Higher Education (Freedom of Speech) Bill (Sixth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
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.
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.
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.
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.
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.
The Chair
I invite Members who have not already done so in this session to declare their interests for the record.