Higher Education (Freedom of Speech) Bill (Eleventh sitting)
(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
Matt Western (Warwick and Leamington) (Lab)
I beg to move amendment 38, in clause 7, page 9, line 27, at end insert—
“(e) A free speech complaint is not to be referred to the OfS under the scheme if a complaint relating to the same subject-matter is being, or has been, dealt with by the Office of the Independent Adjudicator.”
The Chair
With this it will be convenient to discuss the following:
Amendment 39, in clause 7, page 9, line 37, at end insert—
“(1A) In reaching a decision under subsection (1)(a), the OfS must consider the other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equalities Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”
This amendment would require the OfS to consider other legal duties incumbent on higher education providers and students’ unions when reaching a decision as to the extent to which a free speech complaint is justified.
Amendment 40, in clause 7, page 9, line 42, after “may” insert—
“issue guidance, give a warning or”.
This amendment would allow the OfS to issue guidance or give a warning, instead of a recommendation, to governing bodies or students’ unions against which a complaint has been upheld.
Amendment 41, in clause 7, page 10, line 2, at end insert—
“(2A) In assessing whether to issue guidance, give a warning or make a recommendation, the OfS must consider the seriousness of the free speech complaint and whether the governing body or students’ union to which the complaint relates has repeatedly breached its freedom of speech duty.”
This amendment would require the OfS to gradate the penalty it issues to a governing body or students’ union according to the seriousness of the complaint that has been upheld against it.
Amendment 42, in clause 7, page 10, line 21, at end insert—
“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”
This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.
New clause 8—Guidance on making a complaint—
“(1) Notwithstanding clause 11, this Act cannot come into force until the Secretary of State publishes guidance for students, university staff, and others setting out which complaint route each should pursue, through which regulatory bodies, and in which order, when making a complaint relating to freedom of speech.”
This new clause would ensure that those engaging with universities knew which was the appropriate route to make complaints in the first instance, and how to escalate the process should that be necessary.
Clause, as amended, stand part.
Matt Western
It is a pleasure to see you back in the Chair, Sir Christopher.
The amendments collectively address the issues of duplication and confusion we see in the complaints process and identify what we regard as an essential matter, which is the serious omission from the Bill of an appeals process. Our proposals are designed to clarify certain points.
Amendment 38 is designed principally to clarify the relationship between the Office for Students and the Office of the Independent Adjudicator, the ombudsman. In the witness sessions, I asked the chief executive of the Office for Students, Nicola Dandridge, whether she could imagine any situations in which one body or individual might go to the Office of the Independent Adjudicator and another to the Office for Students, and how that might be reconciled. She replied:
“That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 111, Q237.]
That is one of those answers that we sometimes get, where there are a couple of double negatives and we are left wondering how nuanced a particular point is. In an online comment, Jim Dickinson of Wonkhe said that is not good enough and that we cannot informally discuss how to arrange the relationship when in the Bill itself there is no provision to lay out the framework. That is the root of the problem: the lack of clarity between both bodies is a serious structural issue in the Bill, which therefore needs structural modification.
We have the prospect of what I understand in legal terms is referred to as res judicata issues, which is the possibility of a case having already been decided if the same aspects apply. In its own impact assessment, the Department for Education said that in its cost-benefit analysis, one of the costs of the implementation of the complaints scheme was the cost to students of not knowing which route to go. During a meeting I had a while back with the University Alliance, it stressed that there was serious confusion between the responsibilities of the OIA and the OfS. The Universities UK advisory board has also said that the Bill could duplicate the existing complaints system of the OIA.
The OIA itself says:
“We remain concerned that having two complaints schemes for student complaints, with overlapping but not identical remits, is very likely to cause confusion and put additional pressure on students having to choose where to take their complaint about freedom of speech issues.”
It added:
“We are concerned that creating a second complaint route with overlapping, but not identical remits, will be confusing for students and add complexity for higher education providers as well as students’ unions and other student representative bodies advising students.”
We have the situation where it is possible for an incident to result in some individuals complaining to the OfS, others complaining to the OIA about the same incident and both receiving a different remedy, depending on the context of the complaint. In the case of David Palmer, a Catholic chaplain at the University of Nottingham, the student could go to the OIA, and David Palmer could go to the scheme. It was the same issue: two bodies, two remedies. That leads to an administrative nightmare.
Amendment 39 would require institutions to balance out other legal duties in the assessment of free speech complaints. Danny Stone of the Antisemitism Policy Trust told us:
“The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university. In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 129, Q283.]
Even the former Education Secretary, the right hon. Member for South Staffordshire (Gavin Williamson), said:
“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, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]
I accept that those duties already exist, but why not make it clear in the Bill that they interact with freedom of speech issues?
The Minister for Universities (Michelle Donelan)
I can answer that question quite swiftly. We cannot get into the business of listing every single law in every Bill. The Bill, as the hon. Gentleman will recognise, does not supersede, contradict or replace existing law in relation to the Prevent duty—which is not a law, actually—or the Equality Act 2010. It is quite simple: we cannot get into the practice of having legislation where we list every other law on the face of each Bill.
Matt Western
I think it is important that there are references to other legislation in the Bill. Such elements are critical to the foundation of a freedom of speech Bill.
Amendment 40 would allow the scheme to result in a warning rather than a recommendation or a fine. This is about recognising that in most, if not all, cases, there is a fine line. It would allow universities to make judgment calls that were wrong and give them room to change their mind, rather than leap towards fines. We heard, for example, from Bryn Harris, who commented on how to balance
“the potential conflict that we were talking about, between the Equality Act”—
harassment provisions “and this Bill”, which would have to
“have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]
Hand in hand with the guidance—not mandatory—is warnings, or gentle persuasion. The vice president of the National Union of Students, Hillary Gyebi-Ababio, said that it is
“really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128, Q281.]
That, of course, will have a disproportionate impact on smaller institutions, as we have heard. We have repeatedly made the point about the smaller institutions, typically higher education bodies, but also further education colleges, that were not consulted at all in the drawing up of the legislation.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is a shame that the evidence from the Association of Colleges came late. I want to draw Members’ attention to it. I said previously that the provision would apply to 170 FE colleages, and in its evidence the AOC gives the number as 169. It states that if the Government are able to exempt junior common rooms from the legislation, they should be able to exempt FE colleges, as there is no evidence of issues relating to freedom of speech in any FE college. As my hon. Friend the Member for Brighton, Kemptown has already mentioned, FE colleges are additionally regulated by Ofsted.
Matt Western
It is indeed surprising and disappointing, if not a failure of the process, that the further education colleges were not consulted. That point has been made clear and loud by the Association of Colleges, which feels alienated from this process, yet it will bear the same burdens as higher education institutions.
Turning to amendment 42, it is vital to include an appeals process. Appealing an administrative or judicial decision is the hallmark of any liberal democracy. The existing process overseen by the Office of the Independent Adjudicator does have an appeals process, but revealingly the Bill promises none. My hon. Friend the Member for Kingston upon Hull West and Hessle put that point to the only lawyer that we heard from in oral evidence, Smita Jamdar of Shakespeare Martineau. My hon. Friend asked her whether she was
“supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK”,
to whch Ms Jamdar replied:
“Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]
Both the OIA and Universities UK highlighted the fact that in the Bill the Government are proposing a director of freedom of speech who is judge and jury in decisions on universities, and there is no right to appeal. Professor Paul Layzell from Universities UK picked up that point when he said, in what I think was a masterly understatement:
“I think we would have a concern.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126, Q276.]
The OIA has an appeals process. Why does the OfS not have one or one that will be included in the Bill? Universities UK says there would be
“no right to appeal an OfS decision.”
It says that if there were a decision that a university student union felt was genuinely unfair, it would be forced to implement it, irrespective of whether it felt there was a right of reply. UUK underscored the fact that existing routes, such as the OIA, have an appeals mechanism. UUK feels that this is absolutely appropriate, and such a mechanism must be brought into the OfS scheme as well.
New clause 8, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, has become significantly more relevant since we tabled it. The Minister has consistently referred to guidance in her replies to more or less all of our amendments. Now, she has the chance to let us see that guidance before the Bill is put in the statute book. We urge that that guidance be made available, before Report and certainly before the Bill passes into law.
We are not the only ones who want to see that in legislation. I recall Professor Stock’s comment:
“The Bill is quite vague, so it is going to need a lot of guidance, concrete examples and accompanying notes.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 6, Q3.]
In his testimony, Dr Ahmed said:
“With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 18, Q31.]
If the relationship between the duties in this Bill and the Equality Act 2010 are to be decided in guidance, as Dr Ahmed suggests, surely we have to see the guidance before the Bill is enacted. The force of the Equality Act 2010 could be undermined through the backdoor, with no parliamentary scrutiny. As Smita Jamdar said:
“I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 58, Q113.]
As I have said repeatedly, we need to see guidance on this before Report or, at the very latest, before the Bill receives Royal Assent. All these amendments tighten up the legislation, reduce or delete duplication and confusion, and underline the importance of an appeals process for all bodies, so that they can challenge any ruling from the OfS director of free speech.
Emma Hardy
It is a pleasure to serve under your chairship, Sir Christopher. I have to correct the record on the number of FE colleges affected. I originally said 170, then I said 167, but for the record this relates to 165 FE colleges.
My hon. Friend talked about amendment 39 and the reason we want to set out in the Bill the different pieces of legislation that could have an impact on free speech. The oral evidence we heard shows that there is confusion about how the Bill will interact with existing legislation.
UUK asks that the Government
“clearly outline how this Bill will interact with existing legislation and other duties which relate to free speech and academic freedom”.
Sheffield Hallam submits that:
“the Bill would set a higher standard for freedom of speech expectations, with consequent potential difficulties in relation to the 1986 Education Act, the 1998 Human Rights Act and the 2010 Equality Act.”
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My hon. Friend is explaining exactly what Trevor Phillips described. He said that a regulator does not go to the final fine or nth degree immediately; it works with, issues guidelines or goes in to provide support, and sometimes that is compulsory. The amendment would provide for what our witnesses said needs to happen.
Emma Hardy
The University of Cambridge submitted:
“A range of sanctions would allow for interventions which are more proportionate to the facts of individual cases, recognizing that some cases are more likely than others to constitute evidence of repeat or serious breaches of duty.”
Professor Kathleen Stock said:
“This legislation says that there should be a positive duty to promote academic culture. That could be a very positive, forward-looking initiative; it does not have to be heavy-handed, although obviously it has the capacity to be punitive. But there is also the dimension of encouraging universities to examine what the value is of academic freedom”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 7, Q6.]
As my hon. Friend the Member for Brighton, Kemptown mentioned: lots of witnesses said that we do not have to move straight to fines; there can be a range of sanctions.
A more concrete example of a good approach to graduated sanctions is that of the Advertising Standards Authority. It focuses on guidance before punitive action. Its website states:
“The vast majority of advertisers and broadcasters agree to follow ASA rulings and for those that are having difficulty doing so, rather than punish them, our aim is to work with them to help them stick to the Advertising Codes. However, for the small minority of advertisers who are either unable or unwilling to work with us, some of the sanctions at our disposal can have negative consequences.”
That is one example of a regulator encouraging and supporting before moving to punitive sanctions. The amendment, too, is saying, “Let’s have a look at a range of options.”
Regarding the appeals process, it is slightly bonkers—my right hon. Friend the Member for Hayes and Harlington pointed this out to me the other day, which made me chuckle—that we have more rights to appeal a parking ticket than a decision of the director for freedom of speech. If people get a parking ticket, they can make an informal appeal to the council, giving evidence and an argument as to why the ticket should not have been issued, but with the director for free speech there is no appeals process. That is slightly silly.
Most systems and organisations, such as Ofsted or the OIA, allow some form of appeals process—some way of going back to them to say, “I would like to appeal the decision. I don’t think you saw this piece of evidence.” Generally, with most regulators, an attempt at some form of appeal is involved, bringing it into line with existing practice. The amendments are sensible and straightforward. They would give people the right to appeal and provide for graduated sanctions, and I hope the Minister will accept them.
John McDonnell (Hayes and Harlington) (Lab)
New clause 8 is a simple request to the Minister to issue some form of guidance about the relevant route for appeals before the legislation comes into force. I think it is quite significant. We are introducing a complex system of complaints and processes, as well as the potential for civil action. It is not much to ask that we get absolute clarity, so that those who will implement the legislation or be the victims of it know how the complaints system will work. I would welcome a commitment from the Minister that we could take to the Floor of the House to reassure people.
With regard to the issue about the rush to sanction, my only comment is that we are dealing with a pretty contentious area, where an element of mediation might resolve most of the problems. Previous progressive equalities legislation that some people have initially opposed has not involved heavy sanctions. In the main, the results have been resolution and progress through a process of education, engagement, mediation and resolution. I think the rush towards sanction will undermine the ability to mediate.
Sir John Hayes (South Holland and The Deepings) (Con)
I apologise, Sir Christopher, for not being here at the outset. I always take the opportunity to declare my interests in the Register of Members’ Financial Interested. I am interested particularly in the University of Bolton.
Mediation would be an option available to the director. When the director receives a complaint or identifies a problem, I have no doubt that he will have at his disposal a range of mechanisms for dealing with it. This is not an either/or; it will depend on the severity of the problem, and sanctions will occur only where the matter is not dealt with satisfactorily. I do not think it is an either/or.
John McDonnell
It would be helpful if we got on the record from the Minister the process that the Government envisage the director undertaking. I agree with the right hon. Gentleman that it is not an either/or, but let us make that explicit on the face of the Bill. If we can get a statement from the Minister to that effect, I will be happy.
I use the example of a parking ticket, but even with a speeding fine—I admit nothing—there is the offer of going on a course to address speeding behaviour. We are not even building that into the Bill. I would welcome the Minister making a statement that she expects the director to undertake that process of engagement, mediation and warning before arriving at a sanction, which could be counterproductive to that process of engagement.
Michelle Donelan
Amendment 38 seeks to ensure that a complaint cannot be made to the new OfS complaints scheme if a complaint relating to the same subject matter is being or has been dealt with by the OIA. Proposed new schedule 6A to the Higher Education and Research Act 2017 enables the OfS to design the scheme. We expect it to provide that a free speech complaint is not to be referred to the OfS if a complaint relating to the same subject matter is being or has been dealt with under the student complaints scheme of the OfS. This is stated in sub-paragraph (2)(d) of paragraph 5 of schedule 6A to the Higher Education and Research Act 2017. I hope that reassures Members that this provision is already present in the Bill.
Amendment 39 seeks to set out on the face of the Bill that the OfS will have to consider the other legal duties placed on a higher education providers and student unions when making their decisions under the complaints scheme. Under clause 7, we fully expect the OfS to make a decision under the new complaints scheme as to whether an individual has suffered adverse consequences as a result of a breach of freedom of speech duties set out in proposed new sections A1 and A4 of the 2017 Act, as found in clauses 1 and 2 respectively. Those provisions are clear that the duty is to take “reasonably practicable” steps to secure freedom of speech.
The Bill does not say that the freedom of speech duties override other duties, and so it must be read consistently with other legislation. Let me be clear also that it would not be reasonably practicable for a provider or student union to act in a way that meant it was in breach of its other legal duties. Accordingly, when the OfS considers whether there has been a breach of freedom of speech duties, it will already have to consider all the circumstances, including other legal duties on the provider or the student union. I am grateful to be able to clarify this important point, and I hope that that reassures Members that the Bill does not override existing legal duties set out in the Equality Act 2010 or those under the Prevent duty.
Amendment 40 seeks to provide that when the OfS finds a complaint to be justified, it can issue guidance or a warning, not just a recommendation. Amendment 41 would require the OfS to take into account the seriousness of the complaint, as well as whether the provider or student union had repeatedly breached the freedom of speech duties. Paragraph 7(1) of proposed new schedule 6A to the Higher Education and Research Act 2017, as set out in clause 7, provides that the OfS “may make a recommendation” to a provider or student union where it considers a complaint to be wholly or partially justified. “Recommendation” is defined in paragraph 7(3) as a recommendation
“to do anything specified…or…to refrain from doing anything specified”,
and it may include a recommendation for the payment of compensation. To be clear, the OfS is not required to recommend the payment of compensation as part of its decision. However, where an individual has suffered adverse consequences as a result of the breach of these duties, it may be appropriate to do so.
In respect of the aims of amendment 40, the current drafting of the Bill gives the OfS sufficient flexibility to recommend to the provider or the student union that it should review its internal processes to ensure that they are fit for purpose, or that it should provide additional training to staff members. The OfS does not have to introduce penalties. A recommendation can cover any aspect that is relevant to the complaint, and in that sense it could be considered similar to providing guidance, or indeed a warning, on compliance with the freedom of speech duties in the future.
On amendment 41, as a matter of good decision making and the principles of public law, the OfS will need to take into account all relevant considerations when making decisions on complaints. This means that issues such as the seriousness of the complaint, and whether the provider or student union was repeatedly at fault, can be considered. The Bill provides for the OfS to set up the complaints scheme. The scheme must include certain provisions and may include others, as set out in the Bill. The OfS will be responsible for developing the finer detail of the scheme, and the Government expect that that will be done in thorough consultation with the sector and wider stakeholders.
Emma Hardy
I should have waited an extra moment, because I think the Minister just answered my question, which was about who else would be involved in the consultation. She mentioned wider stakeholders. Will she clarify whether that includes the National Union of Students?
Michelle Donelan
Absolutely; we would expect the OfS to consult the NUS, as well as additional student unions and student representative bodies, to ensure that it hears a comprehensive range of views when developing the guidance. That will ensure that the details of the scheme can be developed as appropriate, as it would not be appropriate for primary legislation to set out every aspect of the detail. That is similar to how the complaints scheme operated for the Office of the Independent Adjudicator for Higher Education when it was established. The structure of the complaints scheme was set out in the Higher Education Act 2004, but its details were developed subsequently. I hope that that reassures Members that the Bill as drafted ensures that justified freedom of speech complaints can be dealt with by the OfS in the way that is most appropriate to each individual case.
Amendment 42 would allow higher education providers and student unions to appeal against a decision of the OfS under the complaints scheme. Clause 7 provides that the OfS may make a recommendation where a freedom of speech complaint is found to be wholly or partially justified. That gives rise to recommendations that are not legally binding, although of course we expect providers and student unions to comply. That is in line with many other redress schemes, including the scheme operated by the Office of the Independent Adjudicator, against whose recommendations there is no right to appeal. I think there is a little bit of confusion about that in the Committee, but I hope that I have clarified that on the record. As the recommendations are not binding on a provider or an student union, it is not necessary for there to be a route of appeal, because they are not legally required to comply.
In a case of non-compliance, of course, the complainant would have the option of bringing proceedings before the court via the new statutory tort. In doing so, the decision of the OfS in its complaints scheme, including reasons for the decision, will be part of the evidence put before the court. The approach of the complaints scheme is “distinct from” where a legally binding sanction is imposed on a provider by the OfS as a result of a breach of one of its registration conditions.
Emma Hardy
I thank the Minister for that point about the OIA, but the OIA website states:
“A student or provider may ask us to consider reopening our review if they have new evidence that could not have been given to us earlier or think there is an error in the Complaint Outcome… Requests must be made within 28 days of the date of the Complaint Outcome or Recommendations.”
That sounds awfully like an appeals process.
Michelle Donelan
There is no formal right of appeal. If a provider or student felt that there was a factual error, of course that would be outlined in the guidance by the OfS director in relation to this Bill as well.
In the case of a monetary penalty, which is something that hon. Members have raised multiple times, there is a right of appeal set out in schedule 3 to the 2017 Act. That will be available if a monetary penalty is imposed because of a breach of the new freedom of speech registration conditions in clause 5 of the Bill.
Sir John Hayes
I am grateful to my right hon. Friend for drawing attention to the connection between this legislation and existing provisions. In the guardian of free speech’s dutiful determination to preserve that freedom, it is right that the watchdog barks before it bites. Equally, however, and as with some of the examples given in evidence by Professor Kaufmann, Professor Goodwin, Dr Ahmed and Professor Biggar, it seems to me that there has to be a righteous severity in the cases of those who cajole, bully, intimidate and cause fear across our universities, for that is exactly what is happening.
Michelle Donelan
I absolutely agree with my right hon. Friend, which is exactly why we are bringing forward this legislation, which really will have teeth to tackle the issue at hand.
I hope that hon. Members are reassured that for binding decisions made by the OfS there is already a route of appeal in place, and that it is not necessary to have a route of appeal against non-binding recommendations.
New clause 8 would require the Secretary of State to publish guidance before the Act comes into force, setting out which complaints routes to use and in which order. The Bill provides for two new specific routes for redress: a complaints scheme operated by the OfS and a statutory tort. These replace what is currently available for breach of section 43 of the Education (No. 2) Act 1986, which is judicial review, giving the duties real teeth. These new complaint routes will be available in addition to other possible complaint routes, depending on the circumstances for students: the Office of the Independent Adjudicator for higher education and the employment tribunal for employees.
It is of course important that individuals are well informed about the most appropriate route for their complaint. For example, in certain cases a student may decide to go to the OIA rather than the OfS, for instance where freedom of speech is only a small part of their complaint. That is because the OfS will be able to make recommendations only on the free speech element of the complaint. The OIA and the OfS currently already work together in a variety of ways, and the Government will work with them to ensure that these processes are clear and accessible, so that students understand their options and both schemes are free of charge.
It is important to note that proposed new schedule 6A to 2017 Act, as set out in clause 7, will allow the OfS to provide in the scheme that it will not consider complaints where the same subject matter is being, or has been, dealt with by the OIA. A similar provision will apply the other way around, so the OIA will not consider complaints already dealt with by the OfS. As for the use of the tort proceedings, the Government expect that in most cases this will be used only as a last resort, as the Committee has already discussed, noting the availability of free routes of seeking redress.
Finally, it is likely that employment cases will be appropriate for those who have had employment disputes where there might be a number of employment-related issues to consider, not just academic freedom. The tribunal will be able to consider the question of academic freedom and alleged breached of the duty in this context, although the Bill does not give them jurisdiction to hear freedom of speech cases. New schedule 6A will enable the OfS to provide in a scheme that it will not consider complaints where the same subject matter is being, or has been, dealt with by a court or tribunal.
Now that I have made clear what each complaint route does and who they will be suitable for, I note that the main provisions of the Bill will not come into force until the day set by the regulations. One of the reasons for that is to allow time for the OfS to develop the new complaints scheme and draft comprehensive guidance, including guidance on the new complaints scheme, and consult as appropriate.
I hope hon. Members are reassured that the Government will work with the OfS to ensure that clear guidance is in place before the duties in the Bill come into force and the new complaints scheme and the tort become available. This will ensure that individuals are aware of their various options when seeking to bring a freedom of speech-related complaint.
The strengthened freedom of speech duties set out in clauses 1 and 2 will ensure that higher education providers and student unions are under clear legal obligations to take steps to secure lawful freedom of speech and academic freedom. Nevertheless, it is important that individuals can access a route to raise complaints where they have suffered a loss as a result of a breach of those duties.
Clause 7 ensures that by providing for the establishment of a new complaints scheme within the Office for Students for complaints relating to a breach of the new freedom of speech duties. This will operate alongside the complaints scheme run by the Office of the Independent Adjudicator for Higher Education, a scheme for students with complaints against their provider.
The OfS complaints scheme will provide an accessible, free route for individuals to bring freedom of speech and academic freedom-related complaints against a higher education provider or student union where they have suffered adverse consequences as the result of a breach of duties in new sections A1 and A4 respectively. The scheme will be overseen, as we have talked about extensively, by the new director for freedom of speech and academic freedom.
The scheme will be available for those to whom duties are owed under new sections A1 and A4—students, members, staff and visiting speakers—which will significantly extend access to redress in terms of freedom of speech and academic freedom cases. There is currently no similar route for anyone other than students to bring complaints against their provider.
Emma Hardy
I know it was not strictly in our amendments, but I hope that before the Minister sits down she will respond to the points made about the inclusion of further education colleges, and how all this relates to the 165 further education colleges that are registered as higher education providers.
Michelle Donelan
To respond directly to the hon. Lady’s point, we think it is right that FE colleges are in scope within the Bill. They are already regulated by the OfS when they put on courses of higher education, so this is not a change for them. They are already subject to working with that regulator, as well as Ofsted and so on. It is right that we ensure that this provision is comprehensive and that we protect freedom of speech for students who are studying higher education in further education settings as well as those studying in higher education settings.
Students will continue to be able to raise complaints with the OIA, but will also benefit from the new complaints scheme in the OfS. Students will have the option to raise freedom of speech and academic freedom-related complaints via the OfS scheme, or to raise their complaint with the OIA, as they can now. Where a complaint has been found to be wholly or partially justified, the OfS will be able to make a recommendation to the higher education provider or student union, which could include a recommendation to pay a specified sum in compensation or, for example, a recommendation to reinstate a complainant’s job or place on a course.
Without this new complaints scheme, staff in the higher education sector and visiting speakers would have no access to a cost-free route to seek redress against a provider, and there would be no way to complain about the student union. This clause provides a free complaints route to individuals, whether higher education staff, students, academics or visiting speakers, to seek redress for an improper restriction of their lawful free speech. The scheme will ensure an accessible route to individual redress that is backed up by new, strengthened duties provided in this Bill.
Matt Western
So much of what is being promised will be guidance or provided in due course by the OfS, but it is far from concrete in the way the witnesses asked for. I am surprised and disappointed that the Minister has still not made one reference in the entire time this Committee has been sitting to the Charity Commission and the role it will have in this system. It is far from clear how the OIA and the OfS will work. I appreciate that it has been said there will be some guidance on that, but as we have said throughout, there is a duplication here that will be extremely hard for people to navigate way through.
John McDonnell
I think it is fairly easy. A person can pursue an HEP against the NUS via the OIA or the OfS, or an ET, overseen by the DFSAF, and of course the DFE. What is the problem?
Matt Western
My right hon. Friend expresses the nature of the problem: it is as clear as mud. It will be impossible for most students to navigate their way through this, and that may be a major part of the problem.
I have taken on board some of the Minister’s comments on our amendments. However, I really think the appeals process should be written into the legislation at this stage, and therefore we wish to press amendment 42 and new clause 8 to a vote. This part of the Bill is clearly important, but there is so little clarity about how it will work in practice. It must therefore be a real concern to all of us. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 15, in clause 7, page 10, line 29, after “provider” insert
“, a constituent institution of such a provider”.
See explanatory statement to Amendment 8.
Amendment 16, in clause 7, page 10, line 32, after “provider” insert
“, a constituent institution”.—(Michelle Donelan.)
See explanatory statement to Amendment 8.
Amendment proposed: 42, in clause 7, page 10, line 21, at end insert—
“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”—(Matt Western.)
This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 78, in clause 8, page 11, line 22, after “OfS” insert
“and an advisory board consisting of sector bodies”.
This amendment would ensure that there is the involvement of relevant sector bodies in the sector.
The Chair
With this it will be convenient to discuss new clause 7—Independent Advisory Body to advise the Director and OfS on the operation of the scheme—
“(1) Following the passing of this Act, the Secretary of State shall establish an independent advisory body (IAB) to give independent advice to the Director and OfS on the operation of the Act.
(2) The independent advisory body shall comprise of representatives of Universities UK, the Universities and Colleges Union and the National Union of Students.
(3) The advice of IAB shall be public except where mutually agreed by the Director and the IAB.”
This new clause would establish an advisory body of representative bodies within the sector to advise the Director and the OfS.
Matt Western
We come to the responsibilities of the director for freedom of speech. Amendment 78 simply seeks to ensure that one of the director’s roles is to report on the OfS’s free speech functions to a representative sample of sector bodies—something that we believe is vital. We heard from the witnesses in the evidence sessions about the potential power that the director could have. English PEN raised concerns about whether the director will be an adjudicator, a regulator or an advocate—it is not clear. Given that they will have such wide-ranging powers, it is surely only right that their reports are shared as widely and with as many stakeholders as possible.
This amendment is about collaboration—not a top-down approach, but a sector-wide, collaborative approach. Although I do not believe the post is needed, Trevor Phillips said in his evidence:
“The important point about this post is that he or she should be a protector of the freedom of expression of students and academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 21, Q39.]
How can one be a protector of the freedom of expression of students and academics without involving sector-wide bodies that represent those concerned?
John McDonnell
In my view, this issue will evolve over time. Some of the issues that are contentious today may not be in the future, and some issues that we cannot foresee at the moment may well become contentious. On that basis, the director is going to be in a difficult position unless there is a strong network of advice provided to him or her. Amendment 78 would establish in the Bill the independence of that advice and the inclusiveness of the range of bodies from which the director will receive advice. As I have said, this is a bad Bill, but if it is going to go through, this provision would give confidence to those who implement or respond to the legislation.
In some ways, I feel for the director, because their position is vulnerable and they could be the butt of a lot of contentious debates. Having an advisory body provides a buffer—protection for that individual against being targeted in relation to key decisions. It is much better for the director to arrive at a decision having consulted a range of independent bodies. I am convinced that there will be an element of consensus about the implementation of most of the legislation, but when it comes to this issue, one needs advice from those at the coalface who are dealing with this on a day-to-day basis. Amendment 78 would make that possible.
I am sure that, as the Minister has said, the director will want to engage in those discussions. However, including in the Bill this provision for a more formal body, the independence of which is guaranteed in legislation, would strengthen the advice and therefore give the director much more authority. The amendment is designed to enable the whole system to evolve over time in response to the challenges that emerge. Some issues relating to freedom of speech that we would not even have discussed 10, 15 or 20 years ago have evolved into contentious matters. The only people who can advise us on that are those who deliver the legislation.
Most of the witnesses did not want their role to be simply that of a one-off witness to the Committee; they had an ongoing interest, and they wanted to continue to engage through their professional bodies or institutions. Amendment would 78 give them the opportunity to do so with guaranteed independence and an element of authority, working alongside the director. I see the amendment as constructive, and I hope the Government will take it on board.
Michelle Donelan
As we have heard, amendment 78 and new clause 7 seek to introduce an advisory board to work with the new director for freedom of speech and academic freedom and to advise the Office for Students on the operation of the Bill when it is enacted. Clause 8 provides that the director for freedom of speech and academic freedom will be responsible for overseeing the performance of the OfS free speech functions, including the monitoring and enforcement of free speech registration conditions, the new student union duties and the new complaints scheme.
As part of those responsibilities, the director will be responsible for reporting to the other members of the OfS on their performance of the OfS free speech functions. This reflects a similar provision in schedule 1 of the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to other members of the OfS on the performance of OfS access and participation functions.
Emma Hardy
With respect, the Bill brings the student unions under the direct control of the OfS, and, as it is, the student unions do not have a direct voice through the Office for Students. I accept the Minister’s comments so far, but can she explain how the NUS and students can feed into the director for freedom of speech?
Michelle Donelan
When the new director is in place, they will produce comprehensive guidance in consultation with the sector, including student unions. I am confident that the individual who is awarded the position will be someone who listens and works collaboratively across the sector.
Not only will the measure ensure oversight of the role of the director for freedom of speech and academic freedom for the rest of the OfS board, but it will allow the OfS to better co-ordinate and monitor its free speech functions. It is, of course, important that the OfS should be held to account in the performance of its functions. That is one reason why paragraph 12 of proposed new schedule 6A, which clause 7 will insert into the Higher Education and Research Act 2017, will require that the OfS conduct a review of the complaints scheme or its operation and report the results of that review to the Secretary of State, where such a report is requested. The Secretary of State may also require the OfS to report in its annual report, or a special report, on matters relating to freedom of speech and academic freedom. That report must be laid before Parliament, as laid out in clause 4.
The Government expect that the OfS will consult widely, including with sector representatives, as I have made clear throughout the Committee, when developing the details of the complaints scheme, as well as on changes to the regulatory framework. There will be guidance to help providers and student unions to comply with their duties under clause 4, which specifically provides for the OfS to give advice to providers on good practice on the promotion of freedom of speech and academic freedom. It is important that the OfS works closely and effectively with the sector, including with student unions—freedom of speech is no different in that respect.
There is no need to set up the bureaucracy of a non-statutory advisory body, as suggested by the amendment. The OfS is independent of the Government, so to do so would simply duplicate its role as set out in the statute.
Emma Hardy
With the greatest respect, the Minister has just said that the OfS is independent of the Government, but the chair of the OfS is a Conservative peer, who was a Conservative Member of Parliament. We cannot say that the OfS is independent of the Government when we all know that its chair sits in the House of Lords and takes the Conservative party whip.
Michelle Donelan
The hon. Member has made that point before. The chair of the OfS was appointed accordingly, and the director for freedom of speech and academic freedom will be as well. I hope that Members are reassured that the Bill already ensures the accountability of the director for freedom of speech and academic freedom, and the OfS itself.
Matt Western
This is a common-sense suggestion about engaging and involving the various sector bodies to assist the director. The director’s role will be a fairly lonely one, sat in a swanky office somewhere, and the amendment represents a constructive suggestion. As we have said from the start of proceedings on the Bill, we are trying to put forward ideas to mitigate some of the damage that the legislation may cause. Engaging those at the coalface, as my hon. Friend the Member for Kingston upon Hull West and Hessle put it, who see how the measures play out in practice, will be really important.
I do not accept the Minister’s suggestion that the director for freedom of speech is going to be an independent person, or that the chair of the Office for Students is independent. People can make all sorts of suggestions about the process that was followed, but the Opposition has profound concerns, as most people do, about how that was pursued. We also have concerns about what will happen to the director for fair access and participation when that position is filled in a matter of weeks. It seems as though there is a siege mentality at the OfS, and a very determined attempt to centralise powers. I wish to press the amendment to a vote.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 79, in clause 8, page 11, line 23, at end insert—
“(d) providing an annual update made available to students’ unions and higher education institutions on—
(i) the number and nature of complaints made to OfS regarding freedom of speech; and
(ii) examples of what OfS believes to constitute unacceptable infringements of freedom of speech as set out in this Act.”
This amendment would help monitor this impact of the legislation and assist student unions and higher education institutions to stay within the law as set out in the Act by providing examples of bad practice.
The amendment stands in my name and that of my right hon. Friend the Member for Hayes and Harlington. It simply seeks an annual update that would be made available to student unions and higher education providers to enable them to understand the nature and scale of the complaints being made to the OfS about freedom of speech, along with examples that the OfS believes to be infringements of freedom of speech as set out in the Act. The amendment seeks to address the undefinable nature of the so-called chilling effect and help institutions and others to navigate this tricky territory. As Dr Bryn Harris noted,
“one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q169.]
Although the amendment does not relate to the guidance to be published by the OfS, it would inevitably form part of a wider subset of guidance that universities and student unions could look to to help them craft their codes of practice to try to make this work in reality—day to day, and week to week—on campus. That would, in turn, help student unions to reduce their budgets and the cost to their members, and it would help to reduce the costs for higher education providers as well, because they would be able to rely on what we imagine will be an expanding set of guidance examples. That is important because, as the Government’s own impact assessment states,
“SUs are the main affected groups that we expect to incur costs including: familiarisation costs; compliance costs: the direct costs of complying with the regulation and enforcement”.
My real concern is what the intended or unintended consequences of the legislation will be for the viability of our student unions. Irrespective of our political positions, we know that their vitality and viability is important to life on our university and further education campuses.
The amendment would also provide evidence of whether the Act was working. Thomas Simpson said in evidence:
“The test for success is in 10 years’ time, when it is more embedded.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 63, Q125.]
I am not sure we can wait that long. If it is to work—I do not believe it will—it needs to be effective immediately. We need to see some significant changes in the months of the first year. If the test for success means waiting 10 years, how can the Government claim to be meeting the test if there is insufficient data to back up the claim? That is why reporting is so important. As I have said before, the OfS already collates data on the number of events that are cancelled as a result of the Prevent duty. The amendment is simply an expansion of that duty.
Fiona Bruce (Congleton) (Con)
I want to speak to the amendment because it is important that there is public understanding of what the amendment calls the “nature of complaints made”. I am not sure whether the amendment would add anything to the regular reviews and reports in the amendment proposed by my right hon. Friend the Member for South Holland and The Deepings, which the very thoughtful Minister—she has promised to do a lot of thinking following comments made during this Committee—is going to consider.
It is essential that there is a good, clear understanding of the deliberations of the director. I very much support clause 8 and having the office of an individual who is responsible for looking at this kind of issue. It is really important that there is clarity on the deliberations and decisions of the director about the concerns referred to him.
I want to highlight an example of the nature of complaint that we are talking about. Yesterday, after the Committee last sat, an article entitled “Oxford college run by former equalities head apologises for hosting Christian conference” appeared in The Daily Telegraph. It said:
“New case of 'cancel culture' as Worcester College acknowledges 'distress' caused to students.
An Oxford college run by the former head of the equalities watchdog has apologised to students for hosting a Christian conference…In what has been described as the latest incident of ‘cancel culture’ at British Universities, Worcester College acknowledged the ‘distress’ that it had caused students by hosting a Christian Concern training camp… Christian Concern held its annual week-long Wilberforce Academy at the beginning of September, whilst Worcester College was closed for the summer break. The evangelical… group says that more than 100 young people were ‘very warmly welcomed, including by the Provost, received many compliments from the staff, and were not aware of any complaints or concerns’.”
However, students, presumably from Worcester College, are
“understood to have complained that the curriculum for the residential camp was Islamophobic as it included a discussion on the ‘nature of Islam’”.
Lloyd Russell-Moyle
The hon. Lady is describing an event that went ahead—it was not cancelled. Some students had complained about it and the college has acknowledged the hurt, but it is not proposing to cancel it in the future. So what is the point?
Fiona Bruce
Actually, I think the endeavour is to cancel this in the future.
Fiona Bruce
No, but it is my opinion that the endeavour is to cancel this in the future.
The definition of Islamophobia was actually debated in this place just a few days ago. The Under-Secretary of State for Levelling Up, Housing and Communities, my hon. Friend the Member for Walsall North (Eddie Hughes), said:
“we cannot accept a definition of Islamophobia that shuts down legitimate criticism and debate. Freedom of speech is the foundation of a healthy society, allowing for debate and disagreement underpinned by the values that bind people together—tolerance, equality and fairness.”—[Official Report, 9 September 2021; Vol. 700, c. 204WH.]
It seems to me that the mere discussion of the nature of Islam, which seems to be the allegation here, cannot possibly be construed as Islamophobic.
Sir John Hayes
I entirely endorse what my hon. Friend is saying. Once the master had apologised, it is unlikely that the conference would be run there again. That is the point. Often, the people who issue these apologies are not malign or malevolent, but weak and weary or befuddled and bemused. This master may not be the brightest spark in the fuse box—we do not know—but clearly he was not shining brightly on this occasion.
Fiona Bruce
I thank my right hon. Friend for that comment.
Finally, the Wilberforce Academy has been held at Oxbridge colleges for the last 11 years. I have actually spoken at one of its conferences; the students who attend the conference are serious young people seeking to inform themselves about issues of the day. We need to encourage that, not shut it down.
Michelle Donelan
Amendment 79 would make the director for freedom of speech and academic freedom responsible for providing an annual update to higher education providers and student unions on the number and nature of freedom of speech complaints that the Office for Students has dealt with, as well as examples of unacceptable infringements of freedom of speech.
It is important that the OfS is accountable for the operation of the complaints scheme. That is why clause 4 provides that the Secretary of State may require it to include a special report in its annual report on matters relating to freedom of speech and academic freedom. Such a report must be laid before Parliament so that Parliament and the sector may scrutinise it. Equally, paragraph 12 of proposed new schedule 6A to the Higher Education and Research Act 2017 provides that the Secretary of State may request that the OfS conduct a review of the complaints scheme or its operation and report on the results.
As for what the OfS believes constitutes unacceptable infringements of freedom of speech, it will issue guidance to providers and student unions to help them to comply with their duties under the Bill. In particular, it will consult on and issue changes to the regulatory framework, under section 75 of the 2017 Act, which states that the OFS
“must include guidance for the purpose of helping to determine whether or not behaviour complies with the general ongoing registration conditions.”
That guidance may specify
“descriptions of behaviour which the OfS considers compliant with, or not compliant with, a general ongoing registration condition”
as well as
“factors which the OfS will take into account in determining whether or not behaviour is compliant”.
Similar guidance will be included for student unions.
Lloyd Russell-Moyle
Does the Minister imagine that inappropriate apologies will now not be allowed under that guidance?
Michelle Donelan
I do not want to get into the individual example, because I am not fully familiar with the details. My hon. Friend the hon. Member for Congleton said that she was concerned that that event would not happen in future because of that apology. I will look into the details.
Clause 4 also provides that the OfS may identify good practice relating to the promotion of freedom of speech and academic freedom and give advice about that to providers. The Government expect the OfS to work with the sector and a range of relevant stakeholders to ensure that there is clear and relevant advice to help higher education providers and student unions feel confident in fulfilling their duties. I therefore hope that Members will be reassured that the Bill ensures transparency in relation to freedom of speech functions at the OfS, and that guidance will be given to the sector to help it to understand how it comply with its duties. However, as I have previously committed, I will take away the issue of reporting and consider what more we can do on it.
Matt Western
I thank the Minister for her remarks, which I accept at face value. I look forward to seeing what form the reporting will take. We would be very open to having some input on how best we can make that work. We do not want to be burdensome in terms of placing bureaucracy on anyone, but I think both sides of the House agree how useful reports can be to help people understand how this legislation might work in practice, by providing not just data but examples. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Western
I beg to move amendment 85, in clause 8, page 11, line 23, at end insert—
“(1A) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(1B) The person appointed as the Director for Freedom of Speech and Academic Freedom may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.”
This amendment would ensure that the Director of Freedom of Speech and Academic Freedom had not donated to any political party in the last three years and that they may not make any further donations to political parties for the duration of his tenure.
The Chair
With this it will be convenient to discuss the following:
New clause 9—Appointment of the Director for Freedom of Speech and Academic Freedom—
“(1) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.
(2) The Secretary of State shall when appointing the Director for Freedom of Speech and Academic Freedom have regard to the views of an Independent Advisory Body.”
This new clause would require the appointment of the Director for Freedom of Speech and Academic Freedom to be confirmed by the Education Select Committee, and for the Secretary of State to consult the Independent Advisory Body when appointing the Director for Freedom of Speech and Academic Freedom.
New clause 11—Review of the appointment process for the Director for Freedom of Speech and Academic Freedom—
“(1) The Secretary of State must conduct a review of the appointment process for the Director for Freedom of Speech and Academic Freedom within six months following the calling of a new Parliament.
(2) Any review conducted under subsection (1) must assess the suitability of the appointment process for selecting politically impartial candidates.
(3) The Secretary of State must lay the report of the review before Parliament.”
This new clause would require the Secretary of State to review the appointment process for the Director for Freedom of Speech within six months following the calling of a new Parliament, and lay the report of this review before Parliament. The review must include an assessment of the suitability of the appointment process for selecting politically impartial candidates.
Matt Western
It is pretty obvious what little faith we have in the potential appointment of a director of free speech. Often in life, it is not a case of what is said but who says it. We can look at this legislation and then try to interpret what is behind it. It seems obvious that this is a clear next stage in the Government’s power grab over the supposedly independent Office for Students. Until recently, the OfS was genuinely independent, but that power grab is laid bare for all to see in the Bill.
To put that in a wider context, it is fair to say that the Government have widely abused the public appointments process. It is not clear whether the director of free speech will be recruited through open competition or essentially appointed by the Prime Minister. On numerous occasions, I have raised the appointment of Lord Wharton as chair of the Office for Students. He is a Conservative party donor and takes the Conservative party Whip. He is a political appointee, so it is not a good record. To clarify, people can of course be donors. But in this case a person is appointed to the independent Office for Students one month, and the next month, having taken a pay cheque from the Government, he pays £8,000 to the Conservative party.
I would like to see the director of free speech appointed through the Committee on Standards in Public Life. On the wider problem of political appointees, I read just a few weeks ago that another of the Prime Minister’s mates, Ewen Fergusson, who happens to be another Bullingdon lad, was appointed to the Committee on Standards in Public Life. The pattern that is emerging is not good for anyone across the political spectrum. It is vital that trust in all these systems is maintained, irrespective of who happens to be in power. That trust can be eroded quickly and we have to ensure that all of us do our best to uphold it.
Many academics view what is happening as a creeping appointment of Government Members, not just to these sorts of bodies but to museums as well. I mentioned earlier the resignation of Sir Charles Dunstone as chair of the Royal Museums Greenwich, which was prompted by the Government’s refusal to reappoint an allegedly decolonising trustee, Aminul Hoque.
Our cluster of amendments seek to limit the interventionist role of Government in supposedly independent positions in public bodies. The concern about that role was highlighted by Professor Biggar in oral evidence, when he said:
“someone like me, who thinks there is a problem—and I guess the Government do, given the legislation—wants a director who has a certain partiality of that kind.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 22, Q40.]
That is clear then, isn’t? We want a partial person to be going into the independent Office for Students to preside over this important role of the director of free speech.
Dr Ahmed said:
“There are always concerns with the regulator—that it has to be impartial—and there are also concerns in this particular case.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]
Dr Ahmed was a Government witness, and I think he was referring to the case of Lord Wharton. Another witness, Smita Jamdar, a lawyer from Shakespeare Martineau, said:
“you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Does the hon. Member agree that it is important that, although these individuals are independent, they are also accountable? Does he recognise, as I do, having been part of a number of confirmation hearings for individuals appointed by the Government to significant roles in which they are expected to exercise independence, that that public, cross-party scrutiny—in this case, through the Education Committee—ensures that individuals can be questioned, and that the concerns that have been highlighted can be addressed, before the person assumes office, and that that happens in public and in a transparent manner?
Matt Western
Of course, we all want to believe in those processes, but when the processes end up consistently with mates of the Prime Minister being appointed, it is pretty disturbing.
Mr Kevan Jones (North Durham) (Lab)
What the hon. Member for Ruislip, Northwood and Pinner said about transparency is correct. There might be a Select Committee looking at the individuals, but unlike the US system, there is no power of veto to stop those individuals being appointed. If a party has a majority, it will have its person, whether other people like it or not.
Matt Western
My right hon. Friend makes a very important point. That is one of the failings of our process in this country. I came across that when looking at international trade and the trade deals that might be struck by the US representative body. In the US, a trade deal would go before another Committee, which would have a veto on the criteria of the deal and whether it should be approved. The same thing should apply to this as well.
Emma Hardy
My hon. Friend might recall that the Education Committee did not approve the appointment of Amanda Spielman as chair of Ofsted, but that was ignored by the Government and she was appointed. It does not even say in the Bill that there would be scrutiny through the Education Committee, which is something the Minister could at least clarify.
Matt Western
I was not aware of the case of Amanda Spielman, but we are increasingly seeing this sort of interference across the board. I have mentioned the case of the museum, and there is also the case that my hon. Friend has cited. What we want to do is put checks and balances in the system. If we were in government, we would expect the Conservative party to be saying the same of us. An honest and appropriate approach is needed. My right hon. Friend the Member for North Durham mentioned the US system, which is far tighter than so much that we have in this country. I just do not understand how the US can be doing it so well, yet we are not.
Mr Richard Holden (North West Durham) (Con)
We have ended up in a discussion about the US system versus our system, but the US system also has substantial flaws. One thing on which we probably agree on both sides of the House is that we want to see a minimum rate of corporation tax across the globe, which looks like it will probably be held up by Committees in the United States. There is give and take in both the systems that we are looking at. The hon. Gentleman suggests that the US’s system is perfect or is something that we should be moving towards, but it actually allows vested interests to block really sensible proposals that are liked by many other countries around the world. I would like him to reflect on that in his comments.
Matt Western
I am not saying that the US has a perfect system; far from it. I am saying that the parliamentary process, or the process that involves bodies from within the democratic systems of this place, generally pales in comparison to the way the US does this.
Mr Jones
I agree that the US system is not perfect, but would my hon. Friend support something like the NHS appointments commission, which the Labour Government introduced? It took Ministers and politicians out of the process of appointing people to health boards, and took as its bedrock the principles on standards in public life, which were the main criteria in taking decisions. Would that not be a better system, rather than allowing the Government of the day to appoint who they want?
Matt Western
I was not aware of that, so there is a gap in my knowledge, but I think that is exactly the right sort of approach. We need this appointment to have credibility.
Sir John Hayes
I am not going to continue the debate about the United States, although there are some virtues in its system—appointments to the Supreme Court spring to mind. To bring matters back to hand, Dr Ahmed, whom the hon. Gentleman has quoted, was very clear. He said:
“There is no evidence that I am aware of that there would be any problems with the appointments process.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q37.]
When it comes to credibility, he said that what matters is having someone who has “guts and principles.” That is what we need in this role—someone who can grasp the nettle. The prickly nettle is the absence of free speech, which is becoming increasingly common in our higher education system.
Matt Western
It sounds as though we may be being slightly selective in our quotes from Dr Ahmed, because I take something slightly different from what he said. I take on board the point that the right hon. Gentleman has made, but I reiterate that, as Dr Ahmed has said:
“There are always concerns with the regulator—that it has to be impartial”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]
That is where we have real concerns about the direction of travel with the OfS.
Emma Hardy
To clarify, and to put this as succinctly as possible, we are asking for the person to be appointed on the basis of what they know, not who they know. That is pretty much what all these amendments amount to. I draw the Committee’s attention to the appointment process for the OIA chair, because it looks much fairer. It focuses on the need for relevant skills and expertise, and the chair is
“appointed through fair and open competition in line with the Nolan Principles because of the value and relevance of their skills and experience.”
The OIA is not Government-owned or funded, and the chair is appointed as an independent trustee. That is the kind of thing that we are looking at here. If we refer back to the evidence given by UUK and many others, including the lawyer, we can see that they were looking for someone with some kind of legal experience and knowledge of the sector, who was appointed independently. Everybody from those evidence sessions would say the same thing if they were sitting here: “Let’s have some independence in this process.”
Matt Western
I thank my hon. Friend, who has mentioned points that I was just about to come to.
Matt Western
It is absolutely fine, and I appreciate it. The Universities UK advisory board said quite explicitly that openness and transparency are needed in this appointment.
I wanted to come on to the models that we could be using to improve the appointment of the director for freedom of speech; we recognise that the Government are determined to have such a position. In the Office of the Independent Adjudicator, nine of the board of trustees, including the chair, are independent director-trustees. They are appointed through a fair and open competition in line with the Nolan principles, as my right hon. Friend the Member for North Durham has just mentioned, based on the value and relevance of their skills and experience. From what we heard in the evidence sessions, it was not absolutely clear what skills and experience the director for freedom of speech might need, but we certainly had some insight into the values that they might have.
In December 2016, the Cabinet Office published its governance code for public appointments, in which it was made clear that all public appointments should be governed by the principle of appointment on merit. I accept that there were conflicting views in the evidence sessions on whether the director should have legal experience—personally, I believe that that is necessary—but surely we can all agree that the position should be awarded on the basis of merit, as defined by the Government’s own governance code.
John McDonnell
The simple point is that this is possibly one of the most contentious appointments in government, because it deals with contentious issues. Without some element of robust non-partisan protection in the appointment process, the whole operation of the Bill might be undermined. That is why extra safeguards are needed to ensure a buffer between the individual and party political activity. That is what one of the amendments seeks to address.
Lloyd Russell-Moyle
Historically, universities were set up by royal charter, specifically to ensure that Governments of the day were not meddling in appointments at university and that free speech was thus preserved. That was the ancient, as well as the more modern right of universities. Surely there is a requirement for those principles to be extended to the body that will now interfere in the operation of universities. Otherwise, we undermine the whole principle of independence, autonomy and therefore free speech in our higher education sector.
John McDonnell
I caution Government Members. There have been reports recently of a pattern of behaviour by Government of making appointments of, in effect, members of and donors to the Tory party—some have described them as cronies. That evidences, I think, an attitude in some parts of Government that overrides the very principles that my hon. Friend refers to and, to be honest, the traditional practice that we have come to expect of Governments. We are nearing a limit on that.
Emma Hardy
It is worth pointing out that we have no written constitution in this country. Everything we have is based on practice and tradition, because of the lack of a written constitution. Our university sector has always acted as a counterbalance to any Government of the day in offering criticism and scrutiny, forming another counterweight in our democracy. Any attempt to undermine that by politicising it through a political appointment exercising the powers in the Bill should concern each and every one of us. Governments and parties change and, as I said before and was agreed with, the people sitting on the Government Benches would be very concerned if the proposals in the Bill were those of the Labour party and we were wishing to exercise the kind of political control over the universities of the day that the Government do with this Bill.
John McDonnell
To follow up on that point, we and a large number of organisations and individuals will be extremely interested in the appointment of this individual. If there is any whiff of a political appointment, it will completely undermine the Bill and the Government’s intentions, whether we agree with them or not—I caution them on that point. That is why building additional safeguards into the Bill is important.
I have been a strong supporter of the establishment and development of Select Committees. As shadow Chancellor, I argued for a greater role for Select Committees in the formal appointment of the Governor of the Bank of England and others. If we cannot secure the role of the Select Committee in the confirmation of an appointment, it would be valuable to hear the Minister’s views on a pre-appointment hearing. As the hon. Member for Ruislip, Northwood and Pinner said, that would at least provide an opportunity for greater scrutiny of the individual and the process.
I caution the Government. There is often an element in a piece of legislation that can unpick the whole of the legislation’s import. I think this is a banana skin waiting to be stood upon if the Government are not careful and do not ensure that the process is above reproach and free from any party political interference. That could poison the well altogether.
Mr Jones
As I have already stated, I have deep concerns about the Bill. It comes back to what we define as freedom of speech. In the evidence sessions, we found different views and different incidents, in terms of no-platforming and organisations being stopped from using buildings. The hon. Member for Congleton raised Christian Concern. I have read its website. It holds some quite extreme views, and I could understand why it would cause offence to certain students. In my opinion, it is down to the institution whether they allow such an organisation’s event to take place. For example, a gay student would be concerned that the organisation in question was questioning things such as the ban on gay conversion therapy. I understand why people might think that is what their institution should be about—disagreements.
Fiona Bruce
I am actually very glad that the right hon. Member mentioned that point. That is the other issue that was mentioned in the press report that appeared to cause concern to the students who complained about it. Conversion therapy is going to be the subject of a Government consultation. It is a current, contentious issue, on which people have different views.
Mr Jones
They do. I think it is up to an institution whether they allow people to complain, if they want to complain about that. I am a bit concerned that Gerald Batten, a former UK Independence party leader, who has some quite horrific views on Islam, for example, wrote the foreword to one of the organisation’s documents. Putting that point to one side, people can complain about these organisations, which is good. I personally think it is down to the institution to decide whether it should allow its buildings to be used.
As I have said before, the reason the appointment is so important is that the individual will have a lot of power in deciding what is defined as freedom of speech. In the Bill, we skirt around the issue; we have not got a clear definition of freedom of speech. We know from the discussions that we have had in Committee that the definition varies between different individuals. The right hon. Member for South Holland and The Deepings, whom I have huge respect for, said that it is about people’s principles. That is what concerns me, because people’s principles are very different, and that is the problem. Today, it will be the Conservatives who can make political appointments, because they have a majority in this Parliament. They can appoint who they wish. But what happens if we have a Government of a very different complexion—they could be extreme right or extreme left—who want to put forward someone who will interpret the definition of freedom of speech? That could have a chilling—I will use that word again, because it is the in word—effect on the way the state or the Government of the day dictate to independent institutions what they can and cannot discuss, and what they can and cannot do. I say again that the Bill is very unconservative in that respect.
I do not think my hon. Friend the Member for Warwick and Leamington is asking for something radical. I know it is out of favour with the current Government, but he is basically saying that we should have a system underpinned by the Nolan principles. Sir Christopher, you are long enough in the tooth to know why those principles were brought in. Let us be honest: they were brought in during a very squalid period of our history in the early 1990s, when individuals connected to the Government of the day were involved in some quite unsavoury practices. I am always wary that things such as the Nolan principles should not become like tablets of stone. However, they have served us as a nation well, not just for national appointments, but in local government and other institutions. We should ensure that people are appointed on merit and because of their abilities and expertise in an area.
If the Government’s current direction of travel is to ignore the Nolan principles in large part, I would be quite relaxed about it, but we have a Prime Minister who is determined to put a Government stamp on an array of institutions, from museums right through to universities. It concerns me that we do not have safeguards in the Bill as regards an individual who will have a lot of power.
Sir John Hayes
I am grateful to the right hon. Gentleman for his remarks about me, which he knows are reciprocated. He is always worth listening to and has great experience, both in this House and in Government. However, almost in the same breath, and certainly in the same intervention, he challenged the idea of principles—I was quoting Dr Ahmed about that, by the way—and then made a case for the Nolan principles. He is implicitly accepting that there is a series of measures that can be established and that are the proper means by which the new director can do his job. If we can devise and implement the Nolan principles, I am sure the new director would advise and implement principles in a similar vein.
Mr Jones
I thank the right hon. Gentleman for his intervention, but he is confusing people’s political principles with the Nolan principles. If Dr Ahmed was suggesting that the Government believe passionately in the Nolan principles, I would have no problem with that, but I do not think that is a fair interpretation. Do the Government have form in this area? They clearly do in the appointment of Lord Wharton as the head of the Office for Students. I actually quite like the individual as an individual, but what are his qualifications for that job, apart from having been the former Member for Stockton South?
Emma Hardy
On the point about qualifications for the job, it would be helpful if the Minister could say whether those involve having legal knowledge and an understanding of the sector, which are things that much of the written evidence stated were needed.
Mr Jones
Another qualification might be being a very keen supporter of the Prime Minister on Brexit. However, in response to my hon. Friend, yes, we need that, and we are flying blind on the job description. It is quite common for public appointments to have a job spec. I have been involved in appointments, and we usually use that in the process.
Michelle Donelan
Amendment 85 seeks to ensure that the director is a person who has not donated to any political party in the last three years, and it would prohibit the director from making donations to political parties for the duration of their tenure. New clause 9 seeks to set out additional requirements for the appointment process of the new director for freedom of speech and academic freedom at the Office for Students, requiring approval by the Education Committee and that the Secretary of State take into account the views of an independent advisory body. New clause 11 would require the Secretary of State to conduct a review of the appointment process for the director within six months of the calling of a new Parliament. That review would assess the suitability of the process for selecting politically impartial candidates. The Secretary of State would be required to lay a copy of the review report before Parliament.
The director for freedom of speech and academic freedom will be appointed in the same way as other members of the board of the Office for Students, under the Higher Education and Research Act 2017 by the Secretary of State. I assure Members that that will be done in the usual way, in accordance with the public appointments process. I emphasise, as has been demonstrated in our sittings, that freedom of speech and academic freedom are fundamental principles in higher education; they are not the preserve of one political party.
Emma Hardy
The Minister is genuinely very generous in giving way. She always lets me in, and I appreciate that. Will the job description for this brand-new role be written, as discussed previously, in consultation with the sector, including the National Union of Students, so that we get the right description to ensure that we get the right person?
Michelle Donelan
Throughout my tenure as Minister of State for Universities, I have worked closely with the sector, listening to its views and its requirements for the role, as the Department has done. We will continue to do that.
Matt Western
On the appointment and the process, the Minister was in place as the Minister of State for Higher Education for the appointment of Lord Wharton. What were the skills and expertise that got him the job?
Michelle Donelan
We are going very off topic. We have a lot of clauses to get through, so I will continue.
There will also be important oversight built into the system when the director has been appointed. The director will be responsible for reporting to other members of the OfS on the performance of the OfS’s free speech functions. That reflects a similar provision in paragraph 3(1)(c) of schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for
“reporting to the other members of the OfS on the performance of the OfS’s access and participation functions.”
That will not only ensure oversight of the role of the director for freedom of speech and academic freedom, but the rest of the OfS board will also allow the OfS to better co-ordinate and monitor its free speech functions.
I therefore hope that Members will be reassured that the appointment of the director will be in line with the usual public appointments process and that the role of the director is ultimately overseen by the rest of the OfS board.
Matt Western
This has been an important debate. As we have said, this will be way too much power invested in one individual. That will then lead to that individual’s interpretations of situations against their personal set of values and principles.
Emma Hardy
Hopefully, the next time the Minister stands up she might be able to clarify whether the appointment of the director for freedom of speech and academic freedom will be subjected to a pre-appointment process with the Education Committee, in the way that Amanda Spielman was when she was appointed to Ofsted, for example, and in the way that the Committee deals with other educational appointments? Will we have that pre-appointment hearing?
Matt Western
Indeed. The purpose behind new clause 9 is to have a process whereby the appointment goes through the appropriate body in the House of Commons, which we suggest is the Education Committee.
The bottom line is that we do not see any safeguards in the process. We do not see any checks or balances to ensure that this individual does not abuse the power and influence that they may weald. It is important to have some trust in the appointment process, which is why new clause 9 says the appointment should go through the Education Committee, ideally with some pre-appointment consideration. There are many advantages to that, not just in terms of the power to veto.
The Education Committee should have more say anyway. It is important to empower these bodies, as my right hon. Friend the Member for North Durham described when he talked about the veto processes that exist in the US system but that we seem to ignore completely. Those are the sorts of checks and balances that we want to see introduced.
Emma Hardy
The reason for talking about the Education Committee is that people said in some of the evidence that they wanted democratic oversight. We are fully aware that the Education Committee is balanced by who has the majority in Government, so there would currently be a Conversative majority, but it is still an important democratic safeguard to have a separate body to scrutinise the appointment and have a veto. I hope that is something the Minister will take away and seriously consider.
Matt Western
I am sure that the Minister is listening to these points. I think the Education Committee should have certain powers and status, and its involvement in these processes would be useful. I would even widen this to a broader panel if possible, with sector involvement as well, because experience, expertise and understanding of the reality on the ground is important. Having someone parachuted in because their political persuasion suits the Prime Minister is not a good way to govern such an important part of our democratic landscape.
The concern is that there will be a clear differentiation between—
Elections Bill (Fifth sitting)
Wednesday 22nd September 2021
(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 September 2021 - (22 Sep 2021)
The Chair
Before we begin, I will make a few preliminary remarks. There is a load of stuff here about face masks, mobile phones, and food and drink, but do what you like, within reason. We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same, or a similar, issue. Please note that decisions on amendments do not take place in the order that they are debated but in the order that they appear on the amendment paper. The selection list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the existing clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so.
Cat Smith (Lancaster and Fleetwood) (Lab)
On a point of order, Sir Edward. On Monday evening, the House considered an instruction motion that had been tabled in the name of the previous Minister, the hon. Member for Norwich North (Chloe Smith). The motion changes the scope of the Bill and includes different types of electoral systems. Having had four evidence sessions in which we were unable to question witnesses about different electoral systems, I wonder whether you, Sir Edward, have had any indication from the new Government Whip, the hon. Member for Castle Point, about whether more evidence sessions will be timetabled so that the Committee can take evidence from expert witnesses on different electoral systems.
The Chair
I thank the hon. Lady for that point of order. I have had no communication from the Government. Regarding more time, it is perfectly in order for the Committee to come to an agreement, either between the usual channels or by way of an amendment, to allow more time. I will leave it to the hon. Lady to discuss with her colleagues and the Government whether they want more time. I am sure that my colleagues and I will be perfectly open to that, but it is entirely up to the Committee. We are in your hands.
Brendan O’Hara (Argyll and Bute) (SNP)
Further to that point of order, Sir Edward. I share the concerns of the hon. Member for Lancaster and Fleetwood. It is outrageous that the Government should seek to parachute in something in addition to the scope of the Bill without any debate. There was no debate on Monday night, because the Minister, the right hon. Member for Tamworth (Christopher Pincher), did not engage with the House. He turned up and read a pre-prepared statement. He did not engage. He did not even take an intervention from his opposite number. It is farcical that it should happen in such a way that no questions were answered and there was no scrutiny. This did not appear from thin air. The Government knew that this was happening; yet I believe they held it back from the Committee. I think it is only right that the Committee should have a chance to bring back expert witnesses so that we can have testimony from them on what this crucial part of the new scope will mean for the entire Bill.
The Chair
I can only repeat what I said to the hon. Member for Lancaster and Fleetwood. That is a perfectly fair point, and if the hon. Gentleman wishes to table an amendment to that effect, I am sure that the Government will listen very closely. I am completely in the hands of the Committee.
We will start with clause 1, and the question that it stand part of the Bill. Members will note my grouping and selection, and that several detailed matters relating to voter ID will be covered in debates on amendments later today. Clause 1 introduces the schedule on voter ID. I would be grateful if Members could please restrict their remarks to the principles of the proposals. That is quite important. I am sure that we can have a very wide-ranging debate that will be more like a Second Reading debate, but remember that there are loads of amendments later, so there is no point in getting into detail now. We will have plenty of time to discuss the detail.
Clause 1
Voter Identification
Question proposed, That the clause stand part of the Bill.
The Minister of State, Ministry of Housing, Communities and Local Government (Kemi Badenoch)
It is a pleasure to serve under your chairmanship, Sir Edward, and to progress the passage of the Bill. I pay tribute to my predecessor, the Minister of State for Disabled People, Work and Health, my hon. Friend the Member for Norwich North (Chloe Smith), for her great contribution to the proposals in the legislation. I ask the Committee’s forgiveness if I am not as sharp as she has been on the details. This is very new to me, following my taking on this position, but I look forward to taking the Bill through Committee and the upcoming stages.
I begin by introducing clause 1, which delivers the Government’s manifesto commitment to introduce photographic identification for voting at polling stations. I will first focus on the principle behind the measure, and why it is essential to the protection of our democracy. The details of its operation will be addressed later, when discussing the contents of schedule 1. I am sure the Committee will agree that it is paramount that we protect the security and integrity of our ballot, so that our elections will remain secure well into the future. The process for voting in polling stations in Great Britain has had no significant changes to security since the Ballot Act 1872. A system used in the Victorian era, when everybody was well acquainted with their neighbours, is simply not fit for the 21st century.
As my predecessor set out many times, there are undeniable vulnerabilities in our system that let people down because they can lead, and have led, to votes being stolen by unscrupulous individuals. We cannot sit idly by and tolerate that. Where there is the opportunity for fraud, we must act, particularly when we have the power to stamp it out with such a straightforward, simple policy. Just because someone is not regularly burgled does not mean that they stop locking their front door. Showing photo identification is an entirely reasonable and proportionate way to confirm that someone is who they say they are.
Many people would question why a requirement to show identification at polling stations is not already in place. In fact, the majority of the public—66%—have said that it would make them more confident in the security of the voting system. To suggest that specific groups, such as young people or those from an ethnic minority background, would automatically not be able to access the freely available voter card, based on assumptions about the work that will be done, is to unfairly diminish the agency and desire of those groups to participate. I will be unambiguous in setting this out: anyone who is eligible to vote will continue to have the opportunity to do so.
Cat Smith
I welcome the Minister to her place, and appreciate that she is obviously quite new to this area. I wonder how she feels able to back up what she just said about different demographic groups not having any trouble accessing free ID. The Driver and Vehicle Licensing Agency does not hold data on the ethnic background of people who hold a driving licence, and the Home Office does not hold data on the ethnicity of those who hold passports. Given that those are the two main forms of ID, how is she confident that any particular ethnic group will not be disproportionately affected by the policy?
Kemi Badenoch
I am happy to answer that question. As we produce guidance, we will be able to give more details on the specifics, but the fact is that it is an insult to say that someone from an ethnic minority background will have difficulty procuring ID. That is nonsense.
Kemi Badenoch
No, no—I have given way. I am also, as the hon. Lady will know, the Minister for Equalities. I have spent a year working on the disproportionate impact that covid has had on people. Being able to collect data is critical, but assuming from the get-go that people are disadvantaged on the basis of their background is stigmatising, and denies them their agency.
Kemi Badenoch
Let me finish. I do not know the conversations that the hon. Lady has had with other people. I think that she will find that on this issue I will be very robust, and I will not stand in this House and have ethnic minorities denigrated with the assumption that they need the Labour party or the liberal left to hold their hand in order to vote. We have had pilots, and there is a lot of evidence to show that this policy does not discourage people from voting.
Cat Smith
On a point of order, Sir Edward. I never said anything about ethnic minorities in my intervention on the Minister. I said that data on different ethnic groups was not collected. I never made any comment about ethnic minorities. I just wish to make that clear for the record.
The Chair
The hon. Lady has made her point, and I am sure that the Committee will have heard it.
Kemi Badenoch
The hon. Lady talked about the DVLA not collecting data on the ethnic background of people, so we know the point that she was making. As I said, I will be unambiguous in setting this out: anyone who is eligible to vote will continue to have the opportunity to do so. I hope that for the rest of the Committee we will be able to have a civilised debate, and not one where we bring in issues that are not pertinent to the matter at hand.
Aaron Bell (Newcastle-under-Lyme) (Con)
I share the Minister’s distaste at the suggestion that people do not have that access and that agency. Is it not the case that the existing elements of voter fraud in the system fall disproportionately on ethnic minority populations, as we saw in Tower Hamlets in the Bangladeshi community?
Kemi Badenoch
I completely agree, and I am very grateful to my hon. Friend for making that point.
I want those listening to the debate to be clear that we will work with them, and for them, to ensure that the implementation supports their participation, and I hope that on that principled point the Opposition will stop their negative and discouraging narrative on the future of the measures. Voter identification is a simple, proportionate and effective means to strengthen the integrity of elections. For those reasons, I urge that clause 1 stand part of the Bill.
Cat Smith
It is a pleasure to serve under your chairship, Sir Edward. I welcome the new Minister, the new Government Whip and the new member of the Committee, the hon. Member for Devizes. They missed out on the pleasure of the four evidence sessions that we enjoyed last week, but obviously those evidence sessions—I will make the point again, Sir Edward—were not sufficient to cover all the clauses due to the instruction motion that was passed on the Floor of the House on Monday evening.
It is incredibly disappointing and bad form on the part of the Government to approach the House with a constitutional Bill that fundamentally changes huge swathes of how we vote and exercise our democratic rights as a society without that level of scrutiny. The instruction motion included a change to the voting system that previously happened only under referenda. I note the alternative vote referendum that we had about a decade ago. If we are to change our voting system in this country, not with referenda and not even with consideration on Second Reading or in Committee evidence sessions, I question the accountability to which hon. Members feel they can hold themselves.
Clause 1 requires voters to show photo ID at elections. I believe that in a democracy it is right that voters choose their leaders, but in the Bill we see a reversal of that: it appears that the leaders are trying to choose the voters who participate in elections. There is no doubt that requiring photo ID at a polling station is an additional barrier to voting. No one can argue—I welcome interventions from Government Members—that putting an additional requirement on a voter before receiving their ballot paper is anything other than likely to drive down turnout. If we wish to strengthen our democracy, as the Opposition wish to, one of the best ways that we can do that is to drive up turnout, because bad actors thrive when turnout is low. I wish the Bill were about encouraging participation in elections and democracy, and driving up turnout, because that would make it harder for bad actors to manipulate and twist our election results.
Paul Bristow (Peterborough) (Con)
In the hon. Lady’s vast experience as a member of the Labour party, has the requirement for voter ID to vote in internal Labour party elections been an additional barrier to participation?
Cat Smith
I have been a member of the Labour party since 2004 and I have never been asked to produce photo ID to participate in my local party or national party events, to stand as a Member of Parliament or to be a member of the shadow Cabinet. The hon. Member will remember from the evidence sessions, because he was a member of the Committee then, that an example was given about the parliamentary selection in Tower Hamlets. I imagine that Tower Hamlets will be brought up a fair bit in Committee.
Where there are isolated issues, the Labour party has a process by which it can put constituency parties into what we call special measures. There are additional requirements to take part in our internal democracy where there has been evidence of fraud in the past. That probably backs up my point that the incidents that we have seen are very geographically specific, whereas the legislation covers England, Scotland and Wales. We are penalising huge swathes of the country by putting additional barriers between them and participation in democracy, when at best we have found tiny pockets. Indeed, the Committee heard evidence that personation at polling stations was incredibly isolated.
Aaron Bell
The hon. Lady speaks about the evidence, but we heard from Richard Mawrey, who is without doubt the most qualified person to speak about this. He said:
“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.”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 17, Q16.]
Absence of evidence is not evidence of absence. This is not an isolated issue, as the hon. Lady seems to think.
Cat Smith
The same witness also said:
“Not only was there electoral fraud in the sense of false votes—almost all postal votes—"
the Bill does nothing to resolve that issue—
“but the system developed so there was misuse of public funds”.––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 5, Q2.]
I think the point that he was trying to make on the Tower Hamlets example—I may misquote him slightly—was that they were working through all the types of electoral fraud and bad actors were in play. There was an injustice, and I make absolutely no defence of the electoral fraud that went on—I would be quite upset if anyone accused me of that—but is important to point out that elections were overturned and the law worked. Richard Mawrey also told the Committee:
“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”.––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 15, Q13.]
We know, based on the evidence from witnesses whom hon. Members are quoting at me, that the clause, deals with something that is not the major issue. I feel that we are somewhat missing the wood for the trees.
Chris Clarkson (Heywood and Middleton) (Con)
Does the hon. Lady accept that although it is quite possible for someone to go in and say, “I am Mr Jones of Acacia Avenue,” and for the polling clerk to say, “No, you’re not,” they are probably not going to know all 10,000 voters. The requirement to produce a simple piece of ID to confirm that it is Mr Jones of Acacia Avenue is not a barrier.
Cat Smith
It is a barrier to someone who does not have that form of ID, which is the whole point of the clause. One witness also made the point that we are asking people who do not have the forms of ID mentioned in the Bill to go through the process of getting a free voter ID card. The people who do not already have those forms of ID are more likely to be excluded from society or disadvantaged. By the way, the Bill contains no detail about how those free voter IDs will be issued and administered, or how much that will cost.
We know fine well that that additional barrier risks creating a postcode lottery. In my constituency, for example, two councils administer elections: Wyre Council and Lancaster City Council. If they were to administer voter ID cards, it would be unlikely, I suspect, that they would both have the same requirement for people to come forward. Some of my constituents may be able to go to the Civic Centre at Poulton on a Tuesday afternoon between 3 pm and 5 pm, but nothing in the Bill gives us the power to ensure that Wyre Council extends that period with evening drop-ins. Lancaster City Council could have a completely different approach, however. We are therefore saying to some voters, “It will be easier for you to access the ID than for others.”
The fact that there are no basic requirements in the Bill is something of an oversight, as I am sure the hon. Member for Heywood and Middleton will agree. I hope that we can amend that kind of thing to improve the Bill, so that we do not end up with some councils making photo IDs incredibly difficult to access.
Jerome Mayhew (Broadland) (Con)
The hon. Lady made a number of bold assertions about those who do not have voter ID. I simply ask her: where is the evidence to support them? The research supports the Government’s proposition. IFF Research interviewed 8,500 residents by telephone, and found that 98% of the general population has appropriate forms of ID. For black, Asian and minority ethnic people and people with protected characteristics, that figure rose to 99%. Where is the evidence for her bold assertions?
Cat Smith
The Government’s own research showed that 2 million people did not have ID, and 17% of those people said that they would not apply for a locally issued identity document. A further 23% said they were not sure that they would apply. Does the Government’s own research not prove that we risk disenfranchising millions?
Kemi Badenoch
I think the hon. Lady is confusing two different things. Those 2 million people are not necessarily 2 million people who are on the electoral register and are not necessarily 2 million people who would have voted anyway. Is she not mistaking correlation for causation and confusing the issue? My hon. Friend the Member for Broadland showed what actually happens when he cited evidence of an improvement in the participation of ethnic minorities and other groups in the electoral process.
Cat Smith
I am a little confused by the Minister’s intervention. There was a petition on the Parliament website about using digital IDs to access things online. The Department for Culture, Media and Sport responded to that petition using the statistics that I have used today. If one Government Department is using one set of statistics and the Cabinet Office—or presumably now the Department for Levelling Up and whatever it is—is using different statistics, does that not just show that one arm of Government is apparently not speaking to another arm of Government?
Kemi Badenoch
I am very happy to respond to the point the hon. Lady has just made. Different pieces of research are used for different outcomes. My argument was that she is confusing two separate things. The point my hon. Friend the Member for Broadland was making was specifically related to voter ID, and we should not mix and match different petitions and different polls that are used for different purposes as evidence, when the questions being asked are not pertinent to the matter being discussed.
Cat Smith
The Minister is right to say that there is a lot of different research done on who holds what ID, and it appears that there is no central understanding in Government about who holds what. That leaves us, as a Committee, high and dry in terms of knowing what impact this policy will have on different communities.
The Committee heard evidence from Gavin Millar QC, who pointed out that if Tower Hamlets was the reason for introducing voter ID, it would be
“an example of a hard case making very bad law, and I would counsel against that.”––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 108, Q165.]
Tom Randall
I was going to ask the hon. Lady whether she accepts that Labour constituency associations that are in special measures should have special photo ID requirements. Would she at least support photo ID in those parts of the country that have particular problems with administering their elections?
Cat Smith
I look forward to the hon. Gentleman’s bringing forward an amendment to the Bill along those lines, and I am sure we would be interested in having conversations across the Committee Room about how we might be able to support him in amending his Government’s Bill in such a way. I look forward to speaking to him after the Committee to see whether I can be of any assistance to him on that matter.
It is quite clear from the evidence we heard that the voter ID requirements will make it disproportionately more difficult for some people with disabilities to vote. We heard evidence from the Royal National Institute of Blind People, and we realise that anyone who is blind or registered partially sighted is very unlikely to have a driving licence, which immediately rules out one kind of ID.
Because of the poverty disabled people face, they are also less likely to have a passport, and the Committee heard evidence of concerns that the Cabinet Office had not sufficiently engaged with disabled groups, charities and campaigns in drafting this legislation. There are issues further on in the Bill—I am sure we will come to them later, so I will not go into any detail—about the changes to accessibility having a double whammy effect on disabled voters’ access to elections.
Labour will reject clause 1, and that is consistent with the position we have taken since the first day that the Conservatives mooted this policy.
Aaron Bell
It was not just mooted by the Conservatives; the Electoral Commission has for many years recommended that we introduce some element of identification into the voting process. We have identification at the registration process; would the hon. Lady abandon that as well in her noble goal of increasing turnout?
Cat Smith
I am glad the hon. Gentleman has mentioned the Electoral Commission, because of course it did not specify that this very tight form of photo ID should be introduced by the legislation. Its recommendation was much more open-ended. The Government have come forward with the tightest, most restrictive, most excluding form of voter ID. Trials took place ahead of the legislation being presented, but I believe it was only in Woking where this very tight form of voter ID was trialled. I do not know Woking well, but I am sure that it is not very representative of the whole United Kingdom.
Peter Gibson (Darlington) (Con)
The hon. Lady refers to this being a Conservative policy. Is it not the case that the exact arguments that she is espousing will have been considered by the Labour party when it introduced voter ID in Northern Ireland?
Cat Smith
The situation in Northern Ireland actually came about over a much longer period. The hon. Member for Argyll and Bute somewhat of an expert on these issues, but in Northern Ireland we did see huge swathes of personation going on in the 1980s. The politics in Northern Ireland in the 1980s was very different from the politics that we see in England, Scotland and Wales in 2021.
Brendan O’Hara
I have been trying, both on Second Reading and in Committee, to tease out where the Northern Ireland comparison comes from and how the Government believe that the situation we have in the United Kingdom in 2021 in any way resembles that in Northern Ireland in the ’70s, ’80s and ’90s, which led to the change. Nobody has managed to give me an answer to explain what the similarities are and why the Northern Ireland example is being used to advocate this change.
Cat Smith
The hon. Member for Argyll and Bute is right. Hundreds and hundreds of people lost their vote in the general election in, I think, 1982—it was before I was born. [Interruption.] It was in the 1983 general election. As a response to that, legislation came forward to require forms of ID, which were initially not photo ID, to protect the integrity of the ballot in Northern Ireland, where quite clearly organised crime was being used to disenfranchise literally hundreds and hundreds of voters in constituencies across Northern Ireland and, arguably, to skew election results.
Does the hon. Member for Darlington want to make the case that that is happening right here, right now? I would be very interested to hear whether he thinks that, in his constituency, hundreds and hundreds of voters have had their votes stolen through personation—perhaps at the general election in which he was elected. If he thinks that that is the case, I would be very interested to hear him make the case, but I do not think we can draw a direct comparison from Northern Ireland in the 1980s to England, Scotland and Wales in 2021. Does the Minister still wish to come in on that point?
Kemi Badenoch
I am very interested in the shadow Minister’s points, because she is saying that what happened in Northern Ireland in the 1980s is very different from what is happening here now, yet she is advocating keeping the rules the same as they were in 1872—150 years ago. That is extraordinary. We have not changed anything since the 19th century, yet she is saying that what happened in the 1980s is not applicable now. That is quite extraordinary.
Cat Smith
I am really thrilled that the Minister has made that point, because I have been the shadow Minister for democracy and elections for the Labour party since 2016 and I think that, in every single speech, I have made the case that electoral law in this country is fragmented and confusing. In fact, we heard from witnesses that we need to solidify—
Cat Smith
But this Bill does not solidify all our election law into one single, cohesive piece of legislation that campaigners can use, that gives voters confidence, and that makes it easier for our election judges to use the law and apply it correctly. Election law in this country is so fragmented and confusing. The Law Commission has published reports calling on the Government to come forward with a single piece of legislation to bring all this law together, rationalise it and make it more straightforward and simple. This Bill just adds to the massive catalogue of legislation that we have—different Acts from here, there and everywhere. This Government are doing nothing to make it simpler; they are just adding another layer of complication to it.
Paul Bristow
Earlier in the hon. Lady’s remarks, she asked for evidence of where election results have been impacted by personation. I urge her to look at Peterborough, my constituency, where council results have absolutely been affected by personation, and I ask her this question. In evidence, we heard from the chief executive of Peterborough City Council, Gillian Beasley, who installed CCTV at polling stations. Why does the hon. Lady feel that the chief executive of Peterborough City Council needed to do that?
Cat Smith
I thank the hon. Gentleman for sharing the example of Peterborough. I thought Gillian Beasley gave some really strong evidence to the Committee. The Opposition found the example of the CCTV very interesting, as it is a way in which the current law can be used to combat isolated pockets of personation. Gillian Beasley said,
“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.”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 21, Q23.]
She also talked about the resource implications of implementing voter ID, saying that,
“we will probably see a surge at what is the busiest time for electoral services”.––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 18, Q19.]
That draws me on to the evidence we received about the clause from the Association of Electoral Administrators. It is an organisation I meet with regularly, because I think it is important that, as legislators, we understand the implications of the laws we make on those who have to administer them. During my time in this Front-Bench role, electoral administrators have consistently told me that elections are often only just delivered securely because of the pressures in local government right now.
Local government has been on the frontline of Tory cuts, and I make no apology for saying that. Our town halls and civic centres are struggling, and elections offices are incredibly understaffed. Speaking for my own electoral administrators in Lancaster and Fleetwood, the staff work incredibly hard. In the run-up to an election, they work seven days a week, and they work incredible hours. I believe that all they do is work and sleep in order to deliver our elections and democracy securely. I pay tribute to all our electoral administrators. They often pull this off under increasing pressure. The snap elections in recent years have meant that they have often been unprepared, particularly in 2019, when the election coincided with the annual canvass. They are under incredible pressure.
Electoral administrators and councils were very clear in their evidence that, if voter ID were to be brought in, they would expect to see a surge in applications for the free voter ID in the run-up to an election, when there is incredible pressure with last-minute registrations and people checking that they are on the electoral register. Since the introduction of individual electoral registration, there has been an increase in people double-checking that they are on the electoral register. It would be nice to see something in the Bill that allowed electors to check whether or not they were on the roll, rather than just re-registering in the few weeks before an election, which puts additional pressure on electoral administrators when their pressures are at their greatest.
Peter Stanyon from the Association of Electoral Administrators said in evidence to the Committee that the applications for voter ID will come in
“when the pressures in the electoral offices are at their greatest.”
Because the Bill has absolutely no detail on how the free IDs will be administered, he asked:
“Will it require attendance in person? Virginia mentioned posting out ID—will that be permissible in the remainder of the UK?”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 44, Q59.]
Virginia McVea was the witness who gave evidence from Northern Ireland. The Minister is very welcome to intervene to make the position clear. That would be very helpful. As Peter Stanyon was saying, we do not know any of the detail at this stage.
We are being asked to vote on something with absolutely no detail. We have no idea what resource implications the Bill will have on electoral registration offices. We have no idea whether the free IDs will be posted out or whether people will have to apply in person at civic centres and town halls. We have no idea whether there will be a basic standard of expectation that people will apply for their voter ID in person, but will only be able to go on a Monday, Wednesday or Friday. None of those basic details is on the face of the Bill. We are being asked to legislate on something that we cannot be confident will be accessible to the people we have been elected to represent.
There is a £120 million bill for the taxpayer to bring in this policy, which we heard in the evidence sessions is basically designed to address something that is incredibly rare and very difficult to do. It does not seem like a good use of taxpayers’ money. In the last 10 years, there were four cases of voter personation fraud, and that was out of 243 million votes cast.
Cat Smith
I would like to make this comparison, and then I will give way to the hon. Gentleman.
I want to compare those four cases to the trials, which took place in just a handful of council areas, all of which are in England and are not representative of England, Scotland and Wales. Some 2,000 voters were turned away in the 2019 pilots, of whom around 758 did not return to cast their vote. That is just in the pilot areas. Look at the single figure numbers of cases and the hundreds of people in just a handful of trial areas who basically turned up at the polling station and did not have the right ID so went away and never came back. We are disenfranchising scores more people than we even hear accusations of voter personation.
Chris Clarkson
The hon. Lady says that there were only four cases. Of course, there were only four cases that we are aware of. That goes back to the point that was made throughout the evidence sessions: it is an incredibly easy thing to do, so we do not know the quantity. As my hon. Friend the Member for Newcastle-under-Lyme said, absence of evidence is not evidence of absence. I have to ask her what an acceptable level of voter fraud is. Are four cases of fraud okay? Do we just let that go, and say, “It’s fine. There’s a cost-benefit analysis to a bit of electoral fraud.”? How many election results have to be overturned before we say that this is actually an investment worth making?
Cat Smith
I do not think that any elections have been overturned, as the hon. Member for Argyll and Bute says from a sedentary position. We have to work on the basis of what we know, and what the facts are. We can only go on the cases that are reported, but we know that 758 people in just a handful of councils were turned away and did not come back. That is an unquestionable fact.
Cat Smith
I think we have to assume that they were. [Hon. Members: “Why?”] Because of all the evidence that we heard as a Committee. I make no apologies to the Minister—she was not here for the four evidence sessions. We did not hear convincing evidence that this is a widespread problem. That is just not what we heard from the witnesses. We know the statistics on how many people were turned away and did not come back.
Rob Connelly from Birmingham raised concerns that the pilots did not reflect the community that he represents:
“One of our concerns with the pilots was that they did not reflect a large urban area, such as Birmingham, Manchester or Liverpool… It has been calculated that about 2% of people have not got ID. That is the equivalent of 15,000 people in my electorate.”––[Official Report, Elections Public Bill Committee, Wednesday 15 September 2021; c. 56, Q85.]
That is in Birmingham alone. A huge number of people—thousands, or tens of thousands—in cities up and down the country will have to go through the process of applying for this free voter ID card, on which there is no detail in the Bill. How can we be expected to vote for something on which there is no detail?
Returning to where I was before I took quite a lot of interventions, I think Ministers and Government Members are living in some kind of alternative reality. Perhaps they are watching too much Fox News. Our elections do not lack integrity. We consistently hear that in reports from the Electoral Commission and when our elections are observed from overseas. I am proud of our British democracy, and of the way we do elections in this country. I am confident that every Member of this House, whether I agree with them or whether we wear the same colour rosette at elections, and everyone who is sitting in this Committee Room was elected legitimately and got the most votes in their constituency. If any Member wishes to question whether they were legitimately elected to this House, I would be very happy to hear them say that they think they won unfairly.
Kemi Badenoch
I think the hon. Lady is confusing the purpose of the Bill. It is to protect the voter, not to ensure that our election results are kosher. I was elected with more than 25,000 votes. Anyone who was unable to vote lost their right. It would not have affected the legitimacy of my winning. The fact that she is saying that shows that she is still missing the point that many people lose their right to vote because another person has voted on their behalf. When I stood for election in 2010, I saw it happen at first hand. It is not reported, and a crime of deception is very difficult to see. She needs to acknowledge that point.
Cat Smith
I am a little confused by the Minister’s intervention. That would be reported because the person would have a tendered ballot and that information would be available. The point is—we heard it during evidence—that this policy has been brought in for UK Parliament elections with large electorates and we did not hear one witness say they thought a major election had been swung by mass fraud.
On the example of referendums, I campaigned in the EU referendum for remain, but I do not question that leave won because it would be unthinkable to enact personation fraud on such a scale.
Patrick Grady (Glasgow North) (SNP)
Is it not precisely the point that the EU referendum was not swung by a voter fraud of fake leave voters turning up and stuffing the ballot boxes, but by the voter fraud of telling people that there would be £350 million a week for the NHS, that food prices would go down and that the NHS would not be harmed—it was swung by the frauds that are now being proven as precisely that by the state this country is in?
Cat Smith
Sorry, Sir Edward. We do get very lively when we are debating democracy and elections, and whether truths are told in referendum campaigns, but I will not stray into that territory with the hon. Member for Glasgow North.
Never in British history has an election been undermined due to mass fraud, so I find the idea of spending millions of pounds to fix a problem that barely exists to be an obscene use of taxpayers’ money. I would like to see the Minister strengthen our democratic integrity by encouraging voter participation. Millions of people in this country are missing from the electoral roll. Regardless of whether they have the right voter ID, we do not have a process in this country of automatic electoral registration. We know fine well who is entitled to vote. We know huge amounts of detail from Department for Work and Pensions and Driver and Vehicle Licensing Agency records, and we make no effort to use that information to bring in a system of automatic voter registration to ensure our electoral rolls are as accurate as possible so that people have no barriers to participating in democracy.
I love elections. I am a democrat and I absolutely think democracy is a brilliant system, but it pains me that millions of our fellow citizens are not registered correctly, and there is nothing in the Bill that makes it easier for that to be brought in any kind of automatic way or to use big Government data in other ways to encourage participation. There is nothing about how we could engage with groups with disproportionately lower voter turnout, such as young voters. There is nothing about investing in our young people or schools to encourage young people to take part in democracy. I am a big supporter of extending the franchise to 16 and 17-year-olds, but I will not stray too far into that because it is not part of clause 1.
There is so much that the Bill could have done to extend democracy and encourage more people to take part. Instead, it puts up expensive barriers that cost taxpayers money and make it harder for legitimate voters to participate in our elections. I feel disappointed because when the Elections Bill was mooted, I thought the Treasury Bench had finally heard my repeated calls about the Law Commission’s report about solidifying our election law into a single cohesive piece of legislation that could modernise our democracy for the 21st century.
Instead, we get a Bill that is basically an attempt at voter suppression. It comes straight from the Trumpian Republican playbook from the US. Republican states are requiring photo ID at polling stations because they know it makes it easier for them to win elections. There is nothing in the Bill that says how accessing that voter ID will work. If we look to the US, we see that in some Republican states a gun licence is okay, but a student ID is not. I wonder what the political motivation for things such as that are. I would argue that the types of ID included in clause 1 of the Bill are totally—
Alec Shelbrooke (Elmet and Rothwell) (Con)
On a point of order, Sir Edward. Does the Bill relate to the American election system?
The Chair
No, but I have heard nothing yet from the hon. Lady that is out of order. However, she has made her point. You can make a point powerfully; you do not have to keep repeating it. But she is in order so far.
Cat Smith
Thank you, Sir Edward.
Millions of people cannot afford the privilege of carrying photo ID. Passports and driving licences cost money, so I would argue that this measure is a paywall to democracy. In all, 3.5 million citizens, which is 7.5% of the electorate, do not have access to any form of ID. Also, in the Windrush scandal we saw how members of some communities can struggle to provide official documentation and the severe consequences that that can have; that was backed up by evidence that this Committee heard from witnesses.
It is incredibly disappointing that the Government have continued to plough on with photo ID plans, seemingly turning a blind eye to the millions of people who they appear to be disenfranchising. The simple truth is that instead of holding water, the Government’s arguments in favour of photo ID contain more holes than a leaky sponge.
Today, we are considering clause 1, which—frankly—tarnishes our reputation as a leading democracy across the world. I make no apology for saying that it takes a leaf out of the Republican party playbook. So we will vote against it in the stand part debate.
Alec Shelbrooke
It is a pleasure to serve under your chairmanship, Sir Edward, and my—what a lively start we have got off to!
I intend to speak to the principle of the Bill, because we will come to amendments later. Despite my point of order, it is interesting that the American electoral system keeps being referred to, because it speaks to the wider issue of faith in elections. We have seen some disgraceful activity by the former President in America, which leads to an undermining of the basis of democracy.
There is no doubt that electoral fraud has taken place in this country, and I struggle to think of another crime that we would be willing to say we do not need to do anything about. I struggle to think of another crime where we say to the victims, “Well, it wasn’t many of you, so we’re not going to bother with it”. There is a very important principle about where we stand in this place.
Brendan O’Hara
The right hon. Gentleman seems to be saying that currently there is no law to stop electoral crime. Laws to stop electoral crime are in place at the moment and they seem to be working; as we have heard, Tower Hamlets and other elections have been refought. Does he accept that there are existing laws to tackle exactly what the Bill intends to tackle?
Alec Shelbrooke
I am most grateful to the hon. Gentleman for making that point, because, of course, Richard Mawrey said in his evidence that the threshold for proving in electoral law as it currently stands is too high to really get over the bar. By bringing in an extra set of checks and balances, we hopefully get away from the point that we would have to try to prove these cases to get over what is a very high electoral bar.
Tom Randall
Following up on the point about Tower Hamlets, is it not also worth noting that that election petition was brought by a small group of volunteers, working on a cross-party basis, who put up their own money and used their own time to investigate the issue in Tower Hamlets? If they had not done so, that entire piece of work would not have been done. That helps to demonstrate how difficult it is to get a petition such as that off the ground.
Alec Shelbrooke
I am most grateful to my hon. Friend for that intervention, because what we heard in evidence was that the financial threshold is exceptionally high for people to get over. We also heard in evidence that people did indeed risk their entire financial situation—they faced bankruptcy—to take that matter forward. There is an old phrase: criminal proceedings, or taking things to court, are free to everyone in this country just as everybody in this country is free to dine at the Ritz, but quite a lot of people are precluded when the bill arrives.
Alec Shelbrooke
I will give way to the hon. Gentleman, because I was about to come on to him.
Patrick Grady
The right hon. Gentleman was asking whether anyone could think of another crime in this country that people are just allowed to get away with. According to the House of Commons Library, the cost of tax evasion to the UK Exchequer in 2018-19 was £4.6 billion. When will this Government bring forward legislation to stop the vast amount of tax evasion going on in this country?
Alec Shelbrooke
The hon. Gentleman makes a very important point, which is why I am proud that this Government have closed the tax gap to the smallest in the G20—not least through the IR35 legislation that has just gone through, which is a very important piece of legislation. This Government have done more than any other to close that tax gap as much as they can.
However, the hon. Gentleman has almost proved my point about the importance of making sure that we have full faith in the electoral system, because he has once again basically said to the Committee that the referendum on EU membership was fraudulent because he did not agree with the political arguments that were made. There is a very fine line to be drawn here.
Politics is about disagreement—that is the strength of a democracy. I am not coming at this from a leaver’s point of view: I voted remain, and I made points in that election that were defeated in political argument. The referendum delivered a definite outcome, and it was then incumbent on this House to make sure that we delivered the outcome of that democratic referendum. We had another general election, which returned a Government who, despite not having a majority, had said that they were going to deliver that referendum result, and we then went through two and a half years of wrecking procedures in the House of Commons. I know, Sir Edward, that you will more than remember what happened over that period.
Alec Shelbrooke
The point I am making, drawing on the comments that have been made, is about faith in the electoral system, and this clause creates those levels of faith. It is all very well trying denial and complacency about where we are today, but we have to accept that we now have a mass media system in the world that makes it very easy for conspiracy theories to grow and be built very quickly. We must be in a position to ensure that our elections are deemed to be as safe and secure as possible.
I was disappointed on Second Reading that, when I intervened and asked Members about the recommendations of the Organisation for Security and Co-operation in Europe, those recommendations were pretty much dismissed out of hand. It was argued that they did not apply in this country, but the OSCE has made it clear in its reports that the security of our elections cannot be guaranteed without voter ID, and that is a very important point.
Those who have done election monitoring will know that many countries in the G20, let alone the G7, ask for voter ID, and I fear that we are in a period of history where democracy—which is a precious thing, and must always be developed and worked on—is under threat from those who refuse to accept election results. I am basing those comments more on what has happened in the United States than what has happened in this country, but what happened there is pervasive because of mass media. This Bill is trying to ensure that the perception of the security of elections, which is a very important thing, is clear in people’s minds.
From the very beginning, there has been entrenched opposition to the idea of voter ID. The hon. Member for Lancaster and Fleetwood—who I have a great deal of respect for, as she knows, and I enjoy serving on these Committees with her—talked about cuts to local government funding, but my council, Leeds City Council, is spending £10 million on the European city of culture campaign. The council bid for it before the referendum, then we left, so it is not getting the money and it is spending £10 million on it. It cannot say that it is being starved of funds when it is spending £10 million on something that is pretty irrelevant and certainly creates some lively debate in my home city.
When we come to debate the voting age—I know that we are not discussing that now—there will be some very important points to make about how the UN defines who is a child by saying that anybody under the age of 18 cannot fight on the frontline. Again, it appears that we are dismissing international bodies to suit the argument that is being made on the day.
I end my remarks by simply saying that this clause is a very important part of the Bill, ensuring that people have faith in our electoral system and that we do not allow a growth in voter fraud. We heard in evidence that bringing cases of voter fraud to court involves meeting an exceptionally high bar and that the financial constraints mean that people are not willing to bring those cases forward, so we cannot close our eyes and say that voter fraud is not happening because it is not getting to the courtroom. The proposals in the Bill go a long way to making people feel that when they cast their ballot, they have an equal say in those ballots, compared with people who may want to act criminally.
Brendan O’Hara
I always suspected throughout the passage of the Bill, whether on Second Reading or in our evidence sessions, that there was absolutely no evidence that voter ID cards would address an identified problem. In the evidence that we heard in four sessions over two days, not even the Government’s star witness said that personation was a sufficiently big issue to make voter ID cards essential to tackling it. Overwhelmingly, every single person who spoke to us about the subject said that the issue that needs addressing is postal vote fraud.
Paul Bristow
Perhaps the hon. Gentleman was not paying attention to Councillor Peter Golds during the evidence session, who turned around and said on a number of occasions that personation was a relevant thing in Tower Hamlets. Was the hon. Gentleman asleep during that evidence?
Brendan O’Hara
I assure the hon. Gentleman that I was not asleep; perhaps he should temper his language somewhat. I suggest he reads Councillor Golds’s evidence, which I will come to in a moment. He talked in such great detail about postal vote fraud: it was the biggest issue in Councillor Golds’s extremely detailed and voluminous file. In fact, he was reduced to anecdotal evidence about personation and a gentleman with large feet and red shoes. That is the nub of where he was. Every person and even the Government’s star witness, as I would class Councillor Golds, was unable to give any evidence that personation at polling stations was a major problem.
Aaron Bell
The hon. Gentleman dealt with Peter Golds there, but what about the case in Peterborough? Surely the requirement to introduce CCTV that Gillian Beasley told us about says it is not an anecdotal problem. It is a real problem. That step has had to be taken in Peterborough for deterrence. The Bill enables deterrence without the expense of CCTV.
Brendan O’Hara
Again, I will not use the language that the hon. Member for Peterborough used, but read the evidence. Gillian Beasley said that
“we have seen less personation”—[Official Report, Elections Public Bill Committee, 15 September 2021; c. 21, Q23.]
in recent years; she followed that up by saying that postal voting is her concern. The Government are looking in the wrong place and they know that. They are doing it for reasons about which one can only speculate.
Jerome Mayhew
There is one clause in the Bill on voter ID and there are five clauses on postal votes, so it is not right to say that the Government are looking at the wrong place. The Government are addressing all the issues with our voting system.
Brendan O’Hara
Again, it came out from the evidence session that postal vote fraud is the major issue and that is what is concerning the vast majority—if not all—of our witnesses.
Jerome Mayhew
I am grateful for the second opportunity to address this. We heard from Mr Mawrey QC, who is also an election judge. In his judgment in the Birmingham cases, which I referred to during the evidence session, he said that
“there is likely to be no evidence of fraud if you do not look for it.”
The whole point is that we need to look for it.
Brendan O’Hara
With all due respect to the hon. Gentleman, if a Government ignore the problem in front of their nose and then run about trying to find evidence of a problem when there is no evidence that that problem exists, I suggest they are wasting their time. The problem to be addressed is around postal voting. Richard Mawrey said that Birmingham, Slough and Woking were all cases that involved postal vote fraud; voter ID was “neither here nor there.”
Chris Clarkson
The hon. Gentleman says that the Government are wasting their time looking for something of which there is no evidence, but he also says that it is a waste of time to look for evidence of it. Would he clarify his position?
Brendan O’Hara
I absolutely will. My position is that there is no evidence whatsoever. Policy must be made on the basis of evidence. We have a limited time in this House in which to act and legislate. It is a waste of that precious time, I believe, for a Government to run around looking to create a problem to find a solution for. We should address the problems that we know exist, and those problems that have to be attacked.
Even Lord Pickles, in his evidence, said:
“I did not recommend photo ID”. ––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 16, Q13.]
He also said that fraud
“is not endemic within the system”,––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 8, Q5.]
However, somehow, Lord Pickles has now embraced this voter ID card with the zeal of a convert. It is further evidence of a Government with a solution looking for a problem.
Councillor Golds gave chapter and verse on the problems of postal voting in Tower Hamlets, and he was extremely convincing. Fair play to Peter Golds and the people who he has been working with—they have identified a serious problem—but to try to segue that into pretending that ID cards at polling stations will somehow solve what we saw at Tower Hamlets is frankly nonsense. It is not there.
Brendan O’Hara
I will in a moment. Ailsa Irvine, of the Electoral Commission, admitted that
“we are starting from a high base of public confidence.”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 46, Q64.]
There is confidence in this system—that the system works and is sufficiently robust.
Brendan O’Hara
I will in a moment. There is nothing perfect. There is no way on earth that we can stop every sort of crime, but this Government and this Committee should concentrate on identified problems, rather than seeking to find problems and then provide a solution as they see fit. Now, there were two hon. Gentlemen bobbing.
Tom Randall
Just briefly, on Councillor Golds’ evidence, he did make reference to the Jehovah’s Witnesses who had been marked as having voted on the register in the polling station when, of course, they would not have done. I appreciate that it was anecdotal evidence, but does that not go to the heart of how difficult it for someone to realise that they are a victim of electoral fraud? If a non-voter was a victim of personation, they would not go to look for it.
Brendan O’Hara
Nobody on this side of the room is saying that electoral fraud should not be punished. It absolutely should be punished. It should not be tolerated and should never be tolerated. Any victim of it deserves justice. However, that must be evidence-led and proportionate. This is neither.
Peter Gibson
I am incredibly grateful to the hon. Gentleman for giving way. I wish to provide clarity, in respect of the report by Lord Pickles. I have a copy in front of me. Recommendation No. 8 states:
“The Government should consider the options for electors to have to produce personal identification before voting at polling stations. There is no need to be over elaborate; measures should enhance public confidence and be proportional. A driving licence, passport or utility bills would not seem unreasonable to establish identity. The Government may wish to pilot different methods. But the present system is unsatisfactory; perfection must not get in the way of a practical solution.”
Brendan O’Hara
The hon. Gentleman is making my point for me. He did not recommend ID cards. He did not. If he mentioned taking a utility bill, he is not talking about registering for and receiving a voter ID card. As he said, he did not recommend it. In the first bit of evidence, Lord Pickles says he did not recommend voter ID cards.
Alec Shelbrooke
The hon. Gentleman has made the point, quite rightly, that there is electoral law in place that can be used to prosecute fraud, but we heard in evidence that there is a very high bar for people, not least financially. Prevention is better than prosecution. Preventing electoral fraud from happening in the first place is surely better than trying to prove it has happened and prosecuting.
Brendan O’Hara
At the risk of repeating myself, nobody is saying that we should not root out electoral fraud and that it should not be punished to the full extent of the law, but this Bill, and particularly voter ID cards, will not solve it. If there were a Bill in front of us that said, “We will beef up the Electoral Commission. We will give the police more powers of prosecution. We will allow greater transparency in how we find and prosecute people who are cheating the system,” it would have unanimous support, but the Government are trying to pretend that the introduction of voter ID cards will stop this, and that is simply not the case.
Fleur Anderson (Putney) (Lab)
Does the hon. Gentleman agree that there are different types of prevention of electoral fraud? One was outlined in the evidence from Peterborough. The witnesses said they could put up CCTV cameras, which would cost them nothing because they would borrow them from the police. That is a much more proportionate measure to prevent fraud, and there would not be the risk that it would stop people and put up a barrier to voting.
Brendan O’Hara
I could not agree more. We do not support ID cards, but that does not mean we are turning a blind eye to electoral fraud. There are proportionate ways of preventing it. This is not even a way of stopping it. We are not even saying that this is the wrong way to stop electoral fraud; this is nothing. This will achieve virtually nothing.
Cat Smith
The hon. Gentleman is drawing on the evidence of Lord Pickles, who did not say that photo ID cards should be required to prove identity; he also included utility bills. The forms of ID listed in this Bill are very limited. When international examples are given of where ID cards are shown, they are often from countries that have a national ID card, so does the hon. Gentleman share my concern that this may be a back-door way of bringing in an ID card, which I am sure many Government Members would wring their hands at? The Prime Minister himself said that he would eat it if he was ever asked for it. Should the Government not be a bit more up front about their real reasons?
Brendan O’Hara
There is an argument to be had about what the hon. Lady says about the introduction of ID cards. Perhaps the plan is to introduce ID cards via the back door.
The right hon. Member for Elmet and Rothwell spoke about the OSCE report. As I said on Second Reading, if we were inventing an entirely new system from scratch—if democracy was invented tomorrow in the UK—there would be an argument to be had and we could bat back and forth whether to do it, but to impose ID cards on to the system that we have at this stage, with all the democratic history that we have, smacks of something other than what we are being told it is for.
The politics of this is interesting. Rob Connelly, the returning officer from Birmingham, got to the nub of the political argument we are hearing when he said:
“I asked a senior politician…what evidence he had of personation, and his response was, ‘I haven’t actually got any, but I just know it goes on.’”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 55, Q82.]
That sums up the argument that we heard on Second Reading and in Committee this morning. There is no evidence—it is a hunch—and policy cannot be made without evidence. There is no evidence of this. Politicians believe it happens, and therefore we must go and do something about it. We gather the experts—the great and the good—and they tell us that it is minimal and inconsequential: it is neither here nor there. However, the Government decide to plough on regardless of the evidence.
Gavin Millar supported Rob Connolly when he said:
“It is not a problem of any great consequence in our system.”––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 108, Q165.]
He explained that it is actually the most inefficient way to indulge in electoral fraud. The risks are enormous, the chances of detection are much greater and it is such a tiny margin that it will make no difference. The Government are looking in the wrong place, and they are pursuing it on a hunch. He was right to say that the Government should focus on registration instead of voter ID cards.
Cat Smith
The hon. Gentleman is making a point about following the evidence, but should the Government not also follow what is going on in the courts? Is he aware of the case in Braintree, where there was a voter ID trial, of Neil Coughlan, who had no voter ID? The Supreme Court is due to hear that case next year. The Committee might end up legislating on the matter before hearing what could be quite a useful verdict from the courts about the way in which the policy disenfranchises voters.
Brendan O’Hara
I thank the hon. Lady for making that point. I was unaware of that case, but it does seem to suggest that we are getting ahead of ourselves somewhat.
Moving on, what is the point of an evidence session if we are going to ignore the evidence? I refer the Conservative members of the Committee to the words of Baroness Davidson on voter ID—perhaps the only time her words were wise. I will not repeat what I said on Second Reading; it is there for all to see if they wish to go back and find it. Suffice to say, Baroness Davidson was correct in her assessment of voter ID cards in May, and she is correct today.
Alec Shelbrooke
The hon. Gentleman seems to have a slight contradiction in his opinion. He said that there was minimal voter fraud and that we should take no notice of it. He has picked on one Conservative politician out of hundreds and used that as an argument.
Brendan O’Hara
I rise slowly to my feet, because I have no idea what the right hon. Gentleman is talking about. I will sit down as slowly as I rose if he wants to make that point again.
Alec Shelbrooke
I am merely making the point that to dismiss one argument because there are not lots of people coming forward with an allegation, to then pick on one person out of hundreds of Conservatives and say, “Therefore, this is why we should not do it,” seems slightly at odds with the balance of the argument.
Brendan O’Hara
Absolutely not. The idea that I would take any political lead from an unelected baroness is utter nonsense. I simply used her as an illustration of the deep divisions in the Conservative party.
Cat Smith
In the intervention the hon. Gentleman took, he was accused of using as evidence one Conservative politician. Have the Conservative members of the Committee not just taken the example of one Labour constituency party in Tower Hamlets, when there are 650 constituencies?
Brendan O’Hara
A good point well made. What was striking about the evidence session was that Conservative Members were reduced to asking the witnesses leading questions. If it had been a court, the judge would have slapped them down almost immediately. It was reduced to, “Motherhood and apple pie is good. Do you agree?” and “Yes, we do.” It was nonsense. The evidence session showed that voter ID cards are a priority for nobody but this Government.
Almost all the witnesses referred to the need to tighten up postal votes. That was summed up by Gavin Millar, who said that is
“hugely inefficient compared with other forms of fraud that have been perpetrated, particularly since postal voting on demand”––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 108, Q165.]
The Government are looking in the wrong place. There is no evidence that personation is widespread; that is based purely on anecdote. I went into the evidence sessions believing that the measure was a solution seeking a problem; I came out of them absolutely convinced of it. We will support the Labour party when the Committee divides.
The Chair
Before I call the next speaker, it is not in order to be tediously repetitious. The debate is proceeding extremely slowly. On the lack of evidence and on other points, if I have heard it once, I have heard 100 times. Try to keep speeches to the point and pertinent to clause 1. I call Aaron Bell.
Aaron Bell
I will endeavour to follow your strictures, Sir Edward. It is a pleasure to serve under your chairmanship and to follow the hon. Member for Argyll and Bute. It is also a pleasure to welcome new Committee members, not least the Minister in her new role.
The hon. Member for Argyll and Bute said that the Bill is a solution in search of a problem and that we are looking in the wrong place. The Government are looking everywhere; that is what the Bill is doing. We are looking not only at the issues that he raised about postal voting fraud, but everywhere, including in areas where we know that, because personation is, by definition, a covert activity, the problem is far greater than we can possible expect to see from the numbers reported.
Indeed, as Richard Mawrey said in evidence, the cases that he has tried are undoubtedly the “tip of the iceberg”. That is why the clause is so important. We all strive to get more people to participate, and we all go out and knock on doors to encourage people who have never voted before to vote—ideally, for us—but although participation is important, integrity and confidence are absolutely paramount as well. The constant fearmongering about participation is in marked contrast to the denial of the existing issue of people’s confidence.
I will briefly address the point about America. I know the Bill is not about America, but since it was mentioned by the hon. Member for Lancaster and Fleetwood, I draw the Committee’s attention to a May 2021 academic paper by Cantoni and Pons, published in the Quarterly Journal of Economics. I will not elaborate too much, but the title is, “Strict Id Laws Don’t Stop Voters”. They analysed different laws introduced in US different states, and found that
“the laws have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation.”
I completely endorse what my right hon. Friend the Member for Elmet and Rothwell said about Trump: acceptance of the result is a completely different issue from the security of the ballot. However, trying to make out that we are following some American Trump-style approach misses the point and completely misleads the public about what we are proposing. We are proposing a proportionate measure to safeguard the system and address the vulnerability that the Electoral Commission itself has identified. Ailsa Irvine said that “there is a vulnerability” in the system—that is what is being identified.
We have talked about how personation is a covert activity, and that is what the clause is for. In the light of the evidence from Tower Hamlets, from Peterborough and from around the country, it should not come to the point of having to install CCTV, and, as my hon. Friend the Member for Gedling said, brave individuals should not have to put their own money on the line, and not get it back, to deal with such cases.
On the pilot data, which was mentioned, the estimate by the Electoral Reform Society, which we should acknowledge is a political lobbying group, were exaggerated and inaccurate. The data from returning officers across all five participating local authorities showed that 340 electors were asked to return with the correct identification and did not subsequently return. Not all 340 people may have been legitimate electors, as my hon. Friend the Member for Heywood and Middleton pointed out, but the 340 figure represents 0.16% of the votes cast, and the experience in Northern Ireland shows that that will fall as people get used to the system.
We cannot argue, as the Opposition have, that because we have big majorities in this place we do not need voter ID, and then say that voter participation is so crucial that one person’s vote makes a difference. What matters is the overall integrity of the system, and the way to deliver that is everywhere: in the postal vote system, in the proxy vote system and on polling day.
Tom Randall
May I also welcome the Minister to her place. Given that time is short, I shall be brief and make four further points, two of which relate to the evidence.
I would like to recommend some additional reading to the Committee, if they have not read it, which is a report prepared for the Electoral Commission in January 2015 entitled “Understanding electoral fraud vulnerability in Pakistani and Bangladeshi origin communities in England: A view of local political activists”. The report was prepared by Maria Sobolewska, Eleanor Hill and Magda Borkowska of the University of Manchester and Stuart Wilks-Heeg of the University of Liverpool. Neither of those universities nor the Electoral Commission could be accused of being Tory shills.
The authors make some interesting points going into the detail of this problem, including on the question of personation that has been raised a number of times today. They spoke to witnesses and acknowledge that the risk of personation was thought to be significant, with vulnerabilities identified, given the habit that people have of asking others to cast a vote on their behalf and the complex naming systems used in those communities.
The report acknowledges that there must be a trade-off between accessibility to the electoral system and electoral integrity. That notwithstanding, one of a series of recommendations in the report is that some form of voter identification should be introduced. I do recommend that as additional reading.
To return to the point raised at the beginning by the hon. Member for Lancaster and Fleetwood, I agree with her when she talks about being proud of our electoral system and its integrity. The Victorians gave us the secret ballot. While the idea that as a Briton I can walk into a polling station, simply proclaim who I am and then be given my vote—which is my right—is something that I approve of, it perhaps speaks to the system that the hon. Lady would like to exist rather than the system that actually exists.
Cat Smith
I thank the hon. Gentleman for giving way, because he is talking about rights and I think we both agree that there is something fundamental about that. We are both proud of our British democracy and we are both proud of that right that citizens have to cast a secret ballot, brought to us by the Victorians. On the issue of rights, the Government ran pilots on the voter ID trials, and the Equality and Human Rights Commission warned that if voters became disenfranchised as a result of particularly restrictive requirements, it could violate article 1 of protocol No. 1 to the European convention on human rights, which was incorporated into domestic law in the Human Rights Act 1998.
Given the representations to the Committee, particularly the evidence from Gavin Millar, who said that there would inevitably be challenges to voter ID as incompatible with the European convention on human rights if the Bill was introduced as it currently stands, does the hon. Gentleman share my concern that, proud as we are of our British democracy and human rights, there is a potential threat here that the Government should be taking more seriously, so they should be looking into expanding the list of relevant ID?
Tom Randall
That relates to the fourth point that I had planned to make. The hon. Lady also made remarks about these measures being Trumpian in nature, looking to voter suppression in the United States. However, she voted remain, and I know that our colleagues in the Scottish National party want Scotland to be an independent country at the heart of Europe. There are countries like Germany, the Netherlands, France and Italy that do require voter ID at polling stations. I am uncertain—
Tom Randall
If I might just finish this point. I am uncertain as to how a measure that is commonplace on the continent will be a violation of the European convention on human rights. I suggest that, as good Europeans, we should support this measure.
Cat Smith
I am glad that the hon. Gentleman has moved on to the point about European comparisons because the countries that he referred to have national ID cards that are given out free by the state, and people are used to presenting them to access all kinds of things. In this country we do not have ID cards, we are not asked to produce ID cards, and I am pleased that that is the case. That is part of what makes us British. Does he not agree with me that the voter ID law threatens that proud British tradition? On the examples that he gives of states with ID cards, is that a potential back-door way of bringing in ID cards, and would he support that?
Tom Randall
An electoral card will be issued free of charge. I am sure that between the passage of this legislation and the introduction of that scheme there will be a lot of publicity surrounding it, to make sure that the new system that is to be introduced will be well understood. The Government are used to widespread publicity schemes. I see the point that the hon. Lady makes, but I am sure that can be addressed in the fullness of time.
The point was made that no significant election has been swung or affected by electoral fraud. I gently suggest that the London Borough of Tower Hamlets, a London authority only 18 minutes from here on the tube, which has a directly elected Mayor and a multi- million-pound budget, is not insignificant when it comes to elections—it is very significant.
For my final point, I declare an interest as a former chairman of Poplar and Limehouse Conservative Association. I know Councillor Golds personally. I speak to him as a friend as well as a witness to this Committee, and he made a point to me in writing afterwards. I will read the email from him, which stated:
“When we were preparing the grounds for the petition we investigated personation. We were a small, cross party group acting voluntarily and at our own expense. I was doing most of the legal digging and the amount of time required to prove personation would have been enormous. We had evidence via marked registers but quickly found canvassing and potentially obtaining statements would have been incredibly time consuming. People who are disengaged from politics and voting are unlikely to wish to make statements for submission to a court of law. We did refer to some of the worst cases in various statements but personation…was not one of the nine grounds that we concentrated on.”
Tower Hamlets has come up a lot in this debate so far. The absence of personation as the main ground in that case should not be interpreted as meaning that there was no personation in that election. The point is that investigating it is incredibly difficult. The fact that it was volunteers working on it, who stumped up their own money, which they have not got back, is perhaps one reason why that ground in that claim was not gone into in such detail.
Brendan O’Hara
Does not the hon. Gentleman think that it would have been helpful in his lengthy evidence session if Peter Golds had actually said that to the Committee, rather than saying it as an afterthought in a private letter? That is surely the whole point of holding an evidence session.
Tom Randall
I wish Councillor Golds had had a whole evidence session to himself, but unfortunately he had to share one and we had to listen to other witnesses, which I shall not go into now, but I think that was an unfortunate timetabling measure.
There is a fundamental weakness in the system as it stands. For that reason I will support this part of the Bill.
Patrick Grady
It is always a pleasure to serve under your chairmanship, Sir Edward. I echo the welcomes to the Minister and Members who have joined the Committee.
The phrase “voter ID is a solution in search of a problem” has been heard several times since the start of the Second Reading debate. That is a quote that my hon. Friend the Member for Argyll and Bute did not want to explicitly attribute to Baroness Davidson, who was once the coming thing in the Tory party. She was going to be the leader or a Minister. She was going to save them all and save the Union. Now that those future leaders of the Conservative party, the 2019 red-wallers, are here arrayed in front of us, demonstrating to the Whips, the Minister and everyone else their value, I am sure they will not be overlooked quite as much in the next reshuffle.
The previous Minister on the Committee made the pertinent point that we must be careful about the use of the word “disenfranchisement”. To disenfranchise someone is to actively take their vote away; where once they were previously eligible to vote, they are now no longer eligible. They made the point that we must be very careful about casually suggesting that voter suppression, which I will get on to later, is the same as disenfranchisement—which is fair enough. However, that also means that we must be quite careful when we use other terms—terms such as “voter fraud”, which has been bandied about on the other side of the House in reference to a whole range of electoral malpractices, some of which we heard about in the evidence sessions. In fact, voter fraud specifically refers to personation and the casting of the ballot.
As has been quoted back several times from the Committee session with Richard Mawrey:
“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,”.––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 14, Q13.]
That is the point about personation. It is a point that has been made repeatedly by hon. Members from Opposition parties, and that has not been challenged or proven false by Conservative Members. My hon. Friend the Member for Argyll and Bute quoted another witness as saying that personation was an incredibly inefficient way of swinging an election and making oneself the victor. It carries with it an extremely high risk; someone only needs to do it once to be tapped on the shoulder and kicked out of the election campaign and into jail.
Chris Clarkson
Would the hon. Gentleman agree with me that, technical merits of personation aside, any one instance of personation is a negative input into our democratic process? Anybody stealing a vote, misusing a vote or representing themselves as somebody else should be a cause for concern.
Patrick Grady
Absolutely. However, we have repeatedly heard, throughout all the evidence sessions and debates, that when personation has been identified it has been called out and punished, the perpetrators have been brought to justice and, if necessary, candidates have been disqualified and election results overturned. What would swing elections is disincentivising turnout—making it more difficult for marginalised voters to turn out, particularly in marginal constituencies, and putting up barriers to electoral participation. That is exactly what voter identification will do. There have been disputes about how many people do or do not have adequate voter ID, as required under the terms of the Bill, but even the most conservative figure—with a small c and capital C—is that there are at least 2 million people across the United Kingdom without adequate voter ID. At an average, I think that works out at around 3,000 per constituency. There are plenty of us Members sitting on majorities of considerably less than that. It is clear to see the difference that could be made if suddenly those people were unable to cast their votes.
The Minister said right at the start that everybody who wants to vote will have the opportunity to do so. That is just a simple statement of fact. That is the case now; everybody who is currently eligible and wants to vote has the opportunity to do so when an election comes around. What will happen with this Bill is that barriers will be put in their way. What if someone turns up at quarter to 10, on a wet Thursday night, and it turns out they have left their voter ID at home? What if their passport has expired—will that be valid? What if they have recently got married and their surname has changed—what happens in that situation? There are all kinds of barriers that have nothing to do with anyone’s background or minority status.
Cat Smith
I was about to raise the issue of women who marry and need to change their surname on IDs and other documents. However, the hon. Gentleman has triggered in my mind another thought. Kate Robson, who works for me, left the purse containing all her ID documents on the bus. If that had happened on polling day, she would not have applied for the free voter ID as she had a driving licence in her purse—but that purse had been left on the bus. As it happened, all ended well and she was reunited with that document, but it shows that it is not just those who do not have photo ID who would be disenfranchised; so too would those of us who mislay documents. I am sure that all of us in this room are very organised, but people who mislay documents do exist, and they might only remember that it is polling day on their way home from the gym at 9 o’clock, when they will not have time to go back for their ID. A greater number of people will be disenfranchised than just that percentage who do not have ID.
Patrick Grady
Absolutely. It will put up barriers and make that democratic participation more difficult and more challenging.
Tom Randall
On a small point of clarification, under proposed new paragraph (1H), “specified documents” include documents
“regardless of any expiry date”,
so the expired passport would be valid.
Patrick Grady
That is incredibly helpful. People across the country with expired passports will be breathing a sigh of relief, unlike the people across the country who, for whatever reason, do not have passports or who, for all kinds of reasons, find it difficult to make that approach.
We have heard about the pressure that there will be on electoral administrators to deal with the inevitable surge in applications. We have heard about some of the accessibility challenges that will be faced by people with different kinds of impairments when applying for photo documentation. There are all those kinds of barriers. Nobody is questioning the agency or ability of minority communities to apply for voter identification; the point is that many people are already disproportionately without existing forms of voter identification and so are already disincentivised from taking part in the democratic system.
Cat Smith
I thank the hon. Gentleman for being so generous with his time. I feel moved to mention that my grandfather, who sadly is no longer with us, did not have any form of photo ID because he was illiterate. The idea of having to approach the local council and fill in a form in order to get an ID document—he just would have stopped voting. There is a group of electors that we have not talked about so far, either in evidence or in Committee this morning—those constituents that we represent who would be filled with dread by the idea of approaching the council and being asked to fill in a form. They will do that only if it is absolutely essential to their survival. The reality is that my grandad would not have applied for a voter ID card because he would have been too embarrassed to go to the council and confess that he was illiterate.
Patrick Grady
The hon. Member is absolutely right. Precisely those concerns have been raised by Age UK, which quotes the Cabinet Office’s own research as showing that
“2% of people aged over 70, equivalent to 180,000 older people in Great Britain, do not hold any of the forms of identification that the Bill proposes would be accepted when voting…Having to present photographic identification at the polling station would ‘make voting difficult’ for 6% of people over 70, or around half a million people living in Great Britain…4% of people aged over 70…less likely to vote…These figures are likely to be underestimated as the Cabinet Office’s funded research did not include a representative sample of older people in Great Britain.”
A whole range of minority and segregated groups in society will be affected by this.
Chris Clarkson
Just to expand on that point, would the hon. Gentleman say that having to present a vaccine passport in order to use goods and services, for example, would present a barrier to people engaging in the economy?
The Chair
Order. We are not discussing vaccine passports. Let us remain focused on the Bill.
Patrick Grady
Thank you, Sir Edward. I think there is a slight difference between someone voluntarily taking part in different parts of the economy and someone exercising their fundamental right to vote. The Prime Minister himself has not ruled out vaccination certification, so we will wait to hear what those on the Government side of the House have to say about that a couple of weeks down the line.
The point that the hon. Member for Heywood and Middleton touched on there is the divergence across these islands. He is perfectly entitled to make that point. It is interesting, because in the devolved areas, rather than making it more difficult for people to vote, we have been making it easier to vote and more proportionate. We will get on to more of this later in the Bill, but in Scotland the franchise has been extended to 16 and 17-year-olds, to all EU nationals with settled status and to refugees, and nobody is being asked to turn up with voter identification in the devolved areas. We will have people on increasingly different franchises—[Interruption.] I am glad this is of such interest to Government Members, because they are supposed to be defenders of the Union, and they want to keep this glorious country, as they see it, together and keep us in a United Kingdom. Actually, what they are doing is increasing divergence and showing that Scotland and Wales can adopt a far more liberal, all-encompassing and participative approach to democracy. Here it is being made more difficult and increasingly narrow. That is a challenge for people who want to protect the Union.
Brendan O’Hara
Scotland extended the franchise to the groups that my hon. Friend mentioned, but one that he did not mention was people in prison with 12 months or less to go on their sentence. Would I be correct in saying that, by extending the franchise, Scotland achieved its higher ever turnout at the elections in May and ensured that people have faith? It is not just about creating rules; it is about creating faith in the system. The Government do not have to go down this draconian ID card route to create faith in the system; they just need people to believe that what they elect is what they get, and Scotland is doing that.
Patrick Grady
My hon. Friend is absolutely right. Compare that to the “Oh no, here we go again” response to the sequence of snap elections and uncalled for and unprepared for ballots that have happened in the UK in recent years, because of the utter chaos and incompetence shown by the Conservatives.
My hon. Friend brings me on to my next point, which the Labour spokesperson touched on. We as elected politicians are not impassive observers, as perhaps parliamentarians can be on other aspects of legislation, where we can take an objective view. All of us have an active interest in who elects us and how we get elected. I join the hon. Member for Lancaster and Fleetwood in paying tribute to election administration staff in councils up and down the country—later in the Bill we will talk about the role of the Electoral Commission and who gets to mark our own homework. If it has been tough south of the border, it has been even more so north of the border, where there has been another referendum, local elections and the devolved Parliament elections, on top of all the UK-wide ballots and plebiscites that have had to be administered.
I also pay tribute to our party activists and volunteers, as I am sure everybody in this room will—perhaps we can get one point of consensus. They are in many ways the backbone of the electoral process and political engagement of this country. They are the people who stand outside the polling stations in the pouring rain and the blazing sun—sometimes in Scotland that can be within the same 10 or 15 minutes. We can have all four seasons in one day or even just a couple of hours—that is certainly true of the last couple of elections we have had. These people play an incredibly important role. If there was widespread personation, with people turning up in dodgy rain jackets, funny moustaches and thick eyeglasses to repeatedly impersonate other voters, it would kind of be noticed. That is the point of having the system we do.
We have polling agents, counting agents and voluntary observers. That is a hugely important part of trust in the system. It happens at counts as well, when we watch how the ballot papers come out and how they are sorted and so on. We have heard examples of electoral malpractice and intimidation outside polling stations. Exactly: we know about it because it has been witnessed and reported. It has been covered on the news, because it makes for a bit of drama if people are shouting at each other outside a polling station—the cameras like to go and see that. It should not happen, and that is why people have been punished for it.
Cat Smith
Another thing that has been observed outside polling stations in recent elections is really long queues of people turning up just before 10 pm. They are allowed to vote if they are in the queue before 10 pm. If people also have to show ID and have it verified by the polling card, what does the hon. Gentleman think that could do to the queues outside polling stations? How does he think that might incentivise people to actually turn out and vote?
Patrick Grady
There is a bit of a challenge. People do get put off by long queues. Under social distancing in Scotland, the queues were even longer and it was taking even longer to vote. I commend people who are prepared to wait, but imagine the frustration of someone who has waited all that time in a queue and then finds out that they do not have a valid ID, or they thought it was in their pocket, but it turns out it was not, and there is no provision to even cast a provisional ballot, which we may get on to later.
The system that exists just now, pre this Bill, is the system that got us elected. There is a real danger that what is going on here is undermining the confidence in that system. If confidence in the system is undermined, people will simply not turn out at all, irrespective of whether they have a voter identification. They will sit on their hands and say, “You’re all the same—a plague on all your houses! My vote doesn’t make a difference,” and they will not turn out at all.
Fleur Anderson
I agree with the hon. Gentleman’s concern that this is a disproportionate Bill and that it will stop people turning out—they will just sit on their hands. We will not know whether they have gone or not. From the research we have on the pilots, there was an indication of a real disparity between different areas, age groups and other groups in terms of the inclination, or disinclination, even to go and vote. For example, in Woking nearly all electors said it would be easy to access ID and they would trundle down with it easily, but in Pendle only seven in 10 people said it would be easy to access. For non-voters, only 88% of people said they would find it easy; for those who vote, it is 95%. That is a real disparity. White electors were more likely than BME electors to think it would be easy to find identification for future elections, by 92% to 87%—another huge disparity. Younger electors, too, were less likely to say they would find it easy to access identification for future elections: 84% for 18 to 34-year-olds, compared with 93% for 35 to 54-year-olds. As a mum of adult children who should be allowed to vote but often cannot find their ID, I agree with the differences there are between different parts of the electorate.
Patrick Grady
The hon. Lady is absolutely right, and it is interesting that we have not heard more about the detail of those pilots from the Government. They were their own pilots—it was the Government who ran them. They seem happy to pick up evidence of electoral malpractice in any areas that cause them concern, but less interested in picking up the outcomes from the pilots that they themselves commissioned.
As the hon. Lady mentioned some of the disparities in terms of voting ID, I will pay tribute to Maurice Mcleod, who gave very impressive evidence to the Committee under the most sustained and pressured questioning of any of the witnesses we heard from. He said, and he was quoting the Government’s own data, that
“while 76% of white people hold a form of relevant photo ID, such as a driver’s license or a passport, when it comes to black people, about half do: 47% do not hold one of those forms of ID.”––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 89, Q134.]
The statistics the hon. Lady quotes from the pilots appear to be borne out by other evidence we have heard.
Jerome Mayhew
I am grateful to the hon. Gentleman for giving way. He may recall that I questioned the witness on that, and he agreed that the evidence from 8,500 respondents to the IFF review was that, in fact, 98% of the population in general have relevant ID, and that when it came to BAME respondents, it rose to 99%. He also agreed with me that on that basis he was somewhat reassured.
Patrick Grady
There we go: that is the benefit of having these evidence sessions, and we should thank, congratulate and treat with respect all the witnesses we heard. I echo the points of order that were made earlier on: I hope we get to have more evidence sessions when it becomes appropriate, so we can hear about the extension to the Bill’s remit that the Government have made.
Brendan O’Hara
Looking back at the evidence given by Maurice Mcleod, it got to the point that the Government are aiming at the wrong target with this Bill. Does my hon. Friend not agree with Maurice Mcleod and, indeed, Gavin Millar, who both said the Government should prioritise a registration drive, increasing participation and opening up? As Maurice Mcleod said:
“I do not really understand why you are not automatically registered. I remember turning 18; you get your national insurance number because going out to work and paying your…tax”.––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 88, Q133.]
However, people are not automatically registered. Does my hon. Friend not think this Bill should look at automatic registration rather than seeking to disenfranchise people?
Patrick Grady
Yes. I hope as the Committee progresses we will be able to look at precisely that issue. That brings me quite neatly on to what I hope will be my final point of concern: what is really needed is a massive voter education drive. We need a new wave of civic engagement, helping people to understand the critical role they play in democracy and decision making in this country. As the right hon. Member for Elmet and Rothwell said, irrespective of our views on a matter, we as politicians should be able to express those views, and try to convince the voters and win as many of them over to our side of the argument as possible. That is what is vastly needed, and that need for civic education and massive voter registration drives in order to encourage as many people as possible to take part came out in quite a lot of the evidence, as well. That requires us to live up to our promises, not make false promises and pretend that things are going to happen.
The Chair
I am sure that the next speaker will want to give a short speech based on the principle of voter ID.
Paul Bristow
I will keep my remarks brief. I just want to take hon. Members on a bit of a journey to Peterborough.
Paul Bristow
No, no—a very brief one. Hon. Members have doubted the evidence of voter fraud and personation, as a very small thing, but I encourage them to look at some of the evidence we have from Peterborough. When walking down busy streets in Peterborough, we often see large crowds gathering, with people chanting, singing and handing out various leaflets. That is not on a Saturday when we are watching Peterborough United; that is on a Thursday afternoon, when people are marching towards the polling station. We have had evidence that a number of councillors and activists in Peterborough who have gone to prison as a result of voter fraud are now acting as tellers and counting agents, participating in the democratic process.
A lot of people have talked about the advantages of the CCTV that was offered by the chief executive of Peterborough City Council. I ask hon. Members who have said that this was a good thing why they feel it was necessary for Peterborough City Council to install CCTV at polling stations. It was there in order to combat personation.
Brendan O’Hara
Does the hon. Gentleman not believe that Peterborough council has the right to implement a bespoke solution for what it may or may not perceive to be a particular problem, but that having a blanket ID card from Truro to Thurso and beyond is completely and utterly disproportionate? If Peterborough council wants to introduce CCTV, then let it. I imagine that Argyll and Bute Council has no intention of introducing CCTV or anything else, because we believe our democracy is quite robust.
Paul Bristow
The people of Argyll and Bute probably have great satisfaction with, and faith in, their electoral processes, down to the quality of their Member of Parliament. I am sad to say that in Peterborough, people perhaps do not have that faith, so CCTV is there in order to give people faith in the security and integrity of the ballot. That is the point I am trying to make, because I think that rather than suppress democracy, voter ID cards give people greater confidence in the electoral process and the idea that their vote will count. We hear that not just in Peterborough, but in Tower Hamlets, Oldham, Birmingham, Slough, and across the country. These are not isolated incidents: they happen across the country, and they undermine our democracy.
Ordered, That the debate be now adjourned.—(Rebecca Harris.)
Elections Bill (Sixth sitting)
Wednesday 22nd September 2021
(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 September 2021 - (22 Sep 2021)
The Committee divided: - Ayes: 9 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Minister of State, Department for Levelling Up, Housing and Communities (Kemi Badenoch)
To say that this has been a lively debate would be seriously understating the passion and arguments made by Members on both sides of the Committee. Speaking as a former Treasury Minister, it is a refreshing change from annual Finance Bill Committees, where I am used to saying lots of things to silence and often bemusement from Back Benchers. That has been a real change and I have very much enjoyed listening to the arguments.
I want to thank all Members who participated in the debate for making so many interesting points. I thank my hon. Friends the Members for Newcastle-under-Lyme, for Peterborough, for Heywood and Middleton, and for Gedling, as well as my right hon. Friend the Member for Elmet and Rothwell for making brilliant points in their speeches, with which I wholeheartedly agree. They all said things far better than I could, given how new I am to the brief. I also enjoyed the interventions from my hon. Friend the Member for Darlington, the hon. Member for Glasgow North, my hon. Friend the Member for Broadland and the hon. Member for Argyll and Bute. I did not agree with the Opposition Members’ points, but they were well argued. I still think that they are wrong but I admire the passion of the shadow Minister, the hon. Member for Lancaster and Fleetwood. This is clearly a brief she knows very much about and it is nice to see that level of engagement with the topic. However, a few points were made in the debate that I wish to reply to; I will not speak for very long.
The hon. Member for Glasgow North talked about weaknesses in the research. I know the moment has moved on, but I want to emphasise that the Cabinet Office’s research is the most comprehensive to date and is nationally representative. It shows that 99% of people from ethnic minority backgrounds surveyed owned an accepted form of identification. It seemed from his speech that the hon. Member for Argyll and Bute felt this was a Bill about introducing a new voter ID card. Yes, that is part of it, but it is mainly about photographic identification. I felt that there was often conflation between people not having photographic identification and needing a voter ID card as opposed to everybody else needing one. That is not the case. I remind the hon. Gentleman that only those without existing documents need a voter card.
The hon. Member for Lancaster and Fleetwood talked about this being a new case for identity cards. I remind her that the coalition Government scrapped the last Labour Government’s plan for ID cards in 2010 and we have no plans for identity cards. The 2018 and 2019 voter identification pilots were delivered with a voluntary, locally issued notification. There is no compulsion here and that same model of an optional free voter card is what we are going to introduce.
Finally, I just wanted to reject completely the accusation from the hon. Member for Lancaster and Fleetwood of voter suppression. This is a political topic; we are talking about elections and MPs get very lively. We enjoy having these discussions, but it is important not to alarm people when a simple procedural Bill is being put through. People are disenfranchised if their vote has been used by someone who should not be doing so. It does not seem to be something that is of concern to Opposition Members, but we take that very seriously. As I said in my opening speech, just because someone’s house has not been burgled does not mean they should not lock the door. We can take precautions for things, even if their likelihood, depending on geography, is more or less. We should also have something uniform in bringing in this sort of Bill. We cannot just do something for Tower Hamlets and then wait until something happens in another borough.
Cat Smith (Lancaster and Fleetwood) (Lab)
Would it be appropriate at this point to ask some specific questions? I hope the Minister can respond about the application process for the voter ID cards. Obviously, it would be administered by local councils, but will there be a core standard of expectations of, for instance, the hours councils will be expected to offer the service? Will people have to apply in person,
Kemi Badenoch
I think that those are things that we can work out as we progress. We all know that those sorts of details would not end up in a Bill such as this one. We also need to be able to give flexibility. What we can say is that we want to encourage as many people as possible to take up these cards, and we will do whatever we can to ensure that that is the case.
Let me go back to the point that I was making about voter suppression. We hear again and again, particularly from Labour, that any change to boundaries or elections is all about keeping voters away and gerrymandering. I completely and utterly reject that. I was not a Member in 2014, but I remember that Labour claimed that the roll-out of individual voter registration in the country was going to suppress voters. Labour Members said that it was terrible, that we should not do it and that we should instead allow the head of household to register everyone. As we said earlier, that was about bringing things into line with Northern Ireland, and it is worth mentioning that the electoral register in the 2019 general election was at its highest-ever level. The last thing that Labour said was going to be suppressing voters did not do that, and I am absolutely confident, given all the evidence we have seen and heard, that this will not do so either.
Kemi Badenoch
I thank the hon. Lady for her question, but she is deviating from the point I am making about voter suppressions. The point I was making is that the last thing we did, which Labour claimed was going to suppress voters, turned out not to do so. We have never heard any acknowledgment from the Opposition that it was actually a good thing to do and strengthened our democracy. On the point about registration, the hon. Lady will know that I have just come to this brief. We can deal with the Government’s plans, and what I will be doing over the next few years, outside the debate on clause stand part.
The claims about voter suppression are bogus. They have been shown to be false by the Northern Ireland experience and the 2018-19 pilot. There is no reason why we should not go through with this, which is why I urge all Members to let the clause stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Fleur Anderson (Putney) (Lab)
I beg to move amendment 24, in schedule 1, page 63, line 2, leave out from “the” to end of line 22 and insert “Electoral Commission.”
This amendment would make the Electoral Commission, rather than returning officers, responsible for producing and administering electoral identity documents.
The Chair
With this it will be convenient to discuss the following:
Amendment 26, in schedule 1, page 63, line 29, leave out “A registration officer” and insert “The Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 27, in schedule 1, page 63, line 30, leave out “registration officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 28, in schedule 1page 63, line 34, leave out “a registration officer” and insert “the Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 29, in schedule 1, page 63, line 35, leave out “officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 30, in schedule 1, page 63, line 37, leave out “officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 31, in schedule 1, page 64, line 3, leave out “a registration officer” and insert “the Electoral Commission”.
This amendment is contingent on Amendment 24.
Amendment 33, in schedule 1, page 65, line 1, leave out from “the” to end of line 3 and insert “Electoral Commission.”
This amendment would make the Electoral Commission, rather than returning officers, responsible for producing and administering anonymous elector’s documents.
Amendment 35, in schedule 1, page 65, line 10, leave out “A registration officer” and insert “The Electoral Commission”.
This amendment is contingent on Amendment 33.
Amendment 36, in schedule 1, page 65, line 11, leave out “registration officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 33.
Amendment 37, in schedule 1, page 65, line 15, leave out “a registration officer” and insert “the Electoral Commission”.
This amendment is contingent on Amendment 33.
Amendment 38, in schedule 1, page 65, line 16, leave out “officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 33.
Amendment 39, in schedule 1, page 65, line 18, leave out “officer” and insert “Electoral Commission”.
This amendment is contingent on Amendment 33.
Amendment 40, in schedule 1, page 65, line 21, leave out “a registration officer” and insert “the Electoral Commission”.
This amendment is contingent on Amendment 33.
I remind Members—this is important—that the scope of this debate is the series of related proposals to make the Electoral Commission, rather than returning officers, responsible for electoral identity documents, so can we keep to that subject and not stray into other countries?
Fleur Anderson
Thank you very much, Sir Edward, and I welcome the Minister to her place.
Every vote clearly counts, and I think we can all agree on that. For example, in the Derby City Council election earlier this year, Darley ward was won by one vote. That one vote changed who was in charge and who had the majority on the council, moving it towards a Conservative group. Government Members would be happy about that, but the main point is that each vote counts, so when looking at this Bill, we have to ask whether this is a disproportionate measure that is more likely to stop people voting and being able to cast their one vote—all the votes count—and whether it brings in far too many bureaucratic barriers while not stopping the main problem with our elections. As shown by the result of the voter ID pilot evaluation, most people think that low turnout is a much bigger issue in our elections than any issues about fraud.
Amendment 24 changes the overall control of the central system to have the Electoral Commission working in conjunction with local authorities, rather than each local authority running its own electoral changes. That would ensure much more consistency across the country in delivering the provisions of this Bill and the capacity of local authorities to deliver them, because they would be working in conjunction with the Electoral Commission, and it would give the Commission an additional set of powers to work with local authorities. The amendment tries at least to mitigate some of the worst parts of bringing in electoral ID. Economies of scale will produce cheaper, better and more consistent outcomes, delivering an ID card that everyone can get as easily as possible and when they need it, which I think we would all agree is the outcome we want. With something as precious as our democracy, there is simply no room for irregularities, disparities or differences between local areas in how well electoral identity documents are produced, which will inevitably be the case if this monumental task is left solely to local authorities to do in different ways and to administer on their own.
This amendment asks the Minister to look further into the issue of whether local authorities should carry out this task within a centralised system. Looking at the Northern Ireland example—we will be looking at that example a lot during our consideration of the Bill in Committee—this service is centrally administered by the Electoral Office there, so this amendment would bring us in line with best practice in Northern Ireland, where they are 20 years ahead on this issue. As we heard last week from the chief electoral officer for Northern Ireland, that set-up has been relatively successful in ensuring consistency and driving down costs over time, and with the cost of delivering voter ID currently estimated at £120 million, that surely has to be a very important issue. It is clear that it is cheaper and more efficient to have a centralised system, so I do not know why the Bill does not seek to embed such an example of best practice.
When the Minister responds, would she tell us how she intends to ensure consistency and parity between local authorities in delivering this Bill? How will she prevent a postcode lottery of provision, whereby some councils are able to provide free IDs in one way, and other councils—perhaps due to the higher, unmanageable cuts that they have faced—do not have the staff or resources, or decide to resource things differently, leading to a difference in delivery? Would she also tell us whether an ID card from one local authority will be transferable to another local authority? If it is not, that will be a barrier. I am especially thinking about people in my constituency who move about within London quite frequently, who may not know they have moved between boroughs and, facing an election, would bring a card issued by another local authority to the polling station. Can that card be used from local authority to local authority?
Turning to the issue of capacity, there is a huge danger and concern that if this Bill is passed without significant amendment, local electoral registrations teams will be crushed under the weight of the additional administrative burden. We saw this in the pilot: the local authority was asked to develop an IT system, and obviously it is going to make much more sense to have a central IT system, so that electoral registration officers do not have to come up with their own IT system and then work out all the ways and means by which they are going to deliver this Bill without help from the Electoral Commission. That is why this amendment seeks to put the Commission in that role.
Peter Gibson (Darlington) (Con)
Does the hon. Lady agree that local authorities are best placed to do that as they are on the ground and have the experience of issuing concessionary bus passes and disability blue badges?
Fleur Anderson
That is an important point. I absolutely agree with the hon. Gentleman, and that is why I said that it must be delivered by the Electoral Commission in conjunction with local authorities. Local authorities know the best place to open up their surgeries, or wherever they will be delivering the cards. They know the best times and the best ways to do it locally, so having a national system that is delivered locally in conjunction with local authorities would work best. I agree that there has to be local provision, because local authorities know their local people best.
It is important to place this issue in the context of the past 10 years. From 2010 until the onset of the pandemic, local authorities lost 60p out of every £1 that the Government provided to spend on local services. Already cash-strapped councils will suddenly be expected to oversee and administer hundreds of thousands of photo ID cards, in addition to processing last-minute applications. We saw in the pilot and know from experience that, unlike us, a lot of people do not spend a lot of time thinking about elections; they think about elections on the day. There was a huge surge of additional applications in the run-up to the election, so there needs to be surge capacity, including on the day itself. Will councils be adequately resourced to do that? Will they have recourse to the Electoral Commission to get the support they need to deliver the cards?
Paul Bristow (Peterborough) (Con)
What was the hon. Lady’s reaction to the evidence we heard from Gillian Beasley, the chief executive of Peterborough City Council, and the returning officer of Birmingham City Council, who both said that they felt well placed to administer this change?
Fleur Anderson
I was as surprised as the witnesses from Peterborough and Birmingham councils when the chief electoral officer from Northern Ireland said that she needed 70 additional staff during the election period. Up until then, the evidence from Birmingham and Peterborough was that we would need a handful of additional staff through the year to give out ID cards, and then a surge, but to hear that 70 additional staff were needed in Northern Ireland was, I think, illuminating and concerning for some of the council staff who were giving evidence. It is a good point, well made.
Will the Government resource our local councils to deliver this policy? Can the Minister guarantee that there will be no cuts to frontline services because of the need to transfer resourcing to the production and delivery of ID cards? All year round, young people especially will be getting this card. At the moment, they have to buy a provisional licence to be able to go to a nightclub, so they will definitely want this card. It is a free resource all year round, so there will be demand for it all year round, but in the run-up to an election there will obviously be an additional surge. Will that fall on the local councils? Can it be guaranteed that Government funding will cover that? Local authorities and electoral registration officers will potentially be burdened with the additional time and money required to enfranchise 35 million overseas voters, at the same time as creating a whole new requirement for processing free voter ID cards for domestic voters, and that is on top of the Boundary Commission changes and all the other burdens being put on our electoral registration officers.
On top of that, the Dissolution and Calling of Parliament Bill, by its very nature, creates uncertainty around the timing of general elections, as the Prime Minister will be able to choose the date. The extremely short timetable in the lead-up to elections, as well as plans to shorten that window, has the potential to completely bury the administrative system behind elections, which will potentially result in those very precious electoral ID cards not being given out and people not being able to vote.
Local election authorities are already discovering that there is an increasing burden, and all the returning officers in the May 2019 voter ID pilots had to recruit extra staff, so it is not controversial to say that others will have to do so. It is not always straightforward. Mr Connelly from Birmingham City Council told us in evidence last week:
“As it is, we struggle to recruit and retain staff, who come to the polling station literally for one day a year.”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 61, Q96.]
Recruiting and retaining staff all year round will be a challenge. All those staff will need to be trained, and that requires more time and money.
This Bill needs to guarantee two things. First, it needs to guarantee that the responsibility for delivering the voter ID programme falls on a central body that ensures consistency across the country. The amendment would make it the Electoral Commission. The responsibility should not be squarely on the shoulders of local returning officers and electoral registration officers, who are already stretched to their limit.
Secondly, the Bill needs to guarantee that local electoral authorities are properly resourced and given what they feel they need to carry out their new duties and responsibilities. During the evidence session I was concerned to hear that local authorities had not already been asked for their estimates of what that would cost. The Government cannot yet know what it will cost to fund that adequately because local authorities have not been asked. If they are not properly funded and staffed, they will collapse under the weight of the new electoral regime; it will not work.
In her response, I would like the Minister to assure not just me but returning officers and registration officers up and down the country that she understands the concerns and limited capacity of local election registration teams. I would like her to guarantee that they will be given all the resources that they will need, and to emphasise that no frontline services will be cut.
I should also be grateful if the Minister would shed some light on the following questions. Will there be a national IT system for producing the ID cards? What will be the role of the Electoral Commission in supporting local authorities as they gear up to deliver this? How much will one elector ID cost the taxpayer? We heard that, in Northern Ireland, costs differed when production was outsourced and when it was insourced, but what is the estimate for the rest of the UK?
Has the Minister consulted local authorities? I know that she has not been in her place for very long, but have there been consultations with local authorities about how elector IDs will be administered and physically printed? Will local authorities need special printing facilities, for example, or will a normal colour printer be sufficient? Such things will make a big difference to local authorities. Will voters have their photos taken at the local authority when applying for the card? How will that work? Will women wearing face coverings be forced to take them off, and has that been built into how the system will be administered?
The evidence that we have heard so far demonstrates convincingly that a centralised approach to administering voter ID is cheaper, is more consistent and efficient, ensures that local authorities will not be pushed over the edge but can deliver the system, and ensures that every single person who can vote is able to vote. I hope that the Minister will take amendment 24 seriously and commit at least to embedding these principles in the Bill and the guidelines that follow.
Kemi Badenoch
I will respond to the hon. Lady’s points first before coming to the substantive reason that the Government cannot support amendment 24.
The hon. Lady asked how we will ensure consistency in provision between local authorities, and my hon. Friends the Members for Darlington and for Peterborough made very good points on that. The broader point is that local authorities have to administer very complicated elections anyway. The hon. Lady knows that in London elections there are multiple things happening at the same time, and London can cope. Local authorities do not need to worry about the support that they will get to deliver this. In me they have a Local Government Minister who will be very much on top of these issues.
The hon. Lady asked a lot of technical questions—about how the cards would be printed and so on. I am afraid that I cannot answer those today, but those are things that we shall be working towards. The hon. Lady asked whether ID cards would be transferrable from one local authority to another. They will be.
Interestingly, the hon. Lady acknowledged that there might be a surge in demand for the ID cards because of young people wanting to use them to go to the pub, but it is important to clarify that they are not a form of free identification. They are for electors who do not have existing photo identification, and they will not include date of birth.
Amendment 24 would mean that the responsibility for producing and administering the voter card and the anonymous elector’s document would rest with the Electoral Commission rather than with electoral registration officers, as the draft Bill provides. We cannot support the amendment, because the Electoral Commission is an advisory and regulatory body; it is not an administrative one. It does not have the experience or capacity to carry out that function. To take that away from local government, which has been doing that for centuries, and pass it to the Electoral Commission would be completely wrong. Such an approach would represent a significant shift in the way we deliver elections. How can the commission guide and oversee a process that it participates in the delivery of? The Electoral Commission will play a key role in communicating the change to voters ahead of polling day, and must be able to focus on fulfilling those existing duties. I am not in a position to make those changes to the implementation of the policy. As I said, I have every faith in local government to develop and deliver local services that meet the needs of their communities, so we will not support the amendment.
Question put, That the amendment be made.
The Chair
I remind Members that the next amendment relates to places in which people can apply for voter ID, so again it is quite narrowly focused.
Cat Smith
I beg to move amendment 25, in schedule 1, page 63, line 22, at end insert—
“(2A) The registration officer must take steps to ensure that a person may apply for an electoral identity document in the following locations in the relevant local area—
(a) local government office;
(b) library;
(c) GP’s surgery;
(d) Member of Parliament’s constituency office.”
This amendment would enable people to apply for an electoral identity document at a range of places in a local area.
The Chair
With this it will be convenient to discuss amendment 34, in schedule 1, page 65, line 3, at end insert—
“(2A) The registration officer must take steps to ensure that a person may apply for an anonymous elector’s document in the following locations in the relevant local area—
(a) local government office;
(b) library;
(c) GP’s surgery;
(d) Member of Parliament’s constituency office.”
This amendment would enable people to apply for an anonymous elector’s document at a range of places in a local area.
Cat Smith
The amendment would enable people to apply for the free electoral identity document at a range of places within a local area. The amendment, and the related amendment, would widen the responsibility for administering the electoral identity card to include libraries, GP surgeries, local government offices and the constituency offices of Members of Parliament. Under the change, other public services would be able to promote and administer the registration for free electoral IDs. For example, people could hand their form in and be issued with the card at a jobcentre while doing some other activity. The same could apply to GP surgeries, where patients could fill in a form while they waited for their appointment.
Jerome Mayhew (Broadland) (Con)
It is an interesting suggestion to use GP surgeries in that way. Has there been any consultation with the General Medical Council on the views of general practitioners about their being used in that manner?
Cat Smith
Absolutely none whatsoever—[Laughter.] The purpose of the amendment is to make the point that the Bill is very prescriptive about the locations at which one can apply for a free electoral ID, but there are no requirements on when, and on what days of the week, that place would have to be open, or whether one would have to attend in person or could apply by post. There are so many gaping holes in the legislation. The purpose of my amendment is to provoke a discussion about whether we can make applications for free ID cards a little more accessible. It is somewhat murky at the moment.
Expanding the list of places where one could apply for an electoral ID would also widen the opportunities for a publicity or advertisement campaign to inform electors about the change in Government policy to require ID to vote, and potentially allow people to think about it before an election comes around. For instance, someone waiting for a GP appointment who sees a sign on the wall saying that this is a location at which they could apply for a voter ID card might think, “Well, I’ll do it now.” That might take pressure off the administration officers at local councils. We heard in evidence about the rush that happens just before elections take place.
Tom Randall (Gedling) (Con)
I see that the Labour party’s amendment includes
“Member of Parliament’s constituency office”
as one of the locations. There is usually a distinction between party political resources and parliamentary resources. For example, some MPs share their office with their local Conservative association; I imagine there are similar arrangements with the Labour party. On the basis of her amendment, would the hon. Lady be happy for a member of the public to pick up their electoral ID card from the office of their local Conservative association? Surely that is a blurring of the lines, which is what the Opposition are trying to avoid.
Cat Smith
I am glad to have provoked this debate. I suppose I was thinking about my own constituency office, which is not shared with a political party. When we receive our budget from the Independent Parliamentary Standards Authority, it is very clear that we are not meant to use our IPSA-funded office for party campaigning, and that was very much in my mind. But are we not trusted parts of our community? We sign passport forms and verify identities in other ways. It is meant to promote the idea that we are those trusted individuals, and perhaps we could make it more accessible on an individual level.
Patrick Grady (Glasgow North) (SNP)
The hon. Lady makes the point that it is not uncommon for any of us to verify a passport application for our constituents. All that we are verifying in that situation is a likeness, and the amendment only refers to applying for ID cards at our offices. I do not think anyone is suggesting that MPs’ offices would be issuing them.
The other commendable aspect of the amendment is that it links to a discussion that we will get to later in our scrutiny of the Bill, about automatic voter registration, and that is about being able to apply to vote in the first place. For those of us that want to promote that principle, it makes sense that if we have to accept that voter IDs will be issued, they should be made as accessible as possible, precisely to achieve the kind of increase in participation that everybody seems to agree is worthwhile.
Cat Smith
I agree wholeheartedly with the points made by the hon. Gentleman. Will voters be able to apply for electoral IDs online, regardless of who they are applying to or who is printing it? Will the application form be available online or will it be paper-only? Does the Department have any expectation of how long an application process will take? Will there be any minimum standards? Will the ID card be delivered to the elector’s home address, or will they have to come in person to collect it?
The amendment not only demonstrates the importance of making free electoral ID cards as accessible as possible, but gives us the opportunity to explore whether local authorities have the capacity to administer those IDs, on top of administering the election, given the backdrop of cuts to local authorities over the last decade. A point was made earlier about councils administering other forms of identity documents, but in two-tier council areas that is not always the case. In Lancashire, for example, the county council administers blue badges, but the borough or city council—the second-tier council—would administer electoral IDs. It is important to recognise the diversity across these islands in the way that local government is organised, because there are slight differences and responsibilities lie in different places. As we see the patchwork of devolution in England develop, we shall increasingly see local authorities having very different powers.
Returning to the amendments, local authorities need to have clarity about what they are being asked to do and how that would work. Is there any opportunity to ask other public bodies to support their work, in order to take the burden off our electoral administrators? The Association of Electoral Administrators has already expressed its concern about the huge burden of such a technical administrative task being placed on already overstretched local authorities. Local authorities are being expected to deliver photo ID cards, alongside the additional burden of registering millions of new overseas electors, on top of boundary changes. That is an awful lot of work.
Can the Minister understand the concern here, and will she provide some assurances to our dedicated electoral returning officers up and down these islands? Voting should not be a postcode lottery; there should be equality wherever we are. We must see measures introduced to ensure that obtaining an elector card is as easy as possible. These may include expanding the number of locations at which voters can obtain a card and measures to ensure consistency in administering the scheme in different locations.
Kemi Badenoch
Amendment 25 would require registration officers to ensure that eligible electors could make an application for an electoral voter identity document at a specified list of locations—a local government office, library, GP surgery or Member of Parliament’s constituency office. We cannot agree to the amendment, because it is too prescriptive—needlessly so. The Government share the aim of ensuring that the process for applying for these documents is highly accessible, but the proposed amendment is poorly thought out. Registration officers have the responsibility and local knowledge to identify the most suitable locations for voters to access the voter card process. They must be allowed to exercise that expertise and responsibility. They are best placed to understand their local community and the needs of voters and will have the local knowledge and expertise to ensure that the voter card process works for all voters. I think that answers the questions from the hon. Lady and will reassure her. Registration officers are the ones who know what is happening on the ground. We have every confidence that they will be able to deliver this.
The proposed locations may be suitable in some areas. However, without local knowledge they could disrupt other services and at the same time fail to address the needs of voters, whose preferences and characteristics are likely to be best understood by their own local authority registration officer. That local knowledge and expertise, as well as the diligence with which registration officers fulfil their legal responsibilities to electors, has been proven time and again with the successful delivery of a wide range of electoral events.
The hon. Member for Lancaster and Fleetwood asked whether electors would be able to apply for a local voter card. The amendment would place a requirement on electoral registration officers to act in locations over which they have no control and where the owners or managers could refuse to comply. That is another reason why we cannot support it. There could be many reasons why those responsible for such buildings might not want to act as a venue for applications, and there has been no consideration of that or investigation of issues that could arise, which leads to the point that my hon. Friend the Member for Broadland was making. A GP surgery may not wish to increase footfall through their buildings during flu season, as it could lead to an increase in infections among vulnerable patients.
The amendment would also place a requirement on those locations and their staff to allow such applications to be made, raising a number of questions about someone’s rights to access such a location for that purpose. It may be that someone is excluded from the premises for good reasons, or there may be reasons why right of access should not exist to a particular location. The requirement of GP surgeries in particular cannot be supported; it will place an unnecessary additional administrative burden on them and draw focus away from their healthcare duties.
The question of how electors will be able to apply for a local voter card is very important and I completely understand the need to look into it. The detail of voter cards and anonymous elector documents will be issued through secondary legislation, so we will have further opportunities to discuss it, but it is important that we get the details right both for voters and for those who administer our elections. We are and will be working closely with a range of stakeholders to develop and refine the necessary detail. I will update the House on the progress with that as soon as we are in a position to. It will be vital for electors to know how and where to apply for a voter card if they need one. The hon. Lady is right to bring that up. Awareness-raising campaigns delivered by the Electoral Commission will ensure that voters are aware of the new requirements and they will have sufficient time to prepare. For those reasons, we cannot support the amendment.
Cat Smith
The Minister has addressed some of my concerns. My amendment is probing and I do not intend to press it to a vote, but I hope the Minister can recognise that it is not very satisfactory for many of these questions to be answered in secondary legislation. It would be helpful for the Committee’s deliberation if at some point she could at least indicate whether it will be possible to make applications online or whether they will have to be made offline. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Fleur Anderson
I beg to move amendment 32, in schedule, page 64, line 27, at end insert
“though that period may not be less than 15 years from the day on which it is issued.”
This amendment would mean that an electoral identity document would be valid for at least 15 years.
The Chair
With this it will be convenient to discuss amendment 41, in schedule 1, page 66, line 5, at end insert
“though that period may not be less than 15 years from the day on which it is issued.”
This amendment would mean that an anonymous elector’s document would be valid for at least 15 years.
I remind Members that these amendments are about the period of validity of the voter ID card.
Fleur Anderson
Amendment 32 looks at the detail of how long an election ID card would be valid, which is important to know. Obviously, this will be coming out in secondary legislation, but it is important to know whether there will be an annual expectation to renew the ID card, or whether it will be valid for five, 10 or 15 years. The amendment suggests 15 years, but if the Government are open to the card being valid for longer, we would be supportive.
The reasoning behind the amendment is simple: in the real world, voter ID will be a barrier to voting for many people, and it will cost the taxpayer a significant amount of money, so the number of times that electors should be expected to apply for the card should be at an absolute minimum. Making these documents valid for 15 years is a reasonable and sensible proposal. A passport needs renewing every 10 years, so it is not at all unreasonable to push this further, to 15 years. It will come round quickly enough, and it is worth noting that such a period would cover only three general elections.
Chris Clarkson
I recently renewed my passport, and it was quite heartbreaking not being able to use the same photo, because I have changed quite a bit in the past 10 years. Given that the purpose of this is to issue photo identity, does the hon. Lady agree that people change physically over the course of 15 years? A young person who registers at the age of 18 will look considerably different at the age of 33.
Fleur Anderson
Some of us will change more than others. A balance needs to be found between renewing too frequently, which could be a barrier to voting, and recognising that people’s appearance changes over time. That is why people over 18 have to renew their passports every 10 years, but I think 15 years would be far more reasonable.
Cat Smith
The hon. Member for Heywood and Middleton has triggered a thought in my mind, because we were told in Committee this morning that a passport, even one that has expired, will still be classed as valid ID. A passport is valid for 10 years. If it has expired, it could be 15, 20 or 25 years old. Does that not create some confusion for polling clerks?
Fleur Anderson
In Northern Ireland, people can take an expired form of photo ID and it will still count, so there is no limit there. A limit of 15 years does not apply in Northern Ireland, so perhaps a longer period of time should be looked at. It would be good to know the Minister’s thinking on that.
Mandating renewal of these documents any less than every 15 years would have a huge and disproportionate impact on groups that are already vulnerable to disenfranchisement, and it would only increase the costs and administrative burdens on local authorities—as we have already discussed, they are substantial. The Equality and Human Rights Commission has previously warned the Government that
“voter ID will have a disproportionate impact on voters with protected characteristics”,
and this could increase that opportunity. We saw with the Windrush scandal how some communities struggled to provide official documentation, which had severe consequences. The EHRC has warned that if voters were
“disenfranchised as a result of restrictive identification requirements”,
this could violate article 1 of protocol 1 of the European convention on human rights.
The LGBTQ+ community are at risk of disenfranchisement and have been in contact with Members about the Bill. Stonewall is concerned that such proposals could prevent many LGBTQ+ voters, as well as voters from other marginalised groups, from engaging fully and fairly in democratic processes, and we should all be concerned about the issues that it raises.
Chris Clarkson
Could the hon. Lady develop her thinking on that? There are at least four pieces of photo ID in my wallet, and it will be no surprise to anybody here that I am very gay.
Fleur Anderson
For many trans, non-binary and gender non-conforming people, the photograph, name and/or gender marker on their legal documents may not reflect their appearance or gender identity, which goes back to the earlier point about changing identity. The introduction of voter ID could inadvertently result in such people being turned away from voting stations or simply deciding not to vote, for fear of this happening. They may not want to apply for the card. Of course, the argument against this is the same for some groups—for example, members of the trans community may significantly change appearance.
Stonewall helpfully points out that the solution is not to put people through the process of applying for voter ID before every election, but to roll out training to presiding officers and related staff to ensure that they operate in a manner that is LGBTQ+ inclusive; to put in place specific measures to ensure that LGBTQ+ people can vote; and to ensure that any equality impact assessment of such measures specifically includes the needs and experiences of trans people, gender-non-conforming people and anyone who is concerned about their appearance being on an identity card that must be shown when they go to vote.
Aaron Bell (Newcastle-under-Lyme) (Con)
Given that the Committee has accepted, after a Division, the necessity of voter ID, surely the hon. Lady’s suggestion of a 15-year period does not help deal with the point she is raising. The more up-to-date ID somebody has, the less likely they are to have such problems at the polling station.
Fleur Anderson
With our amendments, the Opposition are trying to mitigate the worst impact of having a voter ID. Frequently having to re-apply for a voter ID card will have a disproportionately bad impact, potentially stopping people from voting. I do not think any of us want to see that. This is about getting the right balance; is three, five, 10, 15, 20 or 50 years the right balance? I will be interested to hear the Minister’s views. It would be out of step with best practice to require voter ID cards to be frequently renewed, and there is also a disproportionate cost. How much should administering them cost?
Peter Gibson
Does the hon. Lady consider that 10-year periods for a British passport or driving licence are perfectly acceptable and modest?
The Chair
I think Fleur Anderson was speaking. There might also have been an intervention going on.
Fleur Anderson
Thank you very much, Sir Edward, and I thank the hon. Member for Darlington for his memorable intervention—I certainly remembered it—on whether we should match 10-year passports, and whether that would be easier for people to remember. That might be part of the Government’s thinking. I would like to know what their thinking is. Can the Minister confirm how long the free elector ID card will be valid for? Are there plans for that? Does she agree that a free elector ID must last more than one parliamentary cycle or risk disenfranchising people by asking them to reapply between elections, or even at every single election? Finally, what is her policy on ID card renewal?
Kemi Badenoch
Amendments 32 and 41 would mean that voter cards and anonymous elector documents would be required to be valid for a period of 15 years from the date of issue, and I am afraid we cannot agree to that. Primarily it is important that the documents are renewed on a regular basis to ensure that they remain a good likeness of the holder, as the Bill states. I note, however, as other Members have mentioned in interventions, that driving licences and passports are typically renewed every 10 years. The hon. Member for Putney makes a good point, but we are considering the most appropriate time before expiry. We will bring forward our proposals in secondary legislation, which will then need to be approved by Parliament through the affirmative procedure.
Hon. Members have been judicious in trying to open up the list of specified forms of identification to include insecure methods, but they are limiting the flexibility of the method upon which those without access to a form of accepted identification could rely. For example, the amendments would prevent any consideration of an electoral returning officer issuing any kind of temporary voter ID card or anonymous elector documents, should that be appropriate. As such, that would work against being able to provide mechanisms to support people who need a short-term solution to showing identification, which I know the Opposition are particularly concerned about.
The hon. Lady raised inclusivity. We will of course ensure that the process is inclusive. The Government take those issues very seriously—I see that as the Minister for Equalities. We are doing a lot of work in terms of ID documents and gender recognition certificates to support trans people. As we have made changes throughout the last 12 months or so, we are seeing applications increase. Often all the things that we say will stop applications and participation are measures that improve and increase it.
I hope that the hon. Lady will forgive me, because I did not have enough time to write down her last question and so have forgotten it. I hope that I have been able to address some of the issues that she raised. However, in order to maximise the options that we can consider as we take forward our implementation plans, the Government cannot support this amendment; it is just too restrictive for the Bill.
Fleur Anderson
I am disappointed that the Government will not support the amendment. I hope to see it resurface in secondary legislation and to see at least 15 years as the length of time. First we need to see some research into the impact of different renewal dates and the cost of renewing to be informing the Government’s decision. This was a probing amendment, so we will not push it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Cat Smith
I beg to move amendment 42, in schedule 1, page 66, line 5, at end insert—
“13BF Application for electoral identity document on Government website: Great Britain
The Secretary of State must ensure that a person eligible for an electoral identity document under section 13BD or an anonymous elector’s document under section 13BE is able to apply for that document on the gov.uk website.”
The amendment would allow voters to sign up for free electoral ID when engaging with numerous Government services and not simply when they are registering to vote. The amendment is similar to amendment 25 and connected amendments, so I will not repeat those arguments, but the change would see voters reminded about voter ID rules and reminded to apply for a free elector card when they engage with gov.uk services. For example, when people were applying for universal credit on the Department for Work and Pensions website, they would be asked, at the end of the application process, if they wished to apply for a free electoral ID. Of course, this is assuming that people will be able to apply online. There has not been clarity from the Minister so far this afternoon on that, so perhaps this is an opportunity for her to make it a little clearer.
Kemi Badenoch
The amendment would place a legal obligation on the Government to create a new digital application system, specifically on the gov.uk website, to enable eligible electors to apply for either the voter card or the anonymous elector’s document. We cannot agree to the amendment, although we recognise the positive intentions behind it. The issue of online applications was raised earlier. I want to reassure hon. Members that the Government share the aim of ensuring that the process for applying for these documents is highly accessible. We are working with numerous partners to ensure that is achieved. In particular, I would like to highlight the excellent work done by the various charities and organisations that advise us through the Government’s accessibility of elections working group.
However, the amendment would not help us achieve our goal. First, it is pre-emptively prescriptive. We need to be able to evaluate and consider the best vehicle for online applications. It may be better for online applications to be done via local authorities’ individual websites, or perhaps even a website specially designed for this purpose. We do not want to be restricted at this point, or to be required to fund a particular approach now, when there might be a much better option later. I have been clear that the Government’s intention is to continue working up the best model for implementing these measures. I acknowledge very much the arguments made for an online solution. I used to be a tech developer myself, so I completely see why this amendment was tabled, but for now we cannot support such a narrowly drawn approach.
Cat Smith
I am pleased to hear about the Minister’s tech background. I hope that in this new role she might find ways to make many aspects of the electoral system more digital friendly—something for which the Opposition have been calling for a long time. Although I do not feel that her response fully grasps the seriousness of the situation or the passion by which we want to make things more accessible, this was a probing amendment and I do not wish to push it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Fleur Anderson
I beg to move amendment 43, in schedule 1, page 66, line 5, at end insert—
“13BF Prohibition of outsourcing of administration and production of electoral identity documents
The administration or production of an electoral identity document under section 13BD or an anonymous elector’s document under section 13BE may not be outsourced to a private company.”
This amendment would prohibit outsourcing. It would stop outsourcing being built into the way in which the Bill is administered. So many things are being left to secondary legislation, but not this. The amendment also comes from the evidence we heard from Northern Ireland especially. If we are to mitigate the worst effects of the introduction of voter ID, we have to learn from experience and follow best practice, and all the best practice and experience that we have available points to bringing the administration and production of voter ID in-house from the start. The Northern Ireland example demonstrates that beyond doubt. We heard from our witness last week that initial records showed that the outsourced cost per card in Northern Ireland was £14. It was then brought in-house at a cost of £2 a card, which was found to be a much better way of running the elections. That is an impressive reduction, brought about by the in-sourcing of a key public service.
Patrick Grady
This is an incredibly valuable amendment, and the hon. Lady can be sure of the SNP’s support if she presses it to a vote. We have seen in recent months the Government handing out private contracts in a quite relaxed way to people they are particularly friendly with. That is absolutely the last thing we would want to see happen in the production of voter ID cards.
Fleur Anderson
I thank the hon. Member for his intervention. Trust in outsourcing has recently been shaken among the electorate and constituents. Building it into the Bill would be a mistake.
The voter ID card will be an individual’s ticket to democratic participation, which is their voice; it is sacrosanct. It is therefore a process that the Government and the public sector must retain control of. Otherwise, we risk undermining trust in the entire system.
Tom Randall
Is it not the case that we outsource some quite important documents, such as our passports and banknotes, which are produced by De La Rue? If we can trust those things to the private sector, why could something like an electoral document also not be outsourced, if necessary?
Fleur Anderson
I thank the hon. Member for his intervention. Given recent examples, I just do not think we can trust this to external contracts. Why not build the best into our system? Why not learn from Northern Ireland, where that in-sourcing really worked? That is the closest example we have for this contract, so why not look to the experience there and learn from it?
Jerome Mayhew
If the financial information from Northern Ireland had been the other way around, would the argument not also have been reversed? In other words, are we not really worried about value for money and not whether this is in-sourced or outsourced, and should not the Bill remain silent on the matter?
Fleur Anderson
When secondary legislation is developed, which will probably cover this matter, perhaps we can see what the evidence base is. We can then look at different potential contracts and what the costs would be, and the hon. Member is correct that that should inform our decision.
Most recently, there was real concern about sharing our NHS data and GP surgery data with a private company. That had to be scrapped during the summer, because there was so much concern about sharing that data. I think we should learn from that experience as well. With voting, people are even more concerned about where their data goes, who will be producing the voter ID card and what will be done in that area, so we have to be even more concerned to ensure that the Government are in control of the matter. That is the way to keep our integrity.
I shall finish my remarks by asking the Minister some questions. Does her Department plan to outsource the administration and production of voter ID to private companies? Have there been some pre-contracting conversations already? If she does not know, will she commit to following best practice in Northern Ireland and ensuring that this essential service is kept in-house, or at least to making that the default position in future negotiations?
I hope that the Government will support the amendment, which is not controversial. It is in line with best electoral reform practice in our kingdoms, as shown in Northern Ireland, and most importantly it is the right thing to do for our democracy.
Kemi Badenoch
The amendment would ensure that private companies could not take any part in any aspect of producing or administrating voter cards and anonymous elector’s documents. We cannot agree to the amendment. It is an entirely unnecessary restriction, clearly raised for ideological reasons, with no consideration for the practicalities. I remind Opposition Members that the private sector already plays numerous roles in elections—it prints documents, ballot papers and poll cards; it manufactures equipment such as ballot boxes and polling booths; and it delivers poll cards and postal votes. My hon. Friend the Member for Gedling made the point well; we on the Conservative Benches can spot socialism coming from a mile away, and this is nationalisation through the back door.
Brendan O’Hara (Argyll and Bute) (SNP)
Whether this is about socialism or whatever else—we can debate that—we have just come out of a personal protective equipment scandal. So much of this Bill has been predicated on public trust and on building public trust. In light of the fact that the public have been so horribly stung in that PPE scandal, we have to rebuild trust. The idea of the landlord of a Minister’s local boozer saying, “I can make those cards for you,” runs a shiver down our spines. In the interests of building public trust, this surely has to be taken in-house, because if it is not we will be in grave danger of repeating the scandal we have seen with PPE.
Kemi Badenoch
I thank the hon. Gentleman for that straw man argument, which shows that he did not listen to what I just said. Does he seriously think that all the ballot papers and poll cards that are being printed are being produced by mates—
Kemi Badenoch
No, I am not giving way any more. I would say that he does not think that. An ideological point is being made, and we will not have it.
The hon. Member for Putney made a point about GP surgeries having our data. GPs are private contractors. This conflation of what is private and what is not, and this lack of understanding of how services are delivered, is poor. The Carillion argument in particular is a specious one. Many organisations both private and public fail occasionally. We have debated these issues on the Floor of the House many times, and there is no point in my repeating them, but public sector organisations also fail. We do not then decide that we are going to rip up everything and that they will no longer provide any services; we try to fix what has gone wrong. I do not accept those arguments at all.
Government and local authorities will, as ever, and as my hon. Friend the Member for Broadland said, seek to ensure best value for money for the taxpayer. That is the right thing to do, rather than the ideological ping-pong that we are seeing here. I say to the hon. Member for Putney: nice try, but we are not accepting the amendment. If any aspect of the production or administration of either of these documents could best be served in the private sector, then that must be an option that is available. We are not being prescriptive about how we are going to do this.
Aaron Bell
The implication of how the amendment has been drawn up is that we would need a Government factory to produce the plastic and another Government factory to produce the ink. It is absolutely ludicrous.
Kemi Badenoch
I completely agree. That is what the wording of the amendment would mean. It would ensure that private companies cannot take part in any aspect of producing or administering voter cards, so my hon. Friend is absolutely right to make that point.
It is also possible that the private sector will have expertise or capabilities, or could offer innovative solutions, that do not currently exist in the public sector but would be of great benefit to the elector. The private sector has long held an important role in supporting the effective delivery of elections. I have mentioned some examples showing that it is already a valuable and capable partner for electoral registration officers and returning officers, and there is no good reason why it should be prevented from contributing in this instance.
Fleur Anderson
I would say that the whole Bill is ideological, so it is ridiculous just to take one part of it. It is ideological from start to finish, and especially in these provisions on voter ID. We must get this right from the start. We cannot go to an outsourced private company, get it botched, cause people not to trust it, and then insource it. Why not learn from Northern Ireland and get it right from the start? I am disappointed by the Minister’s lack of reflection on the Northern Irish experience. I still hope that this will be insourced from start to finish when it comes into play, and that the £120 million estimated cost will not go to line the pockets of individuals but stay within the system, where it should be. For all those reasons, we will press the amendment to a vote.
Question put, That the amendment be made.
Cat Smith
I beg to move amendment 44, in schedule 1, page 66, line 5, at end insert—
“13BF Public consultation on regulations under sections 13BD and 13BE
The Secretary of State may not lay before Parliament a draft of a statutory instrument containing regulations under section 13BD or section 13BE unless they have first undertaken public consultation on those regulations for a period no shorter than 28 days.”
This amendment would require the Government to consult for at least 28 days on regulations made about electoral identity documents and anonymous elector documents before they are laid before Parliament for debate and approval.
The amendment would require the Government to publish the details of the free elector IDs at least 28 days before they are laid in Parliament for debate, scrutiny and approval. It would be outrageous and unacceptable were they to fail to give us information about how the ID cards are administered before the legislation is laid. It is yet another example of how the Government continue to try to dodge scrutiny. It reminds me very much of the voter ID pilots. I appreciate that today’s Minister was not the Minister at the time, but the legislation for the pilots was rushed through Parliament in secondary legislation. All 650 MPs were denied the opportunity to scrutinise the Government’s plans. The Government appear to have some kind of allergy to scrutiny and accountability. I cannot understand why they would have any issue with the amendment, which would increase the confidence of the public and the whole House that the regulations would be workable, fair and proportionate.
Since the policy was first announced in December 2016, the Government have received multiple warnings from charities, civil society figures and campaign groups on the use of voter ID cards if they are rolled out nationally, and the threat that they could be a drawbridge for millions of voters. I remind the Committee that Neil Coughlan has a case in the Supreme Court challenging the pilots, which of course were rushed through by secondary legislation. I certainly would not want that to be the situation for the consultation on the regulations.
Aaron Bell
The shadow Minister makes a reasonable request about secondary legislation. I am sure that she is aware of the evidence that the previous Minister, my hon. Friend the Member for Norwich North (Chloe Smith), gave to the Public Administration and Constitutional Affairs Committee. She said:
“I am keen to be able to bring forward as much of that secondary legislation as early as possible so that parliamentarians can scrutinise it. That is only fair. In particular, in terms of the passage of the Bill, I am hoping to be able to do that ahead of the Lords stages. That is a reasonable ask of those who are doing the work behind the scenes, balanced with making sure that Parliament can see the detail that is contained.”
I hope that those assurances have been heard by the Opposition.
Cat Smith
I am aware of those comments. Perhaps my amendment gives the Minister the opportunity to confirm that it is her intention to keep to the commitment made by the previous Minister.
The free ID cards will be the linchpin upon which all the Government’s arguments rest. Every time the Minister, or her predecessor, was asked about voter ID plans, I have had it explained to me that everyone will be able to access the free ID cards. In July 2020, the House of Lords Select Committee on the Electoral Registration and Administration Act 2013 recommended that the Government needed to
“clarify how local elector cards will be funded and how it will ensure that local elector cards are easily accessible for everyone who needs one.”
In the Committee’s view,
“local elector cards will be crucial to ensuring that voter ID does not deter or prevent any eligible elector from voting.”
We are yet to hear any clarification from the previous Minister or the Minister on these matters—I appreciate that the Minister is only a few days into this role. The Bill does not contain any information about how the process will work.
I have a number of questions for the Minister, and I hope she will be able to respond. She said that the free ID cards issued by a local authority would be valid in other local authorities. For instance, if someone registers in Westminster but then moves to Lambeth, their ID card would still be valid for elections there. How would that work for anonymous electors who, instead of having a name on a polling card, have a polling number? Would they be the exception? For instance, victims of domestic violence who appear anonymously on the electoral roll will not have their names on their ID cards. How will those cases work across boroughs or council areas in different parts of the country?
Will the Minister explain where voters will be able to apply for their free ID cards? Does it have to be done in person? Will electors be able to apply for a free ID card on the day of poll? If an elector loses their ID card before the election, will they be able to collect another one on the day or would it be the day before polling day, if they are already in the system as having a free voter ID card? I have asked this previously, but will ask it again, and would be very happy to receive a more detailed answer in writing: will voters be able to apply for the cards online? That is a crucial issue and I will keep pushing it.
How long will one voter ID card take to process? How much will one ID card cost the taxpayer? Will it be the same ballpark figure as we have seen in Northern Ireland? Has the Minister considered how the Government will ensure that additional trained staff are available to process applications? What sort of equipment will be needed to verify applications and issue cards? Will local authorities need to purchase new printers? Will the Minister ensure that voters who want to apply for a free ID card on the day of poll can still vote? How many additional staff on average will be needed in each local authority to process this extraordinary change?
There are a lot of detailed questions there. I would appreciate it if the Minister could respond to what she can in the debate, but I would also be happy to receive something in writing during conference recess.
I could go on. There are an awful lot of questions about this policy—I have just scratched the surface. We have no detail on this policy, which is why the amendment is so important. It would provide time for the Opposition and the public to see the details and scrutinise them, and hopefully help the Government by making sure that the legislation is workable and fair.
Patrick Grady
It is either that or the Committee gets a separate speech. We fully agree with the amendment and the hon. Lady’s point. Does this not go to the heart of what the Bill is allegedly trying to achieve, which is greater participation, greater trust in the process and greater political engagement, in which case why not have a full public consultation period of no shorter than 28 days, so that everyone with a stake in the matter is able to contribute? That would boost confidence in the system.
Cat Smith
The hon. Member is absolutely right. Light is a very good source of scrutiny. A public consultation, as the amendment suggests, would bring in the expertise of more than just Members of this House. Obviously, we all engage with the process, but our electoral administrators might well have points to add. It would give them the opportunity to contribute, as it would political parties who are not represented in this House. Smaller parties would be able to have their say. It would give the Government far more credibility on what is, at the moment, quite a flaky policy.
Kemi Badenoch
Amendment 44 would ensure that any regulations made under proposed new sections 13BD or 13BE to the Representation of the People Act 1983 would first require a public consultation period of at least 28 days. The powers in those sections are for setting out the form of the voter card and the anonymous elector’s document, and the processes for both applying for them and issuing them.
We cannot agree to the amendment; it is an unnecessary administrative burden. Any regulations made under the new sections will be subject to consultation with the Electoral Commission, followed by significant parliamentary scrutiny under the affirmative statutory instrument procedure. Parliament would naturally want to ensure that any future changes are appropriate and based on contemporary evidence. Given the feisty debate that we have had—[Laughter.] The hon. Member for Glasgow North is laughing, but the fact is that we are having a lot of scrutiny on this Bill. We cannot pretend that we are not, and everyone can see that MPs are pleased to scrutinise this issue more than many others.
Patrick Grady
I was particularly amused by the notion that affirmative instruments are subject to detailed scrutiny. Anyone with experience of the SI process in this House could see that comment in the wider context in which it should be judged, and that provoked my laughter. The reality is that the Government rely increasingly on these kinds of statutory instruments and secondary legislation regulations, partly because they do not seem to have done their homework in preparing the primary legislation and precisely because they want to avoid the kind of scrutiny that the hon. Member for Lancaster and Fleetwood talked about—the opportunity for smaller parties who are not represented on Delegated Legislation Committees to have their say and the opportunity to amend regulations introduced in statutory instruments. This speaks to the power grab at the heart of the Bill, no matter what the purported purposes of it are.
Kemi Badenoch
I thank the hon. Gentleman for that intervention. If he feels there are issues with the SI process, he should take it up with the Procedure Committee, but I am sure I have sat in a room just like this one when he has been keen to get out to have his lunch. I think that for those of us—
Patrick Grady
On a point of order, Sir Edward. I am happy to go back and look at the Hansard record, but I have no recollection of serving on a Delegated Legislation Committee with the Minister, whether she was a member of it or a Minister. The record will show that at any time when I have represented the SNP on a Delegated Legislation Committee, I have made every effort to speak and to scrutinise the Government. Most of those Committees have been early in the morning, anyway, so we would not have been leaving for lunch.
Kemi Badenoch
I will leave the hon. Gentleman’s comments without reply, as we need to get back to the point.
I have talked about the Electoral Commission and the affirmative SI procedure, but there is a further issue with the amendment, of which I think we are all aware. It would require a significant mandatory time delay in making any regulations in future, no matter how small or technical. That could prevent a Government from making essential changes in time for an election if they needed to adapt the processes for issuing voter cards. The Government have worked and will continue to work closely with a wide range of organisations in the development and implementation stages of these measures. Adding a formulaic approach would be prohibitive to the system developing intuitively and responding quickly to evidence that comes out of implementation.
The hon. Member for Lancaster and Fleetwood asked whether I agreed with the remarks made by my predecessor in this Committee. Of course; I am keen to bring secondary legislation to the House as quickly as possible. She asked a lot of detailed questions, many of which I have answered before, and I am conscious that there is much still to work out as we go through further stages of the Bill. The questions that I can answer I will write to her about, but for many of them I am afraid I will refer to my responses to similar questions that have been asked previously. This will have to wait until secondary legislation, so we will not support the amendment.
Cat Smith
I am very disappointed that the Minister has not been able to cover at least some of my questions. I am particularly concerned about victims of domestic violence, who are anonymous on the electoral roll if they have a letter from their local police. I urge the Minister to look seriously at that issue because some of the most disadvantaged and vulnerable people in our communities are likely to disproportionately face barriers because of their ID cards. Presumably it will be difficult to make them valid. The Minister has failed to reassure me that there will be true public scrutiny of the regulations, so I wish to press the matter to a vote.
Question put, That the amendment be made.
Cat Smith
I beg to move amendment 45, in schedule 1, page 73, line 9, at end insert
“, or another eligible voter who has produced a specified document to the presiding officer or clerk on that day attests to the identity of the voter.”
This amendment would allow another voter who has provided ID at a polling station to attest to the identity of a voter who does not have a specified ID with them.
The Chair
With this it will be convenient to discuss amendment 46, in schedule 1, page 73, line 9, at end insert
“, or signs an affidavit in a manner and form as may be prescribed by regulations in the presence of the presiding officer or a clerk.”
This amendment would allow a voter to sign an affidavit confirming their identity in order to vote.
Cat Smith
The amendments would allow voters who do not have ID to still vote, by other means—either through attestation of their identity from another voter or by signing an affidavit to confirm their identify. They would allow voters who are on the electoral roll to still participate when they do not have ID to show. This takes place in other countries that require ID. Indeed, the amendments were very much inspired by conversations with campaigners in the United States, where, in some states, this has gone some way towards ensuring that voters are not excluded when voter ID requirements are in place.
Throughout Second Reading and so far in Committee, we have discussed the vanishingly rare amount of voter personation fraud that occurs in the UK. I need not remind the House that somebody is more likely to be struck by lightning three times than to become a victim of voter personation fraud.
Aaron Bell
The shadow Minister will know that just because there are very few convictions does not mean that there is not a bigger funnel of fraud at the top. The purpose of the amendments is to frustrate the entire purpose of voter ID. The assumption that everybody in the electoral process is a good actor is not one that we can make and not one that Government Members do make. The shadow Minister is talking about allowing somebody to attest to somebody else’s identity; there will be no follow-up check to see whether the right people have been marked off. All the issues that we heard about in the evidence from Peter Golds and others last week would still be permissible under this attestation process. It would still leave open the window for fraud that Government Members are seeking to close.
Cat Smith
I feel like we have rehearsed these arguments quite a few times already, but I will just say this: personation is incredibly rare. We heard that consistently from across the witnesses. Requiring an attestation is another barrier, in the same way as asking for ID is, but it is one that is more easily met by electors who, for whatever reason, do not have ID.
We know that there are some bad actors. If a bad actor is seeking to cast a vote that is not theirs, but they know that they have to have an attestation, that is a further barrier, because it is another chance of being caught out. This is another safety measure that could be brought in that is not as prescriptive and discriminatory, I would argue, as requirements for ID. If I am asked for a form of ID, I may or may not have it, but anyone can make an attestation if they turn up to vote. It would give the polling clerks opportunities to do further checks. It is just a way of ensuring, should voter ID come into force, that we do not exclude people who, for whatever reason, do not have ID or, as in the example I gave earlier, lose their ID on the day, and that they do not lose their right to vote.
I believe that this is a proportional and tried and tested measure that we could bring in to ensure that people are not disenfranchised and do not lose their vote.
Chris Clarkson
I appreciate that, with this amendment, the shadow Minister is attempting to ensure that as many people as possible can access the process, but does she really think that it would act as a deterrent to somebody who had got it in their mind to go through the process of looking at who does and does not vote? I could present myself at the polling station in Lancaster and say, “I’m Cat Smith; I’m here to vote.” Does she think I am then going to sign myself “Chris Clarkson” there? I will simply write that I am Cat Smith and go and cast the hon. Lady’s vote, and then she may turn up later and find out that I have stolen her identity. I have got away with it—I have cleared off.
Cat Smith
The hon. Member makes such a ridiculous point that I do not know where to begin. He highlights just how difficult personation at a polling station is. Were he to turn up at my polling station in Lancaster and claim to be me, I suspect that for several reasons he would probably not get away with it. I do not share his youthful good looks, clearly.
Patrick Grady
The other point, of course, is that if someone was going to all that hassle to cast a vote in the name of the hon. Member for Lancaster and Fleetwood, why would they not just print out a fake passport or one of the other forms of ID in the Bill? If that would be an offence under the Bill, so would making a false declaration—even more so, because the voter would potentially be asking their colleague to sign the attestation that the voter is who they say they are, or the voter would sign an affidavit. That would be an offence; they would still be personating.
Given that the Committee has agreed to the principle of voter identification, should we not look at finding ways to make that as inclusive as possible? I do not understand the hostility from the Government Benches when the Committee has accepted the principle of the need for increased safeguards and identification of voters. Let us find ways to make it as open and inclusive as possible. Once again, the hon. Lady can be confident of the support of the Scottish National party.
Cat Smith
I thank the hon. Member. We are finding an awful lot of common ground on the legislation. In the 2018 and 2019 pilots, we found that when voters were asked for a restrictive form of ID, hundreds of people who did not have it and did not understand that it was needed were turned away. This is a safeguard to ensure that those legitimate voters who were turned away would get a chance to cast a ballot.
Cat Smith
One of the witnesses in our evidence sessions—I cannot remember who it was; perhaps someone can intervene and share it with us—was very clear that no matter what legislation we bring in and how hard we try, bad actors will find a way around it to commit fraud. Even requiring ID at polling stations is not watertight. The hon. Member for Glasgow North made the point very clearly that if someone prints out a fake driving licence or passport, they can suddenly claim to be someone else because they have shown ID, even though it is a forgery. The legislation is not watertight against fraud, so it is about being proportionate.
I believe that the amendment is a proportionate safeguard to ensure that constituents who, for whatever reason on the day, are unable to provide ID are not denied the opportunity to cast a vote. It is used in many US states that have what I would call non-strict ID. It provides some level of protection, but not one that results in people being denied their vote.
Kemi Badenoch
Amendment 45 would allow a voter who has provided a specified form of identification at a polling station to attest to the identity of another voter who does not have a specified identification with them, and therefore enable a ballot paper to be issued to them. Amendment 46 would allow a voter who signs an affidavit confirming their identity to be issued with a ballot paper, even if they have not produced a specified form of identification. We cannot agree to the amendments because they would undermine the entire purpose of the voter identification measure in the Bill: that voters should show photographic identification in order to vote at an election. My hon. Friend the Member for Heywood and Middleton made an excellent intervention on that, which I will come to in a moment.
I remind Members that the principle underpinning the policy is to give voters confidence that their vote is theirs and theirs alone. Personation is by definition a crime of deception. It is very difficult to identify and prove. Photographic identification, more than attestation, virtually removes any risk of it occurring. It is a tried and tested model in the UK. As I said, the 2018 and 2019 pilots found that public confidence in the integrity of elections was higher. Attestation is just nowhere near the level that we need. People being able to create other documents easily is a weak argument. Fake passports and IDs are very difficult, complex things to create. Someone cannot just print a fake passport at their local library. The weakness of the examples that are being given shows that attestation is nowhere close to photographic identification.
We also consider that the decision to issue a ballot paper in a polling station to a voter should rest squarely with the presiding officer or a clerk. We do not consider that it would be appropriate for a voter to have a role in the issue of ballot papers to other voters, in particular as the ballot paper would be issued to a voter who has not shown a required form of identification. We should recognise that there would also be a risk that these provisions could be exploited by the unscrupulous to allow a ballot paper to be issued to a person who is ineligible to vote at an election. Any eligible voter who does not have one of the required forms of photographic identification can apply for a voter card. We will continue to work with multiple stakeholders—local authorities, the Electoral Commission, charities and civil society organisations—to make sure that reforms are delivered in a way that is inclusive for all voters.
I urge Opposition Members not to press the amendment.
Cat Smith
The Minister was obviously not present for our evidence sessions, but it strikes me that, as our witnesses told us that postal voting is where the largest amount of fraud takes place, and as that is a form of voting where photo ID is not required, she is leaving a gaping hole in the risks that she outlined. I am not convinced by her arguments and I would like to press the amendment to a vote.
Question put, That the amendment be made.
Cat Smith
I beg to move amendment 47, in schedule 1, page 73, line 9, at end insert—
‘(1AA) The presiding officer or clerk must—
(a) deliver a provisional ballot paper to a voter who is unable to produce a specified document,
(b) take reasonable steps as may be prescribed by regulations to establish if the voter, had they been able to produce a specified document, would have been entitled to a ballot paper, and
(c) if the voter would have been so entitled, covert the provisional ballot paper to a ballot paper in a manner as may be prescribed by regulations.”
This amendment would allow a voter who does not have a specified ID with them to cast a provisional ballot pending checks on their identity.
The amendment would allow a voter who does not have the specified ID with them to cast a provisional ballot pending checks on their identity. It is another example of an approach used successfully in the United States to ensure that as many people as possible who are legitimate electors are able to cast their vote in an election. In some states, such as Colorado, Florida, Montana, Oklahoma, Rhode Island, Utah and Vermont, voters who do not show required identification may vote on a provisional ballot, and after the close of election day, election officials will determine via a signature check or other verification whether the voter was eligible and registered, and whether the provisional ballot should be counted or be excluded. No action on the part of the voter is required.
Tom Randall
This is the same intervention that I was going to make earlier. The hon. Lady gives some good examples from the United States. I just wondered, as we are a European country, whether there are any examples from European countries that use voter ID. Do they have any of these measures that the Opposition are proposing?
Cat Smith
The reason why I draw examples from the United States is that it does not have a national ID card, in the same way that we do not, whereas the European examples tend to have a national ID card. In that sense, we are more similar to the United States than to the European countries that the hon. Gentleman tempts me to talk about.
In New Hampshire, election officials will send a letter to anyone who has signed a challenged voter affidavit because they did not show an ID. These voters must return the mailing confirming that they are indeed in residence as indicated on the affidavit.
That method has allowed many successful elections to take place without fraud becoming an issue. There have been so many inventive ways to ensure that people do not lose their right to vote under that legislation. I urge the Government to share that imagination and perhaps to listen to some of those examples of good practice from the United States and incorporate them into the UK legislation. I hope the Minister will consider looking at the proposals and at the ways in which some US states do that to support our attempts not only to stamp out fraud, but to ensure that no elector is disenfranchised unduly.
Kemi Badenoch
The amendment would provide that a person who is unable to produce one of the required forms of photographic identification is able to cast a provisional ballot pending checks on their identity. We cannot agree to the amendment. It would mean that the counting of votes and announcement of the final result at an election might have to be delayed while the eligibility of such persons to vote at the election is checked and resolved by elections staff.
Brendan O'Hara
On the length of time, so much of what we heard on Second Reading and today was about the integrity of the ballot and about ensuring that every vote counts and that no vote is there wrongly, but suddenly we seem to have a pivoting on this point, with convenience somehow trumping democracy. The Minister accepted that queues will be longer, because people will have to produce a voter ID card, so are we really saying that the inconvenience of having to check the veracity of somebody’s vote—that it is absolutely correct—is more important than them actually having that vote?
Kemi Badenoch
No, I do not think so. I do not think that the point the hon. Gentleman is making applies to this amendment. Of course, we want every single vote to be counted, but as the amendment is drafted, how long would we have to wait, and what would the procedure be under it?
Brendan O'Hara
The answer would be that we wait as long as we need to get the right result.
Kemi Badenoch
Exactly—that is the point I was coming to. As the amendment is drafted, it could be a way in a marginal election of unduly delaying the announcement of a result. We want to ensure that people do not have their votes taken away and used by others who should not be using them. The examples we saw in Tower Hamlets and so on are part of the reason for the Bill.
Kemi Badenoch
No, I need to make progress—I am looking at the time.
The examples that we gave show why the Bill is needed, and that is not what the amendment would do. It would create an unnecessary administrative process. The focus of the Bill is on ensuring that everyone who is eligible and wants to cast their ballot in person can do so. We are talking about a situation in which someone does not have any photographic identification or a voter ID card, but puts in a provisional ballot only to disappear for who knows how long. Someone refused a ballot paper because they do not produce a required form of photographic identification may try again. If they return with identification, they will get a ballot, and they may make any number of attempts to do so.
Patrick Grady
That does not answer the point that I made on Second Reading and earlier today about what happens if a voter turns up too late in the process, say about quarter to 10 at night, at the last minute, but realises that they have left their photographic identification at home. By the time they get back, they might not be able to get inside to cast their ballot. This nonsense of, “How long would it take?”, could perhaps be addressed in regulations, as that seems to be the Minister’s solution to most of our other problems and questions. Or, if she does not like the competency or the wording of the amendment, is she suggesting that she would be open to a more clearly prescriptive amendment to address some of the points on Report? Perhaps that will be tabled and the Government will consider it at that stage.
Kemi Badenoch
I do not think that the hon. Gentleman has improved his argument by saying that we should not have the legislation because someone might turn up with five minutes left and something could wrong. We do not say that border control should not look at passports because someone might have left theirs at home, so might miss their flight.
The hon. Gentleman’s argument is, I am afraid, weak. We are improving and strengthening the process. There will of course be scenarios that are unpreventable. We have all seen them before, when someone is unable to vote. One of those scenarios, I repeat, is when someone tries to vote and their vote has been taken by someone else. The Bill will fix that, and the amendment would not help.
Points were made about what happens when people change their names. An elector who has changed their name since their photographic identification was issued will be able to bring additional documentation to polling stations to satisfy the presiding officer that they are on the register. The amendment would lead to the creation of an entirely new concept of a provisional vote that would be new to UK elections. It would therefore not be a straightforward process. That could impact on the result being announced in good time, as I have already said, potentially undermining public confidence in the outcome of the poll—something that we cannot have. We are therefore not persuaded of the merits of the arguments or the proposed changes, and we would be concerned about the potential harm they could do to the successful delivery of elections. I urge the hon. Member for Lancaster and Fleetwood to withdraw the amendment.
Cat Smith
I am not entirely reassured by the Minister’s remarks. I know that our Liberal Democrat colleague, the hon. Member for Edinburgh West (Christine Jardine), has a different surname on the electoral roll. The issue of names on documents is a huge problem, particularly for women. It would be good to see an impact assessment, given the Minister’s dual role. I will not press the amendment to a vote, but I ask the Government to look seriously at ways in which we can be more innovative about being inclusive in our actions. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Cat Smith
I beg to move amendment 48, in schedule 1, page 73, line 14 at end insert—
“(1BA) The presiding officer must ensure that a woman presiding officer or clerk is available to confirm privately the identity of a woman voter if that voter so requests.”
This amendment would give someone choosing to cover their face for religious or cultural reasons the option of removing their face covering in the presence of a woman presiding officer or clerk when confirming their identity.
This amendment would give someone choosing to cover their face for religious or cultural reasons the option of removing their face covering in the presence of a woman polling clerk or presiding officer when confirming their identity. The previous Minister advised colleagues that polling staff will be given appropriate training in the checking of voter ID for individuals who choose to wear face coverings or headscarves. Although the Government have apparently guaranteed the use of privacy screens at polling stations to facilitate private ID checks, many voters will feel uncomfortable about the prospect of having to show their face or hair to a polling clerk of the opposite gender.
In an evidence session we heard from Rob Connelly from Birmingham about how there will be an issue in recruiting polling clerks. He said:
“We will have to start reviewing all our polling stations again to be able to have privacy screens in place”.––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 61, Q96.]
I want to acknowledge the fact that there is a lot of pressure on local authorities. It is essential that no one is disfranchised. We also took evidence from Maurice Mcleod, who said:
“It is all very well saying that photo ID should be used, but if you are not supposed to reveal your face to a man who is not in your immediate family, that is really hard. Even if councils say, ‘We’ll make sure there are women, or people who know what should happen, at the polling station,’ there is still that worry in your head, if you are that woman who is not that confident about whatever, and you need to go out and vote. There is still that concern—‘Will I be treated properly? Do they know…my faith needs?’”
––[Official Report, Elections Public Bill Committee, 16 September 2021; c. 97, Q152.]
Will the Minister confirm that her plans include provisions to ensure that there are staff of both genders all day at each of the 35,000 polling stations across the country to ensure that voters will not be placed in an inappropriate position? How much does she expect that to cost? Does she share my concern that many women will simply choose not to vote if they perceive that they are faced with the risk of having to remove their headscarf or face covering to a stranger, particularly a male stranger?
Kemi Badenoch
Amendment 48 would require the presiding officer to ensure that a woman presiding officer or clerk is available to confirm privately the identity of a woman voter if that voter so requests. We cannot agree to the amendment because it would not be appropriate for that level of detail about the staffing of polling stations to be set out in primary legislation. It is for returning officers and electoral administrators to manage the resources that they have for the poll, and there is the concern that introducing such a requirement would severely limit flexibility in the deployment of elections staff, which would make it challenging for returning officers to successfully deliver elections.
Before imposing such requirements and additional burdens on polling staff, it is important to conduct research and engagement with the public to find out if this is something they would find beneficial, or something that would need to be done in all areas. A similar policy of voter identification has been operating in Northern Ireland since 2003, and no such requirement exists there. Certainly, we will look to have this approach as best practice, which may be the more sensible approach, and one that provides more flexibility. I reassure the hon. Member for Lancaster and Fleetwood that initial discussions with electoral administrators have identified a significantly higher presence of female than male staff working in polling stations which, anecdotally, has been my own experience.
We consider it impractical to introduce the strict requirement proposed by the amendment, which could potentially prevent polling stations from being able to operate. I have said previously that we are going to be as inclusive as we reasonably can with this legislation. I am happy to reassure the hon. Lady that polling station staff will be given appropriate training, as she mentioned, and there will be a requirement for privacy screens to be placed in polling stations, allowing for those who wish to have their ID viewed in private. On that basis, the Government cannot support this amendment.
Cat Smith
Without this amendment, I fear we risk a postcode lottery, where many women will be very anxious about the prospect of voting without the guarantee of a female poll clerk to verify their identity. For that reason, we would like to have a vote.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Amendment 50, in Schedule 1, page 75, line 9, at end insert—
“(o) an 18+ Student Oyster photocard;”.
Amendment 51, in Schedule 1, page 75, line 9, at end insert—
“(o) a National Rail Railcard;”.
Amendment 52, in Schedule 1, page 75, line 9, at end insert—
“(o) a Young Scot National Entitlement Card;”.
Amendment 53, in Schedule 1, page 75, line 9, at end insert—
“(o) a firearms certificate granted under the Firearms Act 1968;
(b) a digital ID (such as the NHS app, EU settled status app or Railcard app).”.
Cat Smith
Despite losing many votes this afternoon, I do hope that the Government might be open to the idea of looking at various different IDs that we can add to the list of valid IDs in the Bill.
There are many aspects of the Bill that I find quite shocking and, arguably, undemocratic. The fact that people are unable to use student IDs or 18-plus Oyster cards to vote is an attack on young people’s ability to take part in our democracy. It is something that falls to all of us, as Members of this House, to ensure that the next generation engage with democracy. There is an oversight, in that, the legislation does allow for travel passes for older voters to be used, but not for younger voters who have similar passes.
The inclusion of student IDs that contain photographs and names would be an improvement to this Bill. I hope the Government considers this, as it is incredibly important that we engage young people in our democracy. We have seen in other parts of the United Kingdom, where 16 and 17-year-olds have a vote, that if they use their vote when they are 16 or 17 they are more likely to develop a habit of voting and taking part in democracy.
This goes back to my first argument: that our democracy is stronger, and it is harder for bad actors to influence it, when we have higher participation. This amendment seeks to increase that participation, to ensure that more forms of ID are included on the list in the Bill. It cannot be right that some IDs seem to be valid and some IDs seem not to be valid.
Patrick Grady
The hon. Lady is absolutely right about the enthusiasm with which 16 and 17-year-olds in Scotland have participated in ballots and plebiscites since they have had the opportunity to do so, and how frustrating many of them have found it when a UK snap election has come along—the pattern in recent years—that they cannot participate in. I particularly welcome amendment 52 including the Young Scot National Entitlement Card as a form of ID, because it is already recognised in law by the Scottish Government and Police Scotland as an acceptable form of proof of age. I will be very interested to hear it if the Government decide that they oppose the suite of amendments that we are currently debating, because why, having accepted the principle of photographic identification, would they then want to narrow the scope and narrow the chances of people being able to demonstrate who they are? It just seems a bit bizarre.
Cat Smith
I completely agree with the hon. Member. His intervention gives me the opportunity to put it on the record that the Welsh Labour Government have also recently extended the franchise to 16 and 17-year-olds and seek to make participation in democracy something that is easy to do yet still secure. On that note, I look forward to hearing the Minister’s responses as to why young people are seeing more barriers put up to their voting than already exist.
Kemi Badenoch
The amendment would ensure that further forms of photographic identification would be allowed in order to vote at a polling station. We cannot agree to the amendment, because the forms of identification currently in the Bill were chosen following a detailed assessment of a wide variety of photo identification.
Kemi Badenoch
I can actually answer the question, because I asked it myself; I thought it was an interesting point. The reason is that the requirements when applying for those types of card are different. Getting a 60+ Oyster card is a significantly more stringent process. People need a passport, driving licence or combination of different proofs of age and address to apply for the 60+ Oyster card. People do not have to have that for the 18+ Oyster card, for example. We have gone through and looked at what the basis for stringent checks would be. The point I am making is that we considered the level of security checks required to get each type of identification and the likelihood that someone holding further forms of identification would already hold one of the permitted types of identification. That is why this is the case.
Brendan O’Hara
My question is on the specifics. We have been talking about a card that is accepted by the Scottish Government and, indeed, by Police Scotland. Why specifically is the Scottish young person’s national entitlement card not accepted for this purpose?
Kemi Badenoch
I am sorry, but I do not know the details of the Scottish entitlement card. Perhaps if I can see the reasons and the application process for that, I might be able to give an example. I have given the basis for how the decisions were made. I cannot comment on various forms of identification used in various places, I am afraid.
The list of identity documents that will be permitted for the purpose of voting at polling stations that is included in the Bill is already broad. That said, it is recognised that available forms of identification will change over time, and that is why the Bill includes provisions to allow the list of acceptable identification to be updated through secondary legislation. For example, there are plans for online provisional driving licences, which will be considered for inclusion if appropriate. We completely understand the need to make sure that as many people as possible are able to get the ID that they need, and we feel that this provision and the free voter card are enough to make sure that voters will have the identification required, so we will not support the amendment.
Cat Smith
As the legislation stands, it is disappointing that the Minister has not been able to present convincing evidence on several forms of identity in this group of amendments. I hope that she takes this opportunity to look particularly at the Young Scot card, which is accepted by the Scottish Government, in order to at least present to the Committee the patterns of thinking as to why that was not as secure as, say, the 60+ Oyster card in London, because I think that would be of benefit to the Committee. I hope that the Government will be looking to make the list, while being secure, as inclusive as possible. And I would wish to have some votes, Sir Edward.
Higher Education (Freedom of Speech) Bill (Twelfth sitting)
(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
New clause 9—Appointment of the Director for Freedom of Speech and Academic Freedom—
“(1) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.
(2) The Secretary of State shall when appointing the Director for Freedom of Speech and Academic Freedom have regard to the views of an Independent Advisory Body.”.
This new clause would require the appointment of the Director for Freedom of Speech and Academic Freedom to be confirmed by the Education Select Committee, and for the Secretary of State to consult the Independent Advisory Body when appointing the Director for Freedom of Speech and Academic Freedom.
New clause 11—Review of the appointment process for the Director for Freedom of Speech and Academic Freedom—
“(1) The Secretary of State must conduct a review of the appointment process for the Director for Freedom of Speech and Academic Freedom within six months following the calling of a new Parliament.
(2) Any review conducted under subsection (1) must assess the suitability of the appointment process for selecting politically impartial candidates.
(3) The Secretary of State must lay the report of the review before Parliament.”.
This new clause would require the Secretary of State to review the appointment process for the Director for Freedom of Speech within six months following the calling of a new Parliament, and lay the report of this review before Parliament. The review must include an assessment of the suitability of the appointment process for selecting politically impartial candidates.
Matt Western (Warwick and Leamington) (Lab)
I will just finish off my remarks on amendment 85 and new clauses 9 and 11. I remind the Committee that we believe there is a need for some other body to be involved in the process. We suggested that the Education Committee could be well disposed to carry out that role.
Our critical point is that maintenance of and alignment to the Nolan principles are important in the appointment of the director for freedom of speech. The approach of the Office of the Independent Adjudicator for Higher Education was raised, with its emphasis on skills and experience. I sense there is a bit of clear blue water between that approach and what has been proposed for the position at the OfS, which might align more with principles and values.
The key thing throughout has been the importance of credibility in this appointment. Many in the sector have questioned the trust, and that is something my right hon. Friend the Member for Hayes and Harlington addressed. Credibility is important; there is real concern across the sector—not just on the Opposition Benches—about this legislation, and particularly about the intent behind the appointment of the director of free speech.
Question put, That the amendment be made.
Matt Western
We have discussed this clause at some length. It causes us great concern and concern across the entire sector—to the universities, the University and College Union and the National Union of Students, as well as to existing bodies, such as the Office of the Independent Adjudicator, and to the Charity Commission. All our amendments to the clause have sought to ensure that the director is best equipped to deal with the difficult task that awaits them.
The chief executive of the Office for Students, Nicola Dandridge, likened the director of free speech and academic freedom to the director for fair access and participation. I am not convinced they are the same. This position is so important to the future direction of our campuses, although the director for fair access and participation is of course important, and we have had a person in post since the inception of the Higher Education and Research Act 2017 and the establishment of the OfS, so that person predates the Prime Minister, his Government and the direction in which he is clearly taking us. However, while I appreciate the similarities and very much hope that the director of free speech has an equally positive effect and an impartial position, the clause as it stands creates a framework that favours the centralisation of power in one person, potentially with a lack of participation from the sector, which will remain silent on the appointment of the director. We tabled those constructive amendments to get the engagement and buy-in from the sector, which as colleagues have so eloquently said is absolutely needed now. We have heard that the Association of Colleges, for example, has not been consulted at all. There are many flaws in the approach that the Government have followed.
The Minister for Universities (Michelle Donelan)
We have already discussed the clause extensively, so I will keep my remarks very tight.
The new complaints scheme provided for by clause 7 will be overseen by the new director for freedom of speech and academic freedom within the Office for Students, and that director will oversee the free speech functions of the OfS. That means that there will be an individual within the OfS who has an undivided focus on those fundamental values in our higher education system, and they will play a public role in championing the value of free speech and academic freedom across the higher education sector.
That new high-profile role will demonstrate the importance of free speech and academic freedom in higher education and will empower individuals and providers to ensure that universities and colleges in England are places where freedom of speech can thrive for all staff, students and visiting speakers, contributing to a culture of open and robust intellectual debate.
Matt Western
Will the Minister confirm that the role will be a full-time appointment, and what will the tenure of the contract be?
Michelle Donelan
As we heard in evidence, the role will be akin to the director for fair access and participation. The job description and all the terms will be published in due course—it would be premature to do that before the Bill becomes an Act.
Question put, That the clause stand part of the Bill.
Michelle Donelan
Clause 9 gives effect to the schedule to the Bill that makes minor and consequential amendments to other legislation. These consequential amendments are necessary to give effect to the main provisions of the Bill and to make all the legislation work together seamlessly and consistently.
Part 1 of the schedule provides for a number of amendments to be made to part 1 of the Higher Education and Research Act 2017. For example, amendments to section 75 of the 2017 Act allow for the regulatory framework of the Office for Students, which gives guidance on how it will regulate, to include provision on student unions. That is a consequence of the new duties for student unions that are imposed under clauses 2 and 6 of the Bill.
Part 2 of the schedule makes amendments to the Counter-Terrorism and Security Act 2015. Paragraph 13 makes consequential amendments. Paragraphs 14 and 15 make minor changes that are not consequential, but are technical corrections. The effect of the amendments is to match those providers that are monitored for compliance with the Prevent duty under section 32 of the 2015 Act to those listed in schedule 6 of that Act that are subject to the duty. That makes no difference in practice; it is simply to fix inconsistencies in wording.
Part 3 of the schedule amends section 43 of the Education (No. 2) Act 1986, which sets out the current freedom of speech duties on universities and colleges. It removes registered higher education providers from scope, since they will now be covered by this Bill. Part 3 also amends the Higher Education Act 2004 to ensure that the scheme operated by the Office of the Independent Adjudicator for Higher Education, which considers student complaints against providers, takes account of the new freedom of speech complaints scheme to be operated by the Office for Students.
The clause and schedule therefore contain amendments to other legislation that are necessary for the operation of the Bill.
Matt Western
I do not have any points to make on this clause.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Schedule
Minor and consequential amendments
Amendments made: 17, in schedule, page 13, line 25, leave out from “subsection (1),” to end of line and insert—
“for ‘a provider’ substitute ‘a registered higher education provider, or a students’ union,’”.
This amendment is consequential on Amendment 18.
Amendment 18, in schedule, page 13, line 27, leave out “provider,” and insert—
“registered higher education provider or of a constituent institution of such a provider,”.
This enables costs recovery from constituent institutions in connection with the complaints scheme.
Amendment 19, in schedule, page 14, line 6, after “provider” insert “, constituent institution”.
This amendment is consequential on Amendment 18.
Amendment 20, in schedule, page 14, line 43, at end insert—
“(aa) after the definition of ‘a fee limit condition’ insert—
‘“constituent institution”, in relation to a registered higher education provider, has the same meaning as in Part A1 (see section A3A(4));’;”.
This defines “constituent institution” for the purposes of Part 1 of the Higher Education and Research Act 2017.
Amendment 21, in schedule, page 15, line 46, leave out sub-paragraphs (2) to (4) and insert—
“(2) In paragraph 1, for the words from ‘in relation’ to the end substitute ‘where under section 73 the OfS imposes a requirement to pay costs on—
(a) the governing body of a registered higher education provider,
(b) the governing body of a constituent institution of a registered higher education provider, or
(c) a students’ union.’
(3) In paragraph 2—
(a) in sub-paragraph (1)— in sub-paragraphs (3) and (5), after ‘governing body’ insert ‘or students’ union’.
(i) after ‘governing body’ insert ‘or students’ union’;
(ii) for ‘73(1)’ substitute ‘73’;
(4) In paragraph 3(1) for ‘of a provider’ substitute ‘or students’ union’.”.
This amendment is consequential on Amendment 18.
Amendment 22, in schedule, page 16, line 15, at end insert—
“(1A) In subsection (1)—
(a) in paragraph (b), omit the final ‘or’;
(b) after paragraph (b) insert—
‘(ba) a constituent college, school or hall or other institution in England or Wales of an institution within paragraph (b), or’.”.
This amendment aligns section 31(1)(b) of the Counter-Terrorism and Security Act 2015 with the concepts used in the Higher Education and Research Act 2017, in order to facilitate the Minister’s other amendments to Part 2 of the Schedule.
Amendment 23, in schedule, page 17, line 4, leave out from “provider” to end of line 7 and insert—
“or a constituent institution of such a provider has the meaning given by section 85(6) of the Higher Education and Research Act 2017;”.
This amendment and the Minister’s remaining amendments to Part 2 of the Schedule clarify how section 31 of the Counter-Terrorism and Security Act 2015 applies in relation to constituent institutions of registered higher education providers.
Amendment 24, in schedule, page 17, line 13, at end insert—
“‘constituent institution’, in relation to a registered higher education provider, has the same meaning as in Part A1 of the Higher Education and Research Act 2017 (see section A3A(4) of that Act);”.
See the explanatory statement to Amendment 23.
Amendment 25, in schedule, page 17, line 22, leave out from “provider” to end of line 24 and insert—
“(aa) a constituent institution of such a provider, and”.
See the explanatory statement to Amendment 23.
Amendment 26, in schedule, page 17, line 28, at end insert—
“(e) after the definition of ‘qualifying institution’ (inserted by paragraph (d)) insert—
‘“registered higher education provider” has the meaning given by section 3(10)(a) of the Higher Education and Research Act 2017.’”.—(Michelle Donelan.)
See the explanatory statement to Amendment 23.
Sir John Hayes (South Holland and The Deepings) (Con)
I beg to move amendment 70, in schedule, page 17, line 36, at end insert—
“14A After section 32, insert—
‘32A Section 26(1) duty: exception for higher education providers
For the purposes of section 26(1) of this Act, the obligation to have due regard to the need to prevent people from being drawn into terrorism shall not apply to any decision made by a registered higher education provider that directly concerns:
(a) the content or delivery of the curriculum;
(b) the provision of library or other teaching resources; or
(c) research carried out by academic staff.’”.
We have had a useful debate on the principles of the Bill. A difference between us has emerged during that debate, which is essentially the difference between those of us who think the Bill is essential, because we think there is a prevailing problem that we need to address—that was reflected to some degree in the evidence we received from Professor Biggar, Dr Ahmed, Professor Kaufmann, Professor Goodwin and so on—and those who take the opposite view, that there is not a problem and, if there is, it can be dealt with by existing means.
My anxiety in all of these matters is to bring clarity to the Government’s intentions. I have made that point throughout. We have been reassured by the Minister a number of times that she is listening to the Committee and will go back and reflect further on the points that have been raised. We have also heard that much will be made clearer in guidance. That is not uncommon in this place. Over many years, as a shadow Minister and Minister, I have encountered many occasions where the implementation of a Bill, particularly when breaking new ground, has required that guidance be issued. It is right and important—if I were the Opposition, I would be making this point—that that guidance is made available at a time that allows it to be scrutinised. I understand that argument, and it is a perfectly reasonable one.
However, equally, from the point of view of good governance, it is important that the guidance—based on the discussions and consultations that will no doubt take place, as the Minister has assured us, between the sector and Government—is iterative and that it reflects those discussions and marks those consultations. I am not as concerned about that as some, because I assume a degree of good will in that respect.
My view about the Bill and the Committee is that, as was said by Members from across the House, our task is to improve the legislation during its passage. That is precisely what I have tried to do in the amendment. For me, it is about certainty and clarity and about establishing an environment where universities and others will be confident that the new regime is one that will deliver the outcomes we want, which is to facilitate and, indeed, to guarantee free speech on campuses across the country.
I am a supporter of the Bill, and the amendment, as hon. Members will see, is a helpful one. It is not designed to do anything other than to improve the legislation. I am also mindful that all Acts are rather different from the Bills they begin as. No Act of Parliament is quite like the Bill that is published; they all metamorphosise during their passage and improve as a result of that metamorphosis. So, the amendment, which is straight- forward, is designed to provide greater clarity, build the certainty I have described and also mark the progress of the Bill. Once the Bill becomes an Act we need to measure its effect. I have argued throughout the Committee for greater clarity, for greater certainty and for more information to be provided.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The amendment talks about the Prevent obligations, which are not an Act in themselves so are subordinate to Acts, not being applied for purposes of research, delivery of the curriculum or teaching. Can the right hon. Gentleman give some examples of how he would want this to be applied? We are not quite yet clear on this side of the Committee about whether that is something we would be positively happy with because we are not clear on how the he sees it being implemented.
Sir John Hayes
The hon. Gentleman has not only anticipated fully my preliminary remarks, but the essence of my amendment and my speech. I was about to say that my efforts are to improve the legislation and ease its passage to create the certainty and clarity I described. The hon. Gentleman will not necessarily know this, but as Minister for Security at the Home Office, I introduced the Prevent duty. Prevent was a long-standing part of our strategy to deal with counter-terrorism, as he will know, but I introduced the change to oblige local authorities, schools, the health service, community organisations and others to identify, where they might, people who were vulnerable to the overtures of terrorists or who were possibly dangerous already in those terms. We are talking here about potential terrorists and the hon. Gentleman will know that the way the Prevent duty works is that when those people are identified, a process begins, which may end up in them being referred to the Channel programme. The Channel programme is designed to counter the activities of extremists and others who wish to groom those individuals.
The Lord Commissioner of Her Majesty's Treasury (Michael Tomlinson)
indicated assent.
Sir John Hayes
I see the Whip is nodding. It is important that we are clear about how the Prevent duty operates in practice; the intent of that duty; and the relationship between that and the provisions of this Bill.
We have already spoken about the necessary consistency in the application of these provisions. We have also spoken about the interaction, the interface between these new legal responsibilities and existing law, particularly in respect of the Equality Act 2010. More generally, it is important that this fits with other legislation when it becomes law. That is always a challenge for the Government because Ministers and Governments inherit a statutory landscape not of their making. That is not always a straightforward process. However, by improving legislation in this metamorphosis we can address that issue. That is what I am trying to do with the amendment. I do not know whether it is perfectly worded; I do not know whether it could be improved.
Lloyd Russell-Moyle
The right hon. Gentleman has clarified his thinking for me, which is very useful. I am not sure about some of the detailed wording, but that is the point of a probing amendment, is it not? I wonder if he would like to reflect on the interesting contradiction that the Prevent duty does not apply to student unions, but it does apply to the institutions. This amendment applies to both. When the right hon. Gentleman was Minister, did he consider why the Prevent duty was only on the institutions? Why did he not extend that duty to the student unions, and why is he now supporting this Bill, which does the opposite?
Sir John Hayes
I spend a good deal of my time contemplating what I think now, and I occasionally contemplate what I thought once. However, the longer one has lived, the harder that becomes. I could not say with absolute conviction that I recall the considerations I made in years gone by. It is complicated, in my case, by the fact that I have held a lot of different ministerial offices, and dealt with a lot of legislation over a lot of years. I said to the Labour spokesman that I have sat many times where he sits today, and, while it is tough being a Minister, it is pretty tough being a shadow Minister too.
I hope I have made it clear that my intention is positive; good Committees are about responsible progress being made—to that end I do not want to delay the Committee any further. This is a probing amendment to clarify, and make straightforward, the relationship between these legislative imperatives, so that the universities know precisely what is to be done. Finally, I send this signal out again: the Prevent duty is not about curbing free speech, it is about identifying potential terrorists. It is no more or less than that. It should not be under-interpreted, because we need to find those people before they do harm. However, it should not be over-interpreted as a backdoor means of closing down free and open debate.
Matt Western
I thank the right hon. Member for South Holland and The Deepings for the clarification in the points he has put forward. I found reading what he was proposing a bit troubling, but I understand much more, having now listened to him and to the responses that have been made by colleagues. The right hon. Gentleman had already alluded to the fact that, under Prevent duties, specified authorities are required to have a due regard to the need to prevent individuals being drawn into terrorism. This applies to higher education institutions, local authority schools and further education institutions, as well as the health sector, prisons, probation and police services. I may have got this wrong, but my understanding was that there was a provision prior to the coalition Government’s introduction of the Prevent duty, and it was an enhancement of this that came in through the office of the right hon. Gentleman.
Sir John Hayes
The difference was the statutory basis of what we did. I think there was a provision prior. Prevent is a longstanding part of the Contest strategy, which is the means by which counter-terrorism efforts are delivered. We specified in statute a new duty—that is the difference.
Matt Western
I thank the right hon. Gentleman for the clarification. As he has said, in essence this was a policy introduced by the coalition Conservative Government. I am interested to hear what the Minister’s view is in response to this amendment.
I have read that, in the view of Corey Stoughton, director of advocacy at the human rights organisation Liberty, the tactics of the strategy for monitoring campus activism has had a
“‘chilling effect’ on black and Muslim students, provoking self censorship for fear of being labelled extremist.”
We have to be very careful here, because blanket exemption is just as bad as blanket application. I have looked through the responsibilities of universities, which already have done very well to balance freedom of speech with the Prevent duty. My hon. Friend the Member for Brighton, Kemptown and I have discussed how the Nottingham Two incident—the right hon. Gentleman may be familiar with it—played out, and how such situations can be avoided. There must be an obvious method of ensuring that academics can research these subjects, whether it be the cultural impact of drugs or the impact of certain political movements, without the police knocking on the door. I would have thought that an obvious way of avoiding problems and difficult situations on campus would be to introduce processes to allow academics to make their governing bodies and departments aware of their work.
Emma Hardy
I believe I understand what the right hon. Member for South Holland and The Deepings is trying to do with this amendment, but I return to our previous point that the big problem with this Bill is how it interacts with other pieces of legislation, and what impact it will have. That is why we talked about putting into the Bill the other pieces of information that we have mentioned. I am sure the Minister will refer us to guidance that is coming shortly to deal with this. The Bill does not exist on its own, so, as my hon. Friend says, the implementation will be incredibly complex. That goes back to the points we made this morning about who the person will be who has to try to decipher this very complicated piece of additional legislation.
Matt Western
Exactly that—it is about how this Bill will play with existing legislation and how the responsibilities will be balanced. The fact, and the overriding argument, is that institutions in the higher education sector have done an amazing job of balancing the obligations and the competing freedoms that exist on our campuses, and they have done so with very few problematic exceptions. It will be interesting to see how this individual and their department will handle that. I do not hold out a huge amount of confidence and hope in what they will do, but I will be interested to see what the Minister says in response to the amendment, and we will hold fire until we have heard her words.
Mr Kevan Jones (North Durham) (Lab)
I have a problem with the amendment, because I think there is a lot of misunderstanding around the Prevent agenda. It is one of the four p’s—prevent, pursue, protect and prepare—which are, as the right hon. Member for South Holland and The Deepings has just said, part of the Government’s Contest counter-terrorism strategy. The principles that underpin it are democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs, and of those who hold none. I do not understand how it would be a problem for the director or any other institution to have to take into account issues surrounding Prevent.
It would be problematic if we started to take people out of legislation. Prevent is clearly designed to identify individuals who are at risk, and having met—in another role—the people who co-ordinate Prevent, I know that they are very skilled at ensuring that only those who need the programme are put through it. I accept what the right hon. Gentleman said about the vicar, but I am not sure that the amendment would prevent him—pardon the pun—from being referred anyway; that is more about training and ensuring that those whose duty it is to operate Prevent actually understand it. Will we get the odd case of people being referred when they should not be? Possibly, but that does not mean that those cases will be taken any further. I am sure the vicar was not taken any further just because somebody thought that he had failed in the Prevent duties.
I do not think there is any need for the amendment. The principles underpinning Prevent go to the core of the Bill, which talks about freedom of speech, democracy and everything else.
Lloyd Russell-Moyle
I declare my usual interests with the University of Bradford, the University of Sussex, and the University and College Union.
When I first saw the amendment, I was slightly confused —[Interruption.]
Lloyd Russell-Moyle
When I first saw the amendment, I was slightly confused about its purpose. The idea that the Bill ought to refer to contradicting or overlapping—however one might phrase it—legislation and sets of guidelines is something that we have proposed in previous amendments, which I feel were slightly better worded.
I put it to the Minister that we need in the Bill a recognition that there are contradictory guidelines and that there will be guidelines to explicitly outline how duties and laws at universities will interact. That would relieve of a lot of pressure. We want surety that the guidelines will have that element to them in perpetuity, so that whatever new Government or office comes in, the guidelines will always outline how the Acts and duties interact with each other.
In that sense, I understand and agree with the spirit of the amendment, but the Bill probably needs something that goes further and has more detailed wording. I also understand that there have sometimes been cases in which either the Prevent duty as it is now, or the Prevent programme as it was, was used and had a chilling effect. We have heard that from different organisations. The Nottingham Two have been mentioned; that was a case of a PhD student researcher and a lecturer at the University of Nottingham. The university felt that it was its duty to report them to the police; they were arrested for downloading and disseminating the al-Qaeda manual and were refused bail for a period of time. There has been a lengthy court case on that. Compensation was paid to the two individuals because they were researching how terrorists radicalise people—the very thing we need researchers to be working on.
The law has helped to correct itself through the court process. I am not diminishing the awful effect it must have had on the two researchers, but they have received compensation and to some extent, unfortunately, these things do happen. Most institutions have already corrected their reporting mechanisms to ensure that that kind of thing does not happen. I am sure the example right hon. Member for South Holland and The Deepings gave us of the chaplain will be a one-off example that will help us to correct in the other direction as well. Those correction moments are sometimes needed, rather than using statute or legislation to do it.
One thing that should perhaps be included in guidelines is some idea of a process for when you are dealing with contradictory things, such as something that might breach the Equality Act but is necessary to talk about difficult issues that are discriminatory, or that might breach the Prevent programme in a literal reading, rather than its intended spirit. It is the same in universities when dealing with issues that might trigger a safeguarding process; a lecturer or researcher would write to the university to explain what they plan to do in order to get prior authorisation.
Mr Jones
There are no key principles for how somebody gets referred to Prevent; it is actually about assessing someone’s vulnerabilities and a pattern of behaviour. There may be an example raising one issue that would automatically get people put into Prevent, but I think the structure is already there.
Lloyd Russell-Moyle
I totally agree. However, an example might be if a lecturer wishes to run a course about Islamic radicalisation. They might say to the university, “I need some extra safeguards put around this course because of the students it might attract and the topics we might be dealing with. It is important to teach this course for academic rigour, it is important to understand these issues, but it might attract people to join the course for undue reasons.” That is not to stop them from doing it; it is just to make sure there is a safeguarding approach. All of that kind of stuff needs to be in the guidelines, not here. I hope that that is what the Minister will say. I think a safeguarding, prior notification approach is what is needed here.
I did want to touch on the interesting contradiction brought up by this amendment. Prevent—although there is debate about its understanding and its use, I do not think that is relevant here—is an important programme to try to safeguard and stop the radicalisation of people in our country. However, it applies to the institutions, and the institutions cascade to bodies that work within them, such as student unions. It does not apply directly to student unions in terms of the duty. This does, which is an example of where this Bill overreaches.
If the Bill is going to have a deeper, more intrusive reach than the Prevent programme, we need either to revisit the Prevent duty or to say that this Bill is a bit of an overreach, that it is not necessary for it to be regulating as deep down as student unions and student clubs. This amendment helps to highlight that. That is an argument I have made many times in this Committee, so I will not go any further on that point.
Michelle Donelan
Under amendment 70, higher education providers would not have to comply with certain academic decisions such as those concerning delivery of curriculum or research in relation to the Prevent duty. The Government are clear that the Prevent duty should be used not to suppress freedom of speech but to require providers, when exercising their functions, to have due regard for the need to prevent people from being drawn into terrorism. There is no prescription from Government or the Office for Students on what actions providers should take once they have that due regard.
Specific guidance has been published by the Home Office on how higher education providers should comply with the Prevent duty. The legislation imposing the Prevent duty in higher education already specifically requires that providers have particular regard to the duty to ensure freedom of speech and the importance of academic freedom. That means that providers already have special provisions on the application of the Prevent duty to enable them to take proper account of academic freedom, so there is no need for this amendment to go further.
The Government have commissioned an independent review of the Prevent duty and are looking at how effective the statutory the Prevent duty is, to make recommendations for the future. I hope that reassures the Committee.
Sir John Hayes
I find the Minister perpetually reassuring, so that is a good starting point. The anxiety is that research is curbed, materials that might be accessed by students are in some way constrained and activities on campus are curtailed, particularly around research and new courses that, by their nature, are contentious. We have heard some examples so I will not repeat them. There are fears in universities that the authorities will not allow academics to run a course in a controversial area or commission research that might be deemed by some to be awkward or embarrassing. That is not in the spirit of academic freedom that I think we all want to engender in our universities. My intention with the amendment was to protect that academic freedom.
There is a problem with Prevent; I am a great supporter of it, as is the right hon. Member for North Durham, but there is an issue on which the review of Prevent might focus. It is the number of referrals and whether all those referrals are appropriate. That is a different debate for a different place, with different people.
On the basis of the Minister’s reassurance, the healthy debate we have had on the subject and that we need to make progress, with my mission to clarify and bring certainty to this legislation, I happily beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the schedule, as amended, be the schedule to the Bill.
Michelle Donelan
The schedule contains minor and consequential amendments to other legislation and is brought to effect by clause 9. As we discussed, the consequential amendments are necessary to give effect to the main provisions of the Bill and make all the legislation work together seamlessly and consistently. Therefore, it will contain amendments to other legislation that are necessary for the operation of the many measures of the Bill.
Question put and agreed to.
Schedule, as amended, accordingly agreed to.
Clause 10
Extent
Question proposed, That the clause stand part of the Bill.
Michelle Donelan
The clause is a technical provision setting out the extent of the provisions of the Bill. The majority of the Bill extends to England and Wales, but part 2 of the schedule makes a minor technical correction and consequential amendment to the Counter-Terrorism and Security Act 2015, the relevant part of which extends to England, Wales and Scotland and. As a result, certain provisions in the Bill extend to England, Wales and Scotland. The clause is a necessary technical provision.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Commencement
Question proposed, That the clause stand part of the Bill.
Michelle Donelan
The clause sets out the commencement provisions for certain clauses. It provides that clause 6 and related provisions will come into force on the day the Act is passed, to allow the Secretary of State to make regulations under new section 69B(3) and (4) of the Higher Education and Research Act 2017 in respect of the amount of the penalties that the Office for Students may impose on student unions for breach of freedom of speech duties, and the matters to which the OfS must or must not have regard when imposing such penalties.
Paragraph 7 of the schedule will come into force two months after the legislation has passed, to allow the OfS to consult on changes to its regulatory framework, as required by section 75 of the Higher Education and Research Act 2017. The early commencement of those provisions will allow time for preparation in advance of the main provisions of the Act coming into force. The other provisions will come into force in accordance with regulations made by the Secretary of State. Different days may be appointed for different purposes. Such regulations may include transitional provision and savings.
The clause is a necessary technical provision to allow suitable dates for the commencement of various provisions of the legislation when it is passed.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Short title
Question proposed, That the clause stand part of the Bill
Michelle Donelan
New clause 2 seeks to requires providers to take steps to ensure that student unions have sufficient resource to carry out their duties—
Matt Western
I have a minor point relating to the title. It appears pretty straightforward, but there seems to be a variance in how it is listed. The Education Act 1986 included further and higher education. Perhaps it should be the further and higher education (freedom of speech) Bill. Is that something that the Minister would consider?
Michelle Donelan
We believe that the title of the Bill is correct.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
New Clause 1
Duties of constituent institutions
“After section A3 of the Higher Education and Research Act 2017 (inserted by section 1) insert—
“Duties of constituent institutions
A3A Duties of constituent institutions
‘(1) Sections A1 to A3 apply in relation to the governing body of a constituent institution of a registered higher education provider as they apply in relation to the governing body of the provider.
(2) Accordingly, in the application of those sections by virtue of subsection (1), references to “the provider” are to be read as references to the constituent institution.
(3) The duties of the governing body of a constituent institution of a registered higher education provider under sections A1 to A3 do not affect the application of any initial or ongoing registration conditions imposed on the provider under Part 1.
(4) In this Part—
“constituent institution”, in relation to a registered higher education provider, means any constituent college, school, hall or other institution of the provider;
“governing body”, in relation to a constituent institution of a registered higher education provider, has the same meaning as in Part 1 of this Act.’”—(Michelle Donelan.)
This new clause secures that the new duties relating to freedom of speech apply to colleges and other constituent institutions of registered higher education providers in England.
Brought up, read the First and Second time, and added to the Bill.
New Clause 2
Providers’ duty to ensure adequate resources for students’ unions
“After section A5 of the Higher Education and Research Act 2017 (inserted by section 2) insert—
‘A5A Resourcing of students’ unions
The provider must take steps to ensure that students’ unions have sufficient resources to carry out their duties under sections A4 and A5 of this Act.’”—(Matt Western.)
Brought up, and read the First time.
Matt Western
I beg to move, That the clause be read a Second time.
This important provision is all about having sufficient resources. As we have debated at some length, student unions will bear a considerable burden of cost and resource to make the duties work on campuses. It is an administrative burden that hitherto they have managed to cope with, but this greatly exceeds what they would have done in the past.
We have to remind ourselves that we are talking about the full plethora of institutions from larger universities to smaller higher education institutions and further education colleges. The Department for Education’s impact assessment quotes a cost to student unions of £800,000 a year to implement and update the code of practice. The impact assessment also makes it clear that student unions will face the heaviest burden because of their unfamiliarity with the new administrative requirements; most universities already have in place good codes of practice on freedom of speech.
The Bill disproportionately affects a variety of SUs, such as those at FE colleges. The Association of Colleges points out in its briefing that 165 FE colleges are registered higher education providers on the Office for Students’ list. The recent submission by Durham University, which I am sure is of particular interest to two Committee members, makes it clear that clause 6 could represent a significant additional administrative burden on organisations. Jim Dickinson of Wonkhe highlighted in his submission that
“the funding and resultant capacity and capability of an SU to undertake these duties is usually wholly dependent on a negotiation between the SU and the provider. Without a duty on the provider to resource the SU appropriately to carry out the duty there is a material risk that they will be unable to. Vexatious complaints surrounding, for example, SU elections may not succeed but would cause an SU committee to need to seek costly legal advice which it may not be funded to obtain.”
Given that the Government have voted down all our attempts to amend the Bill in a satisfactory manner, the new clause is a form of backstop to ensure that the legislation will not challenge the viability of SUs up and down the country through the need to withstand these costs and the potential for vexatious litigants. The new clause is yet another constructive amendment that we want included in the Bill to recognise the immense financial burden and responsibility faced by student unions in the wide mix of institutions and colleges that the measures will affect. We think it important that the Government recognise that student unions will face that burden, which could seriously affect their viability.
Lloyd Russell-Moyle
In local government, the health service, education and other areas, there is a doctrine known as the new burden doctrine. It is a sensible doctrine whereby if a new burden is put upon a body—particularly in local government and in educational bodies under local government—the Government shall make provision to pay for that new burden, or they will provide for that body to be able to raise revenue to cover the new burden.
Higher education institutions have income-raising capacity, although I am sure they would say that the cap should be lifted or the funding formula should be changed. They can make that an argument to the Chancellor at the spending review, and I know that many of them have. I desperately hope that the burden is not put on poorer students, as we are reading in the papers. Personally, I would move to a proper graduate tax, or even free education. A new graduate tax could be introduced for the young, and an old-age social care tax for those who are older, so we could have one joint intergenerational tax that allows a bit of intergenerational solidarity—but I digress.
Despite my desire for free education or a proper graduate tax that does not put people in debt, universities can go and make their case to the Chancellor. They have powers to raise revenue, either by seeking research funding or through student fees. They can get more students in, in fact—they could squeeze two or three more students into lecture halls. Student unions have none of those abilities. They do not, on the whole, raise revenue. Some, which are now the exception, still run some commercial businesses, but that is a rarity in higher education—even in campus universities. Most campus university student unions do not even run their own bars now.
Government Members who think that student unions can raise the money need to look again at student union finances, the vast majority of which come from the good will of the institution. The problem is that if the institution deprives the student union of money, the financial penalty for that student union and its duty do not transfer back to the institution; the liability is not reduced. I suspect that the liability will be covered by the student union’s paying basic insurance, but if it is deprived of money it will have no ability to pay for that, while still having the liability.
The new clause does not specify an amount; all it says is that the institution, in appointing the student union—because it appoints the body that is the student union; its job is to say, “This is our registered student union”—has to make sure that the student union has sufficient resources. If the student union has bars and commercial services, the institution can say, “We’ve ensured that you have the right resources because we can see that you have an income. No problem.” If the student union has none of those resources, all the new clause requires is that the institution takes steps to ensure that it has. Perhaps it will give a bar over to the student union to run, so that it generates the resources, or perhaps it will give over an amount of money. The new clause requires that to happen. The guidelines will explain how that happens, of course, but without this provision I am deeply worried that we will be imposing a new burden.
Mr Richard Holden (North West Durham) (Con)
I have been reading the impact assessment and I can quite understand where the hon. Gentleman is coming from. It suggests that the annual enforcement costs would be around £400,000 a year and that the total ongoing costs directly applying to student unions would be £1.2 million a year nationwide. However, there are over 100 academic institutions and many student unions across the country; if we divide that cost by 100 academic institutions, we are not talking about a huge amount of money per institution. Does the hon. Gentleman not think that student unions should be able to deal with the small extra costs?
Lloyd Russell-Moyle
I go back to my point. This is not a huge burden on institutions, but we should require institutions to ensure that there are those resources, given that some student unions have almost zero resources—only a few hundred pounds in the bank account. For many student unions there will be no problem, but provision will be needed for others. The new clause just says to the institution, “Check that your student union can do this.” It might just be a matter of a few hundred pounds for the insurance premium. It is fair for the institution to be required to do that. I hope the Minister will take that on board, either in the guidelines or in Lords amendments.
Emma Hardy
I try not to get cross, Mrs Cummins, but I am going to get a little bit cross now, and then calm down again.
As I have said many times, this whole Bill has been written with Oxford, Cambridge and all the Russell Group universities in mind. The intervention on my hon. Friend the Member for Brighton, Kemptown by the hon. Member for North West Durham reinforces that view. I keep going back to the 165 FE colleges that are affected by the Bill. How is a small FE college with no full-time student union representatives or independent income going to pay the insurance costs? The assumption is that all will need insurance to cover themselves against any liability. How will they be able to afford that and keep going if all the Bill applies to them?
The Minister says that the provision has to apply to FE colleges because they are higher education institutions, but it does not directly apply to junior common rooms. I will not repeat the long debate that we had about that, but if there is one rule for JCRs, why not look again at further education colleges? All the new clause does is say that there must be adequate resources. I said on Monday that the outcome of the Bill could be the creation of shell-like structures of student unions outside all the ones that can afford it—those of the Russell Group and Oxford and Cambridge. Beyond that, student unions would not exist in any meaningful way, which would be a travesty.
Michelle Donelan
Earlier, I was too eager to get to new clause 2. The new clause would require providers to take steps to ensure that student unions have sufficient resources to carry out their duties under proposed new sections A4 and A5 of the Higher Education and Research Act 2017.
There is universal agreement about the importance of freedom of speech in university life. We saw that in the evidence sessions. There is also broad consensus about the important role that student unions play in protecting freedom of speech on campuses. Many student unions do fantastic work in that area, including having their own codes of practice, which often involve collaborative relationships with the provider. We fully expect that to continue, and for providers and student unions to work together, hand in hand, in relation to freedom of speech. That may include, where appropriate, a provider taking steps to ensure its student union is adequately resourced to carry out its duties. It may also involve the sharing of good practice, or a provider assisting the student union with the development of its own code of practice.
The measures are about protecting fundamental principles, not creating more red tape. There is huge diversity among student unions in the ways they are established and funded, reflecting the huge variety in the higher education sector as a whole and in further education. It is important that we reflect that variety in the Bill and do not seek to regulate the relationship between providers and student unions with a one-size-fits-all policy. Some student unions are heavily reliant on funding from their university; others may be more financially independent. Many have developed innovative portfolios as a way to generate income to contribute to a fulfilling university experience for students. The amendment does not reflect that variety or the differing, often complex arrangements that exist between providers and their student unions.
It is also important to note that the duties in proposed new sections A4 and A5 apply only to student unions of approved fee cap providers. Student unions of small, specialist providers that are not approved fee cap providers are not in scope of the Bill. In that way, we are ensuring that the Bill’s measures are not overly bureaucratic and follow the approach in the Education Act 1994, which sets out regulatory requirements relating to student unions at a number of institutions, including approved fee cap providers, but not other providers. In contrast, new clause 2 would place an additional, unnecessary regulatory requirement on providers in relation to student unions. In addition, we expect that there will be guidance from the Office for Students in due course that will help student unions to understand how to comply with their duties and assist them in drafting their code of practice.
Lloyd Russell-Moyle
If the student union has nothing more than a petty cash box and no staff or sabbatical officers—there are some such student unions—how does the Minister suggest that they draft a professional code of conduct without the institution ensuring that they have the resources to do so? The new clause does not talk about cash; it could be secondment of staff.
Michelle Donelan
I thank the hon. Member for that very good point. While not wanting to predetermine the work of the new director, I fully anticipate that they will look at drawing up templates of such codes of practice to assist.
I trust that I have been able to reassure the Committee that we are taking appropriate and proportionate actions to ensure that student unions can address freedom of speech in a way that is not overly bureaucratic and that reflects the variety in their composition, size and financial arrangements.
Matt Western
I hear the Minister, but the Opposition believe that it will lead to considerable red tape, even if there are templates to be adopted and so on. I just do not believe that many student unions would be able to cope. There will be associated stresses and certainly great costs, such as the insurance we picked up on the other day. The right hon. Lady talks about there being many student unions that have developed innovative revenue raising. Perhaps there are a number of such cases—I would be interested to know how many there have been among the hundreds we are talking about—but we will press the clause to a vote, because we think there is serious concern about the viability of student unions.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 6—Sunset clause—
“(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.
(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.
(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.
(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.
(5) Regulations under this section shall be subject to the affirmative procedure.”
This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.
Matt Western
The purpose behind new clause 3 is straightforward: it is to ensure that the effectiveness of the legislation is formally reviewed, certainly within a year of it’s being passed. Professor Jonathan Grant said in his evidence:
“What I wait to see—I cannot answer this; I am speculating––is whether the legislation will have an impact on that 25% of people who feel that they cannot say what they want to and whether it will change the behaviours of lecturers in the classroom to get more balanced reading lists. I hope that is the case, but we do not know at this stage. If this legislation leads to that, then it has been successful.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 122, Q264.]
There are pretty substantial markers of success. Barring Dr Harris’s absurd belief that
“all this Bill needs to do to be successful is to cause a momentary pause. It needs to cause a degree of reflection.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 82, Q175.],
which I would suggest is a marker of success so low that, on this basis, the legislation ought to be passed continually to allow moments of self-reflection, we need to monitor the progression of the , how it is going to work and how it may work once it is, we assume, passed.
If the Government are, as the Committee is saying they are, so keen on the promotion of free speech, surely they would be inclined to allow annual monitoring and to tweak the Bill as necessary—for example, if there is vexatious litigation or confusion among students about which body they should complain to. New clause 3 simply seeks a review by the Education Committee looking into the effectiveness of the Bill’s provisions.
New clause 6, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, is a straightforward sunset clause of the type that much legislation includes. It states that this legislation should expire after three years beginning on the day it is passed, in view of our belief that it will not work. We are doing our best to be constructive about how it could work better and to mitigate its worst impacts, but we believe it is important to include this sunset clause. It would also give the Minister the power to remove provisions that were acting against the interest of free speech. I am reminded of how my right hon. Friend the Member for North Durham described the chilling effect as a blancmange. If that is so, why not embed the equivalent amount of flexibility in the Bill?
John McDonnell (Hayes and Harlington) (Lab)
I put my name to the new clause as a point of principle, because I believe that we accumulate legislation—it builds up—but we never really review it properly to see whether it is effective enough and whether it needs proper amendment. This is basically a pragmatic administrative clause that, as my hon. Friend said, appears in many pieces of legislation.
I do not believe the Bill is necessary in this form—I think other actions should be taken—but if we are to pass legislation such as this, an awful lot of the issues will be addressed by regulation and guidance. The new clause gives the opportunity for a review within three years to see whether the legislation as a whole is working effectively, which parts of if are working effectively, and which parts are not and need to be dropped or amended. It is a straightforward administrative mechanism that I believe should be contained in most legislation, to prevent the pile-up of unnecessary burdens.
Michelle Donelan
As we have heard, new clause 3 would require the Secretary of State to invite a Select Committee of the House of Commons to review the effectiveness of the provisions of the Bill at least once a year, whereas new clause 6 would make the Bill subject to a sunset clause, so it would expire three years after the date of enactment unless a report is made to Parliament and regulations are made to renew the Act. It would also Ministers to remove provisions of the Bill one year after enactment if they are not working as intended.
On new clause 3, I can assure Members that the Department for Education will work with the sector to ensure that the measures are properly implemented, and we will review the legislation in the usual way with a post-implementation review. There are also provisions in the Bill as drafted that will help to measure its effectiveness once it comes into force.
Clause 4 provides that the Secretary of State may require the Office for Students to report on freedom of speech and academic freedom matters in its annual report or a special report. The report must be laid before Parliament, so that Parliament and the sector can scrutinise it. Equally, paragraph 12 of new schedule 6A to the 2017 Act and clause 7 of the Bill provide that the Secretary of State may request the OfS to conduct a review of the complaints scheme or its operation, and to report on the results. We therefore do not think it necessary to add yet more provision in the Bill to include a requirement for a Select Committee to conduct an annual review of the effectiveness of the Bill. It is worth noting that the current freedom of speech duties in section 43 of the Education (No. 2) Act 1986 do not have such a requirement, and nor does the Higher Education and Research Act 2017, which is being amended by the Bill, so there is no precedent in this context.
Emma Hardy
May we return to the issue of the Select Committee and whether it will have a pre-appointment hearing for the freedom of speech director? Will the Select Committee be able to call the director to give evidence and to have scrutiny, as it did with the leader of Ofsted, Amanda Spielman?
Michelle Donelan
A pre-appointment scrutiny hearing is the prerogative of the Government. The Government could decide that, but it does not need to be on the face of the Bill. As for whom the Select Committee calls, I fully anticipate that once the new director is in office, the Select Committee will want to speak directly to them.
Turning to new clause 6, we do not think it would be right or appropriate to set a sunset clause in the Bill. Equally, it would not be right to allow Ministers to remove provisions in the Bill by way of regulations only one year after Parliament had approved the Act, when there has not been enough time for the Act to bed in. A sunset clause for a whole Act would be extremely unusual and considered appropriate only in very particular circumstances. We see no reason why the Bill should be treated differently from the majority of other primary legislation.
The Government believe that the Bill is important and necessary. It must be allowed to take effect in the sector to deal with the issues, so that we no longer have cases of freedom of speech and academic freedom being wrongly restricted. If we do have instances of that, those affected must be able to seek redress. We must have a change of culture on our campuses and create a climate of accountability for decision making, to ensure that our universities are places where debate can thrive. I trust that the Committee will agree with me that these amendments are not necessary and the Bill should be allowed to do its work once it is enacted.
Matt Western
As my right hon. Friend the Member for Hayes and Harlington said, we believe that the amendments are quite straightforward. We should be trying to avoid the piling up of legislation The point has been made many times by my right hon. Friend the Member for North Durham that, for decades, Conservative Governments have claimed that they are reducing red tape and ridding this country of legislation, but here we are again. We seem to be living under what is perhaps the most authoritarian Conservative Government ever. They are introducing more and more legislation and burdens on those who can ill afford it.
We thought that a sunset clause was a very straightforward suggestion. We believe that the Select Committee should have more of a role to play, and why not? Surely the purpose of having a Select Committee is to conduct scrutiny of the work of the Department and agents within the sector; and surely the director of free speech should be part of the scrutiny by that Committee. We will therefore wish to press new clause 6 to a vote.
Question put and negatived.
New Clause 4
Other student bodies
“After section A4 of the Higher Education and Research Act 2017 (inserted by section 2) insert—
“A4A Application of students’ union provisions to other student bodies
(1) In this Part, where a provision applies to a students’ union, it should also be taken to apply to any other student body.
(2) For the purposes of this section “other student body” means—
(a) any Junior Common Room or Middle Common Room of a constituent institution; and
(b) any club or society made up of students at a higher education institution, whether or not the club or society is affiliated to the students’ union.””—(Matt Western.)
This amendment would expand the definition of a student body to include any Junior Common room or Middle Common room of a constituent institution or any club or society at a higher education institution, regardless of whether student union affiliation requirements have been complied with.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Fiona Bruce (Congleton) (Con)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 13—Unfair dismissal in violation of academic freedom—
“(1) A member of academic staff of a higher education provider who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is any act or omission by the provider which contravenes the duty in Section A1.
(2) For the purposes of dismissals under subsection (1), Section 108(1) of the Employment Rights Act 1996 (Qualifying period of employment) shall not apply.
(3) Notwithstanding Section 124 of the Employment Rights Act 1996 (Limit of compensatory award etc.), there shall be no limit on the level of compensation that can be awarded in cases of unfair dismissal in violation of academic freedom.
(4) Section 128 of the Employment Rights Act 1996 (Interim relief pending determination of complaint) shall apply in cases of dismissals under subsection (1).”
This new clause would render a violation of clause 1 in employment practice as unfair dismissal, regardless of the period of employment at a higher education provider, with no cap on the level of compensation. Interim relief would be available to complainants in such cases.
Fiona Bruce
New clause 5 would ensure that employment tribunals had jurisdiction to hear claims relating to the duty in new section A1 of the Higher Education and Research Act 2017. This Bill has been introduced in part because of the high-profile instances of academics being dismissed. Many of the controversial examples have involved extramural speech rather than research or teaching, which again emphasises the importance of our earlier discussion grappling with the proper ambit of protection of academic freedom
The Committee will recall that Kathleen Stock, who gave oral evidence, faced calls for her dismissal due to her gender critical views. In 2019, we heard about Sarah Honeychurch, a lecturer who was sacked as editor of the academic journal Hybrid Pedagogy after signing an open letter to The Sunday Times criticising LGBT training in universities. What legal remedy do such academics currently have? One may argue that higher education providers, as public authorities, could be judicially reviewed, but judicial reviews are often prohibitively expensive, particularly for junior academics. Moreover, judicial review does not ordinarily review the merits of an decision, but more usually involves consideration of whether the correct procedures have been followed, which may still not capture some of the mischiefs identified by the Government before introducing the Bill.
Crucially, there is a real risk that, even if they were able to pursue a claim in the High Court, a dismissed academic may not be able to claim dismissal-related losses if they were dismissed due to an exercise of their lawful free speech and academic freedom. In the case of Johnson v. Unisys Ltd, the House of Lords took the view that the clear intent of Parliament was that dismissal-related cases and claims of a similar nature
“should be decided by specialist tribunals, not the ordinary courts of law.”
That is why I have tabled this modest but hugely significant amendment. We must ensure that those who have been dismissed due to the exercise of academic freedom have an appropriate route of challenge in the employment tribunal—a venue that has the relevant specialisms to deal with dismissal claims, recognising the spirit of and understanding the letter of the law the Bill will introduce. Employment tribunals also have appropriate procedures to simply and significantly reduce the cost burden of claims, especially when compared with the complexity and expense of claims in other proceedings, such as judicial review proceedings.
It may be argued that employment tribunals already deal with claims concerning free speech and that is correct, but invariably such claims must be linked to a protected characteristic, in particular freedom of religion or belief, which has a very specific meaning in equality and discrimination law. I anticipate that most academics would not ordinarily be able to argue that their academic viewpoint springs from their philosophical or religious beliefs, and nor should they have to. Academic freedom is there to ensure that academics have the space to rigorously test and develop new ideas. Dismissal on that basis ought to qualify for specific and special protection with meaningful remedies.
The amendment would address that problem and is consistent with evidence we heard, such as the recommendations from Tom Simpson, who said, for example,
“would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 72, Q149.]
I spoke about the Bill to associate professor in the faculty of law at Oxford, Paul Yowell, and I thank him for his time. He particularly emphasised how important he considers such an amendment. I take the opportunity to refer colleagues to his Policy Exchange paper published in the last few days, “The Future of Equality”.
In his evidence, Professor Goodwin astutely pointed out:
“If the current system with regard to sacking and dismissal were working, we would not be having this conversation. We would not have had dozens of academics appearing in the newspapers. There was another one this weekend from the University of Bristol who was accused of being Islamophobic. The university had ruled that he was not Islamophobic, but had none the less removed his course in response to student satisfaction.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 96, Q195.]
He said “satisfaction”, but I think it might have been dissatisfaction. In any event, the academic’s course was removed in response to comments from students.
Mr Jones
Like the right hon. Member for South Holland and The Deepings, the hon. Lady obviously reads a lot into individual cases that are highlighted in the press. I have some sympathy with her new clause, but it would not prevent people from being appointed. People would find other reasons for debarring people from applying. Could she address the issue of tenure? Employment tribunals deal in contract law—contracts between individuals—but tenure is slightly different. Would the new clause require a change to the way tenure is given to academics?
Fiona Bruce
That may require some consideration, but as I am sure the right hon. Member knows, tenure is attained only after very many years of often insecure academic life on the part of academics, and that is one of the issues of which we need to be acutely aware when looking at the Bill.
Mr Jones
I am aware of that, but if somebody who has tenure is dismissed from a university because of their views, they would not actually be protected by new clause 5. Although I agree with what the hon. Lady is trying to achieve, it may be difficult to achieve because of the issues around tenure.
Fiona Bruce
I am not entirely taking the right hon. Gentleman’s point—it probably requires some reflection on my part—but I thank him for raising it, and no doubt the Minister might do the same.
Professor Nigel Biggar noted that
“appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 31, Q62.]
I hope the Minister will consider my comments.
Matt Western
I understand the points that have been made by the hon. Member for Congleton, and I appreciate the sentiment, but I disagree with how new clause 5 is worded, because implicit in its words is quite a narrow conception of unfair dismissal. New clause 13 is broader and affords greater protections, and I hope that the hon. Lady will support it.
Several witnesses underlined why the inclusion of employment law provisions in this conversation is so important. When questioned by my hon. Friend the Member for Brighton, Kemptown on whether employment law would be a better basis for defining some of these rights, Professor Stephen Whittle responded with a categorical yes. In her evidence, lawyer Smita Jamdar said:
“there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q110.]
Employees need the full protection of the law, which is what new clause 13 seeks to provide. Employees would not have to conform to the stringent requirements for bringing an unfair dismissal claim—usually, a two-year qualification period and a range of reasonable responses test, which is construed broadly, often in favour of the employer. They also would not be subject to capped damages awards. There was cross-witness support for this, including from Thomas Simpson, who said:
“I would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 72, Q149.]
On Second Reading, the hon. Member for Devizes (Danny Kruger) said:
“We should allow academics to appeal not just through the civil law but to an employment tribunal if their academic freedom is restricted.”—[Official Report, 12 July 2021; Vol. 699, c. 76.]
New clause 13 is actually an extrapolation of new clause 5. We think that it is broader.
Matt Western
I am not a lawyer. I would hope that it would be, but my hon. Friend may well be right that it may not be covered. That would be its intent. The concern is about the vulnerability of academics in terms of their tenure and whether they will have the protections that others already have.
I hope the amendment covers that. If it does not, then perhaps this is something we should revisit. I hope the hon. Member for Congleton will recognise that our new clause is an enhanced version of what she is proposing and vote with us.
Michelle Donelan
New clauses 5 and 13 seek to provide that a dismissal and breach of the new section A1 duty is specifically to be treated as an automatically unfair dismissal under the Employment Rights Act 1996. New clause 13 further seeks to disapply the two-year qualifying period for unfair dismissal in these cases, removing the limit on the level of compensation that can be awarded and applying provisions allowing claimants to seek interim relief, pending determination of their claim.
Let me be clear that the Bill does not stop employees in higher education from taking their claims to employment tribunals. In doing so, employment tribunals may consider questions of freedom of speech and academic freedom and alleged breaches of the section A1 duty in that context, although the Bill does not give them the jurisdiction to hear freedom of speech cases.
The current two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff.
Mr Jones
I am very interested in what the Minister just said. It is clear that an employment tribunal can be held on sex discrimination grounds or on other grounds, but could she point out in present employment law where it states that someone would be able to bring an industrial tribunal on the basis that they were discriminated against because of freedom of speech? I am not aware of such a law.
Michelle Donelan
As I said, tribunals cannot take a freedom of speech case per se, but if there were evidence of discrimination on the grounds of freedom of speech in the case that they were taking, that could be heard. I can come back to the right hon. Gentleman with the details of that after the Committee, but I cannot point out the exact line of the legislation on the spot.
Mr Jones
As I understand it, an industrial tribunal case could not be taken on the grounds that someone had been dismissed because their freedom of speech had been infringed. That is a problem that came out in the evidence. A tribunal could be brought on the basis of sex discrimination and for other reasons, but if the sole reason for a tribunal was that someone thought they were being dismissed because of their views and that their freedom of speech was being questioned, I am not sure such a tribunal would have jurisdiction over that, given present employment law. If the Minister does not know, I am happy that she writes to the Committee.
Michelle Donelan
The point I am trying to make is that an employment tribunal will determine whether a dismissal was fair or unfair, depending on the specific circumstances of the case. Therefore, it may take into account breaches of academic freedom of speech. The Bill does not amend employment law in this regard and we do not think it would be appropriate to make dismissal because of a breach of the new duties an automatic unfair dismissal.
The Bill does, however, give new protections to academic staff, including those who may not have employee status or who have been employed for less than two years. It therefore broadens the scope of the current provision section 43 of the Education (No. 2) Act 1986, to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging, without the risk of losing their post.
The Bill provides new specific routes of redress for those without employee status, including a complaints scheme operated by the Office for Students and a statutory tort. I hope that Members are reassured that the Bill strengthens protections for academic staff and employees. It expands the range of available routes of complainants and ensures that a wide range of individuals are able to secure redress.
Fiona Bruce
I hear what the Minister says, as well as the comments from other Members, but there is still a lack of clarity. The Minister said that an employment tribunal will decide if a dismissal has been fair or not fair, and may take into account academic freedom.
Sir John Hayes
The emphasis here is on “may take into account”, in my hon. Friend’s words. The important thing is that those tribunals understand both the spirit and letter of the law that the Bill will become, and that the context that she set out is well understood by all concerned.
Fiona Bruce
The Government might want to continue to consider this issue as the Bill progresses.
Mr Jones
I am now a bit confused by what the Minister has said. Tribunal cases are done on case law. I am not aware of any case law in which unfair dismissal has been upheld on the basis of a freedom of speech issue, so I am at a loss as to what the Minister has said. However, I agree with the hon. Lady that this is something that needs to be looked at in detail on Report.
Fiona Bruce
I agree; the Government should consider the matter in the light of the nature of academic contracts, which have been discussed in the course of the Committee’s proceedings.
I will not press new clause 5 to a vote, but I do ask the Minister to consider the matter carefully and to be aware that it is likely that colleagues in the House may want to revisit it as the Bill proceeds. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 6
Sunset clause
“(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.
(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.
(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.
(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.
(5) Regulations under this section shall be subject to the affirmative procedure.”—(Matt Western.)
This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Emma Hardy
I beg to move, That the clause be read a Second time.
I believe that we have debated the issue of guidance at length, so I am happy to beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 12
Harassment
“In section 26 of the Equality Act 2010, after subsection (4)(c) insert—
‘(d) When the case concerns the conduct of academic staff of a registered higher education provider, the importance of freedom of speech and academic freedom, as provided for under Part A1 of the Higher Education and Research Act 2017 (as inserted by section 1 of the Higher Education (Freedom of Speech) Act 2021).’”—(Matt Western.)
This new clause amends the Equality Act 2010 so that, in deciding whether the conduct of academic staff of a registered higher education provider constitutes harassment, the importance of freedom of speech and academic freedom must be taken into account.
Brought up, and read the First time.
Matt Western
I beg to move, That the clause be read a Second time.
The former Secretary of State for Education, the right hon. Member for South Staffordshire (Gavin Williamson), said on Second Reading 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, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]
We need to ensure that we embed that balance in harassment provisions in the Bill.
During the evidence sessions, Professor Biggar said:
“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. That is obviously a dampener on free speech. The Bill will not resolve that”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 30, Q59.]
New clause 12 seeks to harmonise the relationship between promoting academic freedom and freedom of speech with the legal concept of harassment in a way that could act as a counterweight to potentially expansive interpretations of harassment by universities and management. Professor 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.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43, Q80.]
Dr Bryn Harris said that
“the explanatory notes of the 2010 Act, as enacted, quite clearly say that in making findings of harassment, courts should take into account academic freedom. I think there is a lot that can be done that would not substantially change the Equality Act, but that would clarify how it applies in the academic context.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q169.]
Once again, we are seeking to clarify and tighten the legislation on harassment, which is why we tabled new clause 12.
Michelle Donelan
New clause 12 seeks to amend the provisions relating to harassment in the Equality Act 2010, which defines it as
“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.”
The new clause would provide that where a case concerns the conduct of an academic staff member of a registered higher education provider, in deciding whether the conduct has that effect, the importance of freedom of speech and academic freedom must be taken into account. The new clause would amend section 26 of the Equality Act—the general definition of harassment that applies to all areas covered by the Equality Act—rather than chapter 2 of part 6, which deals with further and higher education.
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 right of freedom of expression, as set out in article 10 of the European convention on human rights, and academic freedom. The explanatory notes to the Equality Act state that specifically in relation to determining the effect of unwanted conduct. Guidance has made it clear that the harassment provision should not be used to undermine academic freedom.
It is also important to note that, under the Equality Act, harassment has both a subjective and an objective element. It is not just based on the views of the person making the complaint. The Act provides that, in deciding the effect of the unwanted conduct, the complainant’s perception must be taken into account, but so too must the circumstances of the case and whether it is reasonable for the conduct to have that effect.
New clause 12 would potentially override that by adding a new factor that must be taken into account when deciding whether the conduct of a member of academic staff at a higher education provider constitutes harassment: the importance of freedom of speech and academic freedom. As a result, it could alter the balance that constitutes unlawful harassment and undermine existing protections from harassment in the Equality Act.
I believe that the terms of the Equality Act already address the concerns raised by the new clause, and it would not be appropriate to amend it in that way. It is, of course, vital that freedom of speech generates rigorous debate and advances understanding. To uphold freedom of speech in higher education, students and staff members must be able to express ideas within the law that may be controversial, unpalatable or even deeply offensive. As such, students’ learning experience may well include exposure to course material, discussions or speakers’ views that they find offensive or unacceptable, but that is unlikely to be considered harassment under the Equality Act.
I hope Members are reassured by that and agree that the new clause is not necessary. As ever, we have sought in the Bill to strike an appropriate balance between protecting individuals from harassment on the one hand and securing lawful freedom of speech on the other. Amending the Equality Act in this way would risk unsettling that balance.
Question put, That the clause be read a Second time.
Michelle Donelan
On a point of order, Mrs Cummins. I will take this opportunity to thank you and our other Chair for your excellent chairing of this Committee. I also thank all the Clerks, who have facilitated our Committee, and all hon. Members for the very productive and extensive debate on each of the measures in the Bill.
Matt Western
Further to that point of order, Mrs Cummins. I will just add my thanks to you and to Sir Christopher Chope for your sterling work as Chairs of this Committee.
I also express thanks to both the Clerks for their great assistance in assembling the amendments; it was the first time I had to do that, so I greatly appreciated the support and direction that they gave me. I thank the Whips for putting all the work of the Committee together, and I thank all members of the Committee for the spirit of engagement that we have had.
Sir John Hayes
Further to that point of order, Mrs Cummins. The right hon. Member for Hayes and Harlington proposed me earlier as the spokesman of the ordinary members of this Committee, or something like that, so I thank the Minister and the shadow Minister for the way that they have performed in this Committee. It is always a challenge for both Ministers and shadow Ministers to maintain the attention of those of us who do not hold those great offices, but they have done so with style and aplomb.
Bill, as amended, to be reported.