Higher Education (Freedom of Speech) Bill (Twelfth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe 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 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.
The Lord Commissioner of Her Majesty's Treasury (Michael Tomlinson)
indicated assent.
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—
The Chair
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.
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.
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.
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.
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.