voter. Again, it was a simple case of forgetting that they had applied for a postal vote. When we got that information back, we undertook that we would look at those cases, to establish whether there was any possible personation or other types of fraud. However, as I say, we have not picked that up and it has not come through to me from any source that personation has been a major problem. We cannot say that it has never happened or does not happen, because we do not know, but I am fairly confident that if it were widespread at a local level, it would have been picked up by party activists who would report it to us and to West Midlands police.

[The Chair]

Louise, do you have anything to add to that?

Louise Round: Just to echo what Rob said: the incidents of personation in all the years that I have been doing this have been zero—at least, that we have known about. There is a question about whether the cost and extra administrative burden of voter ID is strictly speaking necessary. As Rob said, it does not mean that it does not happen; we just do not know whether it has ever happened.

[Cat Smith]

Q Louise, in your earlier remarks, you were talking about overseas electors and how administering the applications and registrations for voting takes up the most time of electoral officers. With the removal of time limits—the 15-year limit on that connection—how much more resources would you expect local authorities to have to make available to service overseas electors? Also, you said that when overseas electors registered, there was an element of having to take it on trust. Do you believe that potentially opens it up to electoral fraud by overseas voters?

Louise Round: In relation to the additional work created by removing the time limit, it is hard to say at this stage. It will depend on take-up. We do not have—or I certainly do not have—any access to any information about how many people who have moved abroad but have not been on the register might now suddenly decide that they want to be. It is a bit of a “How long is a piece of string?” question. What local authority election teams will not be in the business of is gearing up to a just-in-case position. They will have to wait and see, prudently, what extra work comes their way.

On fraud, I do not think that is so much the issue as it is that if somebody has fallen off the register, as it were, then reapplied to be an overseas elector, they cannot have been on the register in a different place from the one they are now applying to. That is the bit where we cannot necessarily check that they have not been, but it does not mean that they are not entitled to be an elector in this country: it might just be that the place they are trying to be an elector in might not strictly speaking be the place they ought to be an elector in.

[Cat Smith]

Q I have a couple of questions for Rob. In your opening remarks, you mentioned how you had managed to put the “ghost of 2004” behind you in Birmingham. Does that mean the existing legislation on the statute books has clearly been sufficient for your council to turn that around?

Rob Connelly: Sorry, I couldn’t quite hear the question. Will you repeat it, please?

[Cat Smith]

Q In your opening remarks, you said that you had moved on, in that this was no longer the problem that it was in 2004. Does that indicate that the current legislation is sufficient to combat the problems that you faced in Birmingham?

Rob Connelly: I would come back to the point that we can never rest on our laurels. There is always room for improvement. If we think something would improve the perception of the integrity of our system, I am all for it. As I said, the biggest problem for me was not about fraud itself; it was about the perception and how we dealt with that. For me, people have to have confidence in the system, otherwise how can they have confidence in their elected officials? That has always been the starting point.

That is why we have always gone over and above our statutory obligation. I know we had no alternative, but we found it beneficial. If we do more, we restore that integrity and confidence. I have read in recent reports that there is a fairly high confidence level in our electoral system at the moment, but, again, if we can improve it, we should look to do so at every opportunity.

[Cat Smith]

Q My final question is about the practicalities of a local authority running the polling stations. The legislation would require voters to show photo ID. The Minister has said in the House that there would be provision for privacy screens so that voters who wear headscarves for cultural or religious reasons can prove their identity. I think you said that you have about 500 polling stations in Birmingham.

Rob Connelly: Just under 500.

[Cat Smith]

Q Are you confident about being able to provide a female polling clerk at every one of your polling stations?

Rob Connelly: We have been talking about this as two considerations, really. We will have to start reviewing all our polling stations again to be able to have privacy screens in place, because some of them can be fairly small. We have a couple of huts, and we would have to revisit those. Again, on polling day, I probably employ around 2,500 all told, including the count, and maybe 1,600 at polling stations alone. Our ability to put a female poll clerk or member of staff in each one is something that will cause us some headaches, and we will have to revisit all our processes to make sure it happens. As it is, we struggle to recruit and retain staff, who come to the polling station literally for one day a year. They do not do it for the money; they do it because they want to part of the process—I am a very firm believer in that. That is a concern for me.

[Chris Clarkson]

Q Rob, I have just consulted the oracle that is Google by putting in “Birmingham electoral fraud”. It goes all the way back to 2005, and then there are articles from 2011. Interestingly, one from 2016 says:

“20,000 voters vanish from Birmingham’s electoral roll”.

That was around the time that individual electoral registration came in. Obviously, a lot of work has been done to combat some of that fraud already, and you should be commended for that, as yours is the largest authority in Europe. How far do you think the measures in the Bill will go towards challenging the perception of fraud, which is still there?

Secondly, you have both said that there are fairly low levels, or no levels, or personation that you know of. Do you accept that, although there is no voluminous information, it is quite an easy thing to do? By using a bit of nous or looking at a marked register, you can work out who does not normally vote, rock up and claim to be them, and vote without any challenge. Do you accept that the measure will go some way to adding extra safeguards to prevent that from happening in great numbers without detection?

Rob Connelly: The short answer is that, for ID, I think it will, yes. I do not know whether Louise has anything to add to that. It will add to that protection, and it will stop your casual fraudster from thinking, “Actually, I know they’re not here, so I’ll nip down to the polling station and act as Joe Bloggs.” It will prevent that type of scenario.

[Chris Clarkson]

Q Do you think it will give people more confidence in the electoral process?

Rob Connelly: Yes, I do.

[Chris Clarkson]

Fantastic. Louise, do you have anything to add?

Louise Round: I think it is self-evident that if people have to produce some form of ID, it minimises the risk of fraud in so far as there is any. Although confidence in elections is really high—the Electoral Commission’s report, which was published yesterday, made that clear—some people certainly raise the odd eyebrow when you explain to them that they do not have to prove who they are, so it probably would help with confidence, yes.

[Chris Clarkson]

That has been my experience, too. Thank you very much.

[Fleur Anderson]

Q Rob, I would like to go back to the practicalities and your thinking about how you would roll out voter ID. How many additional staff do you think you would need all year round for the applications that come in? We heard earlier that Northern Ireland has ID clinics. How many additional staff do you think you would need for the election period and on the day itself?

To add to that, which groups are you concerned might be disenfranchised by this measure, meaning that you would be working harder to include them? We have had representations from organisations representing older people, people with disabilities, people who are black, Asian or minority ethnic, and women fleeing domestic violence, for example. Are you concerned about those groups, and might other groups be disenfranchised?

Rob Connelly: First, in terms of staffing numbers, I do not know the honest answer to that. We are trying to figure that through. I am already very much leaning towards saying that this cannot sit with my core elections office, because it is too big. What I would worry about is that they become swamped and that they will not be able to deal with their core election job: delivering the election itself.

I was interested when Virginia talked about 70 additional staff at the time; I had not even thought that it would be that high. To be honest, that is going to have to be a corporate response from the whole local authority. It is not something that returning officers can do in isolation. I am absolutely certain of that now. We have tried to figure out what that could look like, but until we know a bit more detail it is quite difficult. One of the questions that I have raised is, as I have 10 parliamentary constituencies, do I just have one core centre, or do I have to have something in each constituency to ensure that I do not have any barriers to people coming in? Why should they have to come into the city centre? I do not know.

In terms of who it potentially disenfranchises, that is a really good question. Back in November, I brought a report to one of my committees in the city council, just to flag that voter ID was potentially going to be introduced. They are better placed than I am to identify the vulnerable groups within their communities, so I am going to push the burden on them a bit to tell me who those communities are—older people, students or vulnerable people. I get on my hobbyhorse about students, because my son is 19 and at university. He has already lost two forms of ID, and that was during lockdown—[Laughter.] My advice to him would be: go to your local elections office and get an ID card. I know that it will not have any date of birth, as I understand it, but you have to be 18 to vote, so over time that could itself drive demand.

The other, related scenario is that my son is registered in Nottingham and in Birmingham. If he had lost his ID—like his passport—would he have to come back to Birmingham to collect something and then return to Nottingham to vote? The way the Bill is currently worded is that you will potentially have to make a declaration that you have no other forms of photographic ID. That is just one of those little areas that I had not given much thought to until my son was asking for something to replace his driver’s licence. We automatically assume that, because they are younger, students have ID, but that is not always the case. We have to be a bit wary of that.

Some of my members have said to me, “I don’t have any current form of photo ID.” These are people in their mid-30s or mid-40s. Again, until we actually get into the nitty-gritty of it and put it into practice, I am not sure whether we will entirely know—until the day or week itself.

[Nick Smith]

Q Louise, my sense is that you are pretty sceptical that much voter personation actually occurs. It was interesting to hear Mr Connelly talk about the difficulties that young voters may have in having voter ID easily to hand. My view is that simple systems boost participation and simple messages are key. What measures do you think you will have to use across the UK to inform our diverse communities that they will need voter ID, and what are your concerns?

Louise Round: I think that it will need to be tackled on a whole range of fronts. There will be a national campaign, and obviously the Electoral Commission will have a massive role to play in relation to that. However, if you take the vaccination programme, which was the most recent analogous experience, our experience is that small and local works. In Merton, as in many other councils, we used local community champions, in some cases from the same ethnic backgrounds as some of the harder-to-reach groups: younger people and older people who can actually talk to people who may be less inclined to, or may not even know that they need to, apply for voter ID in a language and with experience that those people can tune into. It will take a huge concerted effort by the Government, the Cabinet Office, the Electoral Commission and local returning officers.

To pick up what Rob was saying about voter ID cards not being an electoral services responsibility, teams in London range from three to five people, so there is no way they can take on issuing voter ID cards in the middle of an election—as I said, I suspect that, however long the run-up, that is when all the pressure will be piled on. This is a corporate responsibility, and returning officers, generally speaking, are senior managers or chief executives in councils, so they will need to mobilise all their colleagues and make sure that everybody puts all hands to the pump so that we do not disfranchise people.

[Peter Gibson]

Q I have two questions for Rob. In her evidence, the returning officer from Peterborough outlined that they had explored using CCTV in their polling stations. Could you comment on whether you have done the same and on whether that would be of benefit? Could you also outline whether all your polling station clerks are fully trained in the applicability of tendered ballots?

Rob Connelly: CCTV is something we explored in around 2010 or 2011, but we had a number of concerns, including that it might go the other way and affect people’s confidence in the system, in that they might be worried that we were spying on them or would be able to identify how they were voting. We opted not to go down that route. We invested more in additional training for our staff. We even considered looking at CCTV outside polling stations for people who were entering. Again, we did not think, if there were allegations of personation, that that would really help us. We had discussions with West Midlands police about the evidential side of that, and CCTV would not necessarily help you identify who had committed any crime of personation or when. We know it would have been very difficult to prove. As I say, we invest more in our staff who are delivering the ballot papers, and what have you.

In terms of the question about tendered ballot papers, that is something we make sure we reiterate every election. We introduced a form for our polling station staff. If they gave out a tendered ballot paper, they had to give an explanation as to why—what was the reason? We would then spend some time collating that information post-election. That would do two things. One, if there were particular problems with particular polling stations and polling station staff, we could pick that up with them to find out why they were doing those things and fix that for next time. Two, we would then report that back to our members and give out numbers over the whole city, saying that x number of tendered ballot papers had been issued and giving the reasons why. I will be honest with you: there were times when they were probably issued wrongly, but that helped identify the issue so we could eliminate that from the process.

[Jerome Mayhew]

Q Mr Connelly, you were asked a moment ago about disenfranchisement, with specific reference to the first clause in the Bill, on voter ID. Although the Bill has one clause relating to voter ID, it has five clauses relating to proxy and postal voting. We heard really powerful evidence about that from Mr Mawrey QC this morning. When he was asked his view about disenfranchisement, his evidence, which was absolutely stark, was that it was the Bangladeshi community who had had their votes stolen and harvested and who were overwhelmingly disenfranchised as a result of voter fraud. Would you agree with that expression of opinion?

Rob Connelly: When we had our 2004-05 issue, I don’t think it was with that community.

[Jerome Mayhew]

I should make it absolutely clear that he was making direct reference to Tower Hamlets in that series of questioning. Rather than pinning it all on the Bangladeshi community, what I really want to focus on is that it tends to be minority communities who have had serious examples of electoral fraud—the kind of fraud that is dealt with in the proposed legislation. That is the area where most disenfranchisement has taken place historically.

Rob Connelly: As an example of that, there was a local election in which complaints were raised with us about potential fraud in the community by one of the candidates. People were potentially going to polling stations, and what have you. We did additional training for our polling station staff in that particular ward—myself and a police officer from West Midlands police—to explain what the particular allegations were and also what they could do to identify offending. In the petitions we have had, people have questioned the integrity of our polling station staff, which we vigorously defend, because 99.9% of the time they are absolutely honest. As I say, they come in for one day a year and without them we cannot deliver elections.

The sort of scenario you are talking about is often identified before an election, because the communities can sometimes be split by party lines. They will flag these issues up with us and we will work not only with the police, but with the political parties. I always think that to combat fraud, there are three parts of the jigsaw puzzle: the returning officer, the police and the political parties. If they all work together, that is how you combat fraud.

[Jerome Mayhew]

Q You mention the police as one of the triumvirate. How important is it that the police take electoral fraud seriously and get actively engaged?

Rob Connelly: West Midlands police always have done because of what happened in 2004 and the criticism they got at the time. It was a lesson well learned for them. Ever since then, they have taken such allegations very seriously. We work very closely with them and we have a point of contact. We will meet them in early January or in February to start preparing for the next May elections.

[Jerome Mayhew]

Q That is a definite improvement. Prior to 2004, complaints were called “Operation Gripe” in West Midlands police.

Rob Connelly: Yes, you are absolutely right.

[Jerome Mayhew]

It is fair to say there was room for improvement.

Rob Connelly: Yes.

[The Chair]

This will be the last question.

[Paul Bristow]

Q You said in your evidence that a feature of elections in Birmingham in the past has been people turning up at polling stations with a collection of ballots. That is a feature I know all too well from Peterborough—it happens all the time. There is clear evidence of postal vote harvesting. I know that it goes on. We see people knocking on doors down the street collecting ballot papers and postal votes. Do you feel that the provisions in the Bill will go some way to ending what is a pretty murky practice?

Rob Connelly: They do—I would like to think so. One thing we have to be careful about is that if we introduce voter ID, one of the unknown consequences could be that people say, “I can’t be bothered to go and get my ID card.” Will they then think, “I’ll go and get a postal vote instead.”? We just have to be mindful of that.

[Paul Bristow]

Q What about party activists collecting ballot papers and handing them in? The Labour party once had its own mock ballot box that it was taking around and asking people to put their votes into. I think we can all agree that that is a practice we ought to end, and we could end it.

Rob Connelly: After 2004, all the political parties undertook not to—

[Paul Bristow]

That is absolutely true.

Rob Connelly: The Labour party have signed undertakings before every election following that. It gets undertakings from its candidates and activists that they will abide by all the guidance. It shares that with me and gives clear instructions that, certainly in Birmingham, its party activists will not go anywhere near postal votes.

[Paul Bristow]

Q There is no excuse for it—do you agree?

Rob Connelly: The only reason you would allow it is if a disabled or elderly person wanted some help, but that is a service we can offer.

[Paul Bristow]

Yes, indeed. Thank you.

[The Chair]

If there are no further questions, I thank the witnesses for their evidence and we will move on to the next panel.

Examination of witnesses

Dr Kate Dommett, Professor Justin Fisher and Darren Grimes, gave evidence.

15:46

[The Chair]

Q We will now hear evidence from Dr Kate Dommett of the University of Sheffield; Darren Grimes, a political commentator; and Professor Justin Fisher of Brunel University London. We have until 5 pm for this session, but we might be interrupted by a Division. Will the witnesses please introduce themselves for the record?

Professor Fisher: Hello, my name is Justin Fisher, and I am a professor of political science at Brunel University London.

Darren Grimes: Hello, I am a political commentator, and I campaigned for leave in the 2016 referendum.

Dr Dommett: Hello, I am Dr Kate Dommett and I am a senior lecturer at the University of Sheffield.

[The Chair]

Thank you. Cat Smith?

[Cat Smith]

Q Thank you, Chair. My first question is for Dr Dommett, regarding your research on digital campaigning. Obviously, for about a decade now, there has been widespread support and campaigning for additional imprints to be part of transparency around online campaigning. Do you feel that this is sufficient? Do you feel that it is future-proofed, and are there any changes or additions that you would like to see in the legislation, given your specialist knowledge in that area?

Dr Dommett: Thank you very much, Cat. First, it is very good to finally see imprints being tabled into electoral law. This is something that has been called for for 10 years. I have sent evidence to the Committee that outlines some small changes, but broadly I think there is support for this and it is likely to be welcomed. There are questions about the implementation of the proposals as drafted. For example, there is a lot of vagueness around what it means for an imprint to be “reasonably practicable”. From my perspective, that appears to be quite a big challenge in implementation. Is it going to be down to a campaigner, for example, to determine what is reasonably practicable? If that is the case, we are going to see imprints being placed not directly on the material itself, but on external websites. That starts to pose significant challenges not only for oversight, but for researchers such as me, who will be tasked with collecting all these instances to offer any scrutiny. That is a point of concern that I would raise.

The other issue is the distinction between paid and unpaid material, and the implications for what is regulated under each type of content. This is a very challenging issue, and it comes to your question about what is and is not being covered in future-proofing. It is notable that, in focusing on page content, we are talking about a very specific type of page content in relation to imprints. This is about being paid for dissemination, and it is a reflection of the huge growth in online political advertising and payment for dissemination on platforms such as Facebook. It leaves a big gap, so we are already seeing, particularly in other electoral contexts, things like influencers being paid to produce content that they then disseminate organically. That material would not be required, if it was being disseminated by an unregistered non-party campaigner, to contain the kind of imprint we are talking about. There are some questions about what will be left out under the Bill as currently drafted.

There are also issues of confusion around paid and unpaid content. One phenomenon that we see very often is that a piece of content will start paid and will then begin to be disseminated organically or, vice versa, it can begin as an organic piece of content and a campaigner can then decide to pay to boost it. Depending on the origins, it could create ambiguity about when an imprint is required.

I think there is also a challenging question, and I see both sides of it, about the regulation of unregistered third-party campaigners. There are of course valid concerns about the regulatory burden placed on those actors, but it does create an opportunity for something we have seen evidence for: a lot of organic groups that are very small in scale co-ordinating to disseminate messages across social media. They would not have to carry an imprint under these rules. There is a very good example in Scotland, where this has already been tested and where both paid and unpaid material from all actors is required to have an imprint. I think it is interesting that the Bill is diverging from that practice, and I would raise a question about that.

On your bigger question about whether this is enough for the regulation of digital campaigning, I think my answer can only be no. That was being called for 10 years ago, and you only have to think back to 10 years to think about how much the digital space has evolved. There are huge questions around the regulation of digital campaigning, particularly about the power of our electoral institutions and processes. The democratic institutions that we have to oversee elections do not have any power to intervene in the activities of social media platforms, which now provide an incredible and very valuable platform for campaigning. The Electoral Commission in particular has minimal powers to compel information from those actors.

As a researcher, I may be expected to say this, but there is an incredible lack of transparency around digital campaigning because of the lack of data access available in that space, as it is a commercial realm. That means that it is virtually impossible to scrutinise what is happening in the digital space, and given the range of concerns emerging in that area, the Bill misses an opportunity to provide avenues for more information about what is happening online. Broadly, I would say that it is good to finally see this being taken forward, and I think there is potential for it to work well with a couple of clarifications.

[Cat Smith]

Q You touched on the issue of third-party campaigners, and beyond the digital side, the legislation actually gives the Minister for the Cabinet Office the power to remove the ability of a campaign charity, for example, to campaign in an election. Do you have any concerns about that? The recent legislation change in Scotland means that there would be a disparity in the UK. Do you think that could lead to confusion, particularly for UK-wide third-party campaigners?

Dr Dommett: Yes, there is definitely potential for confusion. One of my headline thoughts about the entire Bill is that it is a real missed opportunity to fundamentally rewrite electoral legislation to provide greater clarity, which has been repeatedly called for because we have a mismatch of regulations, so I think there are potential concerns. I have forgotten what you asked about—was it third-party campaigners? Apologies.

[Cat Smith]

It was about third-party campaigners and the Minister’s power to remove their ability to campaign.

Dr Dommett: I have concerns about the powers of ministerial discretion in a number of areas in the Bill. That comes to a different area of my research that is not focused so much on the digital side but on public perceptions. The importance of electoral processes—especially electoral oversight—being seen to have a high degree of independence is absolutely pivotal for public trust. I would have concerns about the Minister’s ability to exert discretion here. I think that is fine for parliamentary oversight, but Government interference could raise public concern.

[Chloe Smith]

Q Good afternoon to all three of our witnesses.

I will try to ask a question or two of each. Kate, sticking with you to start—very good to see you—will you give us an insight into the international picture of digital imprints? My understanding is that it is not a very long list of countries that have yet been able to address this and put it in place. I acknowledge your point that it has been a long time coming but, in turn, you will appreciate that is because we have taken time to do technical consultation quite comprehensively, which is needed here. Given that context, is it not the case that not very many other countries have managed to do this yet and we stand a chance of being in the lead?

Dr Dommett: You will have to forgive me, in that my research focus is largely the UK, so I cannot speak with as much authority here as I would like. There is some precedent for this around the world. What I am most familiar with is not national Government efforts, but the efforts made by social media companies in this area, where we have seen it rolled out at scale very successfully. As in a number of areas of electoral law, the UK is leading the way in terms of transparency, so I certainly agree that this is something that would help set a good standard, but there are certainly improvements that could ensure that this specific intervention marks a gold standard for what is done.

[Chloe Smith]

Q Thank you, that is helpful and one of the things that we will be aiming to do. Will you also recap for us the goal, or the problem, that you think the absence of a digital imprint gives rise to that needs to be solved? We did not start with principles, but went straight into the details of how we might improve the idea.

Dr Dommett: From my perspective, it is interesting to read the Cabinet Office’s ambitions for this particular goal. They are extensive and varied. Primarily, this is about aiding electoral oversight and making it clear which actor is responsible for campaign materials, therefore providing a trail in order to determine whether any of the existing regulations have been violated.

In addition to that—this is where there is less evidence, interestingly, but where emphasis is often placed—this is about public transparency and increasing confidence and trust in the electoral process. In current debates, an awful lot of weight is placed on the ability of imprints to advance that goal. I would question whether we had the evidence that that is actually the case. It is something on which we have current live research ongoing here at Sheffield. We are looking at the relationship between seeing an imprint and a resulting increase in public trust. The primary goal, however, has to be that important one, which is providing a clear steer on where that information is coming from. That is vital because, from the public perspective, it helps. We all use cognitive shortcuts, so it helps us to orientate and understand the motive with which that actor is placing the content, which is very important.

[Chloe Smith]

Q Yes, indeed. May I quickly pick up on the third-party campaigning definition question which you have just discussed with Cat Smith? Will you confirm for the Committee that there is already a provision in the Political Parties, Elections and Referendums Act 2000 —namely, section 88—that allows for a list of categories of entities that are able to give a notification or, in other words, to register with the Electoral Commission as a third-party campaigner? That already exists in law and as a concept.

Dr Dommett: I am afraid that I am not an expert on PPERA, so I will not be able to comment.

[Chloe Smith]

Q Not to worry, we will pick that up later. Thank you so much for joining us. I turn now to Professor Fisher—welcome—and the notional expenditure part of the Bill. You have kindly already supplied some evidence to the Committee in which you say that you endorse the Bill’s approach to that question.

Professor Fisher: The question of notional expenditure has exercised electoral law since the introduction of PPERA 2000. Essentially, before that we had no national expenditure as such. It has caused some difficulty with questions surrounding the role of national parties and their targeting strategies, and the accusation has been that candidate expenses are bypassed.

There are a number of ways one can look to solve the problem, but having looked at all the ones that have been suggested, it seems to me that they would cause more problems than the current situation. I welcome the Bill’s attempt to bring clarity to that situation; for example, the notes around the Bill talk about the “leader ‘soapbox’ visit”. In the research I have done on campaigns, I came across a slightly ludicrous situation in the last campaign where a candidate needed to hide from their party leader to ensure that the expenditure did not fall on the candidate.

However, in recent years there have been a number of cases that were distressing for those investigated and, in one case, the investigation led to a prosecution. The prosecution that followed the case in the 2015 election was very interesting, in that the person who was prosecuted was from the national party, rather than the responsibility falling on the agent or the candidate.

I welcome the attempt to clarify that; I have some concerns about the wording in the Bill, which refers to being “encouraged” to engage in some activity. It seems to me essential that the candidate, the candidate’s agent and the relevant member of staff in the national party should be protected from any false accusation and that, therefore, there should be a proper documentary trail. That being so, the word “encouraged” leaves one open to misunderstandings and difficulties. It would be better for the principle to be in line with the acceptance of donations, where everything has to be on paper.

Coupled with that, it would be sensible for there to be a responsible person at the national party headquarters for authorising party expenditure in a constituency. There is no suggestion that that has happened, but it would perhaps protect junior members of party staff from taking the blame for something that had been authorised further up.

While I endorse the Bill, there need to be some safeguards, because in the past there have been suggestions that perhaps candidates and agents have had to take the blame for the actions of national party headquarters. Indeed, that is precisely what happened in a tragic case in 1997, and in a number of the cases I referred to that did not reach the court in 2015, there was some suggestion that candidates and agents were left rather more exposed than was necessary. I endorse the Bill. This is a difficult area, but on balance I think this is the best approach. It recognises both the electoral system and the traditions that we have in this country—but there should be some tightening of the language in it.

[Chloe Smith]

Q Thank you. That is a very thoughtful reflection. I have always been struck by the need to continue to allow grassroots activists, volunteers and people who are not steeped in electoral law to be involved. Do you agree that there is a way here to encourage people to get involved without overbearing legal risk?

Professor Fisher: Definitely. In some ways, this refers back to the questions posed to Dr Dommett. I have some concerns about the over-regulation of elections. We have to accept that there is some activity that we simply cannot regulate, and one cannot have a situation where people who voluntarily engage in politics, which is a good thing—the vast majority of electoral agents are volunteers, and we would not want to prevent them from getting involved—find themselves on the end of a legal investigation as a result, perhaps, of a misdemeanour of which they were unaware. That is particularly true of electoral agents. The vast majority of them, more than 80%, are volunteers. It is some job to stand up and take on that role, in the knowledge that you could find yourself in prison.

[Chloe Smith]

Q Thank you. I am sure there may be some other questions around that later on, perhaps bringing in our other guest who also has experience there. Sticking with you, Professor Fisher, I want to ask about the provision on third-party campaigner registration—the new lower tier for registration—and the Bill’s aim to restrict third-party campaigning to UK-based entities. You say that both of those make good sense, and hope that they serve to enhance transparency at an election. Can you explain why you take that view?

Professor Fisher: It seems to me that any piece of electoral registration around finance should be principally about transparency and trying to have an equal playing field, as far as that is possible. The tier for registration in England is out of step with the rest of the United Kingdom, so it makes good sense to harmonise that.

There is a real danger of third-party expenditure from outside the United Kingdom. It is right that the Bill seeks to regulate it, but I think that we must recognise that we will never be able to prevent it entirely. The internet falls outside of UK jurisdiction; we can deal with imprints, but it would be very difficult to stop a concerted campaign on Twitter or Facebook by a foreign actor. The principle is absolutely sound, and is something that has been practised since PPERA was introduced in 2000. The attempt to keep foreign activity out of elections is a problem that is found across the globe. This is a step in the right direction, as long as we recognise that we will not be able to stop all of the activity.

[Chloe Smith]

Q Thank you so much. I will turn to Darren. Thank you for giving your time this afternoon. I am going to adopt the tone of Professor Fisher about the need to consider how much regulation is too much regulation, and how to encourage grassroots activists to be involved. Perhaps this is an area you might make a comment on?

Darren Grimes: Absolutely. I agreed with everything that Professor Fisher said. Briefly, as someone who was just a volunteer, and who does not know much about laws or statute books, I will set out why it is right for the law to make it easier for people to be part of the democratic process. Looking at what happened to me and others, a key concern for me is that if there were to be another referendum—and God help us if there were—people would be unwilling to put their heads above the parapet and be a responsible person for a registered campaign. I think that is a pretty damning indictment of where we are at in our democratic process.

Ultimately, as you have all said, a democracy that relies on volunteers would be left wanting if it was to be unable to recruit them. We would be poorer for the loss of their contribution. I have to say, with my hand on my heart, I would certainly not put myself forward as a responsible person in an election ever again—for as long as I live. It is not worth all the money in China for me to do that. That is pretty sad, and we should do anything that we can to make the process easier and more transparent, and for the Electoral Commission’s role in dealing with those registered to be permitted participants in elections role to be much more transparent. Anything we can do to make the process much more streamlined, much more transparent, and much clearer will be beneficial for a volunteer-based democracy.

Professor Fisher: May I comment on that? So that there is no misunderstanding, I think we have to protect volunteers, but a difference emerges once you start spending money. I think that is a very important distinction.

[Chloe Smith]

Understood.

[The Chair]

For the benefit of witnesses, there is about to be a vote in the Chamber, so I thank the witnesses for their evidence, and the Committee will meet again here at 11.30 am to take oral evidence.

Ordered, That further consideration be now adjourned. —(David Rutley.)

16:25

Adjourned till Thursday 16 September at half-past Eleven o’clock.

Written evidence reported to the House

EB01 Dr Katherine Dommett

EB02 Professor Justin Fisher