Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Wednesday 2nd November 2022 Grand Committee

Debate on Amendment 12 resumed.

[Earl Howe (Con)]

My Lords, as the Committee will be aware, our debate on Monday on academic freedom and associated issues was paused following the contribution of the noble Baroness, Lady Thornton. I should now like to pick up the various strands of that debate and respond to questions and points raised by noble Lords.

Amendment 12 from my noble friend Lord Sandhurst and the noble Baroness, Lady Fox, seeks to ensure that the academic freedom of visiting speakers is protected under this Bill, and that academic staff suffer no detriment because they have exercised their academic freedom.

First, on visiting speakers who are academic staff elsewhere, I assure the Committee that the Bill as drafted already protects such individuals, but as visiting speakers, rather than as academic staff. The protection of academic staff in new Section A1(7) makes clear that the protection is from losing their jobs or privileges at the provider, or from the likelihood of their securing promotion or different jobs at the provider being reduced. In other words, it is effectively dealing with an employment situation. Such protection would not make sense in the context of an academic speaker who works at another institution. This does not mean that the protection is less for such a visiting speaker, but it is different in nature because of the different relationship of the speaker to the university.

As for prohibiting detriment, the amendment would not allow for any circumstance in which the exercise of academic freedom could result in detriment imposed by the provider. It should be noted here that academic freedom enjoys a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression under Article 10. However, an outright prohibition of detriment against an academic because they have exercised their academic freedom can be right, as there may be circumstances that mean that action by the provider including dismissal is the right response. If an academic has breached their employment contract or broken the law in some way, they cannot rely on a claim of academic freedom to avoid all consequences.

Amendments 14 and 17 seek to amend the definition of academic freedom in new Section A1 specifically to protect an academic’s freedom to criticise an institute at which they work and other activities included in the UNESCO recommendation of 1997. The UNESCO recommendation refers to

“the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies”.

Let me make it clear that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works.

I turn to the UNESCO definition. The Bill as drafted also protects the right to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, as I have already said, and freedom from institutional censorship. However, as for freedom to participate in professional or representative academic bodies, academic freedom as defined in the Bill is a specific element of freedom of speech overall. The Bill covers verbal speech and written material but does not cover the act of affiliating with or joining an organisation. I was already aware that this is an issue that the noble Baroness, Lady Falkner of Margravine, was interested in as chair of the Equality and Human Rights Commission, so I am glad to be able to put that on the record.

Amendment 15, tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith, distinguishes between freedom of academic speech within the academic context and freedom of speech for academics and other citizens within the wider public sphere. It is important to state first of all that academic speech is protected under the Bill as part of freedom of speech more generally. The protection is the same for academic staff as compared to other staff and students, but the Bill makes clear that academics should not be at risk of losing their jobs or privileges or of damaging their career prospects because of their speech.

The amendment is similar to a previous provision in the Bill that set out that academic freedom under the Bill meant freedom of academic staff within the law and within their field of expertise. The Government listened carefully to the issues raised during the passage of the Bill in the other place, noting the concern that the definition of academic freedom was too narrow. In fact, the provision was a reflection of Strasbourg case law, and we were clear that it should be interpreted broadly, but we wanted to avoid any perception of such a limitation. We therefore decided that it would be appropriate to remove the “field of expertise” provision, which I think was a widely appreciated outcome. I hope the Committee will appreciate that explanation of how the definition of academic freedom in the Bill has developed.

Amendment 16 seeks to remove from the definition of academic freedom the reference to “controversial or unpopular opinions”. The purpose is to understand whether, where such opinions are not based on evidence, they should be included in the protection of academic freedom. The Bill builds upon the definition of academic freedom that already exists within the Higher Education and Research Act 2017. That definition goes back at least as far as the Education Reform Act 1988, so it is a long-standing one, and it includes the freedom to put forward controversial or unpopular opinions. Academic staff in our universities should feel safe to put forward controversial or unpopular opinions and ideas, whether or not they are based on evidence.

As I said at Second Reading, free speech is the lifeblood of a university, allowing students and staff to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge. Limiting freedom of speech to areas that are not controversial or unpopular would make the definition of academic freedom in this context anodyne and narrow. Equally, limiting freedom of speech to areas that are only supported by evidence would unnecessarily narrow the scope of academic freedom under which academic staff should be free to roam the full spectrum of knowledge and ideas.

Amendment 18 seeks to ensure that an academic is fully protected from adverse consequences to their job, privileges and career prospects. The current drafting of new Section A1(6) refers to the risk of being adversely affected. This covers both the risk of adverse effect and the actual adverse effect, since in the latter case the academic must first have suffered the threat before the occurrence. Accordingly, should a member of academic staff find themselves actually adversely affected as a result of exercising their freedom of speech—having lost their job, for example—they would be covered by the academic freedom provisions of the Bill.

Amendment 19 seeks to add further protection for academic staff from the risk of losing responsibilities or opportunities. I assure noble Lords that the Bill as drafted would already protect an academic from such a risk. First, in addition to the wording relating to privileges, there is already reference to the risk of losing one’s job or the likelihood of securing promotion or a different job being reduced. More importantly, I want to be clear that academic freedom for the purpose of the Bill is considered to be a subset of freedom of speech—a distinct element with particular considerations, within that broader concept—so the main duty to take reasonably practicable steps to secure freedom of speech includes the duty to secure academic freedom. If a person suffers loss as a result, whether because of their academic freedom or freedom of speech more widely, then they can seek recompense through the new complaints scheme or, as we shall discuss later, using the tort.

Amendments 20 and 23 in the name of the noble Lord, Lord Wallace of Saltaire, are, as was explained, intended to probe the practicality and appropriateness of the intrusion of the Bill into university promotion and appointment processes. It is important that the Bill’s definition of academic freedom goes beyond referring to the risk of losing one’s job or privileges and that it should also cover applications for promotion or another job at an institution. This is not currently covered by the existing legislative definition of academic freedom. An academic should not be held back from progressing their career within a university because they have questioned or tested the received wisdom, or put forward new and unpopular or controversial ideas. It is vital that academics can research and teach on subjects and issues that may test the boundaries, otherwise our higher education system would wrongly be limiting itself, which would disadvantage everyone.

Equally, this protection should not be limited to jobs within a university, otherwise academics may find it hard to progress their careers by moving to another institution. That is why we are applying a similar measure of protection to external applicants for academic appointments. The Government believe that freedom of speech in the context of higher education is so important that the provisions set out in the Bill that will apply to the promotion and appointments process are indeed appropriate and necessary.

Amendment 21 seeks to protect academic freedom under the Bill, regardless of the potential consequences for the reputation of the provider. The approach taken in the Bill is to impose a duty on providers to take reasonably practicable steps to secure freedom of speech within the law, including academic speech. A new aspect of this duty is that they must have particular regard to the importance of freedom of speech when considering what steps are reasonably practicable. The requirement to have “particular regard” to the importance of freedom of speech could, in a particular case, prompt a provider to prioritise freedom of speech over another right. However, this would remain subject to its assessment of what is reasonably practicable, and would need to be lawful. This test emphasises the significance of freedom of speech within the law and the need to protect it, where it is reasonably practicable to do so.

I come back to a point I made on an earlier group. Nothing in the Bill prevents a provider looking at the statements or utterances of an academic and considering whether that individual has adhered to their employment contract, whether he or she is upholding accepted academic standards and/or the values and reputation of the department and the university. Again, the reasonably practicable test allows for case-by-case decisions to be made, taking account of all the relevant factors. But it is important to recognise that a provider in this context is an employer, as I said, and that will give them the right to go through the deliberative processes that I have just outlined.

In conclusion, I hope my remarks have provided noble Lords with reassurance that the Bill, as drafted, is sufficient to protect academic staff in exercising their academic freedom

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[Lord Collins of Highbury (Lab)]

This has been a really informative debate. Fundamentally, the noble Baroness, Lady Falkner, has set it in the proper context. I am not sure which hat she was wearing but whichever it was, this has been put in context; it is about balancing duties.

I must admit that, the more we discuss the clauses in this Bill in detail, the more I think about unintended consequences. If we have existing duties and responsibilities, why have they not worked? Why is it that Governments immediately resort to legislation rather than thinking about what is actually going on and asking what powers that they have could be better utilised? On the first day in Committee, a number of noble Lords made precisely that point. They highlighted where they think that things have gone wrong, but did not see this legislation as being particularly the right mechanism for putting it right. This debate has been extremely useful.

I must admit that I found the contribution from the noble Lord, Lord Mann, enlightening. My tendency is to look at my own personal experience at university—many, many years ago. There was quite a lot of hostility and demonstrations, and certainly some of the extremists that the noble Baroness, Lady Fox, talked about—maybe even the noble Baroness herself, as I suspect that we were both at the same university—frequently tried to stop me speaking on behalf of the Labour Party. By the way, I like the idea that I have the luxury of speaking in a personal capacity; maybe we should tell Conservative Central Office that that is the case—though I am tempted not to do that.

At the end of the day, what we have here is agreement on fundamental principles but disagreement about how you best achieve them. Invariably, there are competing interests at stake when speakers are invited to our campuses but, as the noble Lord, Lord Mann, said, freedom of speech is not a trump card. I make that point to the noble Lord, Lord Moylan. He may be able to qualify his words but, fundamentally, as the noble Baroness, Lady Falkner, said, those words do put it into a hierarchy, which I think is particularly dangerous.

Whether we like it or not, universities have a broad range of responsibilities, and not only to academic staff and students; they are also big employers and so have a duty to other staff as well—particularly when it comes to statutory legislation such as that on health and safety, which is something they must take into account when exercising these responsibilities.

As the noble Lord, Lord Mann, said, students have a right not to be harassed or subjected to hate speech. Most importantly, as he said, they have a right to protest and to say that the opinions being expressed by somebody who has been invited to their university are abhorrent. When I was at university, extremist religious faith groups were saying that my sexuality represented an evil thing that needed to be banned and stopped. Fortunately, we have moved on and do not allow that in quite the same way. If a religious fundamentalist came here, I would expect to have the right to say that I found their opinion abhorrent. The noble Lord, Lord Mann, was absolutely right, and the case that he used to illustrate this is an important one.

When I looked at the Bill’s Committee stage in the Commons, I saw that points were made, with reference to the evidence sessions, about how the Equality Act could be used:

“Professor Stephen Whittle from Manchester Metropolitan University acknowledged as much in the Bill Committee, recognising that the Equality Act would afford protection only if the speech were directly addressed to the complainant. That is important because front groups such as Hizb ut-Tahrir, which is not a proscribed organisation but which often espouses antisemitic views, could come on to campus under the guise of freedom of speech.”—[Official Report, Commons, 13/6/22; col. 80.]


There is real concern here about how we must have that balancing act and ensure that people are protected. The example from the noble Lord, Lord Mann, about a family member of someone who suffered the consequences of terrorism, is a really important one.

At the end of the day, we have to try to take into account the sentiments contained in Amendments 29, 32 and 44 and ensure, as the noble Lord, Lord Smith, said, that we recognise those balancing responsibilities. As the noble Baroness, Lady Falkner, said, it is important that this proposed law does not inhibit the balancing of those responsibilities. I certainly have a lot of sympathy for the amendments in the name of the noble Lord, Lord Mann.

[Earl Howe (Con)]

My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.

Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.

I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.

As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.

[Lord Mann (Non-Afl)]

I thank the Minister but, to clarify, the case I cited was not stopped by Prevent. Prevent was in place. This was an actual example, not a theoretical one, but I do not want to name the college or identify the student in any way. It was perfectly lawful under Prevent; Prevent did not stop it and was not party to it. As an actual example, I think it is a good illustration.

[Earl Howe (Con)]

I was making the point that the case he used to illustrate the issue would have been likely to engage Prevent even if the Prevent considerations had taken second place to the decision to promote freedom of speech. I do not disagree with the noble Lord in the way he suggests.

This leads to the general point that, to assist it to discharge its duty of care, a provider needs to ensure that it has in place effective and robust systems, policies and procedures for supporting and managing students, and that training and awareness-raising is provided for staff. Such a duty of care does not conflict with the duties in this Bill. The requirement to take reasonably practicable steps allows providers to balance that duty with other duties and responsibilities to students, staff and members.

Amendment 35 from my noble friend Lord Moylan would add a new provision to the public sector equality duty in the Equality Act 2010, whereby public authorities would need to have particular regard to their free speech duties. The amendment raises an important point. Providers are subject to different duties, and it is vital that they balance them appropriately. However, the Government are clear that the duties in the Bill will not override existing duties under the Equality Act, nor will those existing duties override the duties in the Bill. The noble Baroness, Lady Fox, cited the briefing from SOAS, which I have read. The briefing is absolutely incorrect to suggest otherwise. We need to remember that the public sector equality duty is a “due regard” duty.

There have been occasions when the Equality Act has been misinterpreted by providers—for example, as to whether the conduct is harassment—but the Office for Students will publish guidance to help bodies under this Act understand their duties and apply them. Providers will be required to take reasonably practicable steps to secure freedom of speech. In deciding what is reasonably practicable, they must have particular regard to the importance of freedom of speech. This does not mean that freedom of speech must always outweigh other considerations but indicates that it is a very important factor and will need to be weighed against other factors, including the public sector equality duty.

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[Baroness Chakrabarti (Lab)]

My Lords, I will briefly probe the amendment of the noble Lord, Lord Moylan, and probe the Minister a bit by way of that amendment. I support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens of Birmingham.

On the latter, I lament this intrusion into university autonomy, which has been going on for some time. I listened carefully to the point raised by the noble Baroness, Lady Fox: what is a university? Clearly, universities are to be places of free speech but also of free inquiry and independence from the state. They predate all the legislation that we have cited, which is really quite special. I am concerned about regulatory creep—not on employment and non-discrimination but on the content of the actual academic enterprise, if I can put it like that.

I broadly support the noble Lords in their common-sense amendments and I do not think anybody should really disagree. I do not want the Office for Students and all the rest of this architecture to be needed, but if it is going to be there then surely the duty to provide guidance should be a “must”, not a “may”, once we have entered this arena.

The amendment of the noble Lord, Lord Moylan—I am using it as a means to probe the Minister—wants the universities to

“have particular regard to the need to … (a) eliminate unlawful interference with freedom of speech within the law and academic freedom”.

Surely he should want them to seek to eliminate lawful interference with free speech too. Some of the problems that he must be concerned about are where people are not putting bricks through windows or breaching the criminal law to intimidate but are just making it not very pleasant to have debate and free speech. If he is to bring his amendment back, I say in a spirit of bipartisanship that that is a drafting problem or has not been completely thought through.

My real probe relates to something that the noble Lord, Lord Stevens of Birmingham, said last time that I found particularly revelatory. Of course a university must be a place of free speech and debate, but it must also be a place of academic excellence, or at least of academic quality. Surely that must sit alongside free speech. A university is not just a debating society or the public square; it is a place of academic improvement, inquiry and even excellence. Despite my politics, I do not shrink from the word “excellence”.

My question to the noble Lord, Lord Moylan, is again on the territory that we opened up with the Minister last time: where in this proposed statute or any other, if we are going to be prescribing duties around free speech, are the duties to protect academic standards? It was the noble Lord, Lord Stevens, who opened up this issue in my mind and I have been worried about it for the last couple of days. If free speech trumps everything, or at least academic standards, and those standards and the duty to maintain them are not prescribed in law, what happens with bad science and fake facts? What happens when a person declares that they must be protected from management, and possibly even from losing their post, because they are just writing and teaching rubbish? Our students, who are now consumers, deserve better.

[Earl Howe (Con)]

I am not sure the noble Baroness was in the Committee when I covered that very point quite near the beginning of our debate today. I tried to cover it on Monday but I expanded on it today as well.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very much in favour of Amendment 31. To put a different emphasis on it from what there has been so far, the amendment by the noble Lord, Lord Moylan, is helpful in making a positive attempt at promoting free speech. The amendment says

“foster a culture of free thought and open-mindedness, in all decision-making concerning the provision of higher education and in conducting and managing research activities”.

It is that bit about promotion that is helpful in terms of shifting the emphasis of the discussion a little bit about how we should view the Bill.

I found that I was reading this small HEPI—if that is how you say it—pamphlet in preparation for the student union group of debates later on. I found it a really interesting little book. The foreword is by Professor James Tooley, the vice-chancellor of the University of Buckingham, which has also co-published the book. I should declare my interest that I am a visiting professor at the University of Buckingham. Professor Tooley says:

“For many academics, the focus”


is

“only on the negative, on the ‘sticks’ of the law”.

He advocates that we focus on

“the positive, the ‘carrots’ of the intellectual and social attraction of academic freedom”.

Many people have said that the problem with the Bill is that does not tackle the cultural issues—that it avoids the question of what has happened to the positive association of universities with academic freedom. One of the contributions earlier asked why the 1986 duties have not worked and what the point is of bringing them under the Bill. Quite a lot has changed since those duties were brought in in the sphere of academic freedom, which is why I believe we need to pass a version of the Bill, no doubt amended, but not to use it as a silver bullet that avoids tackling the cultural issues. Anything that the Bill does to foster the promotion of free speech is very important. The main thing that I would urge is that the status quo position of “leave it as it is” is not acceptable. That is the kind of complacency that I hear. Universities will not survive and the academic standards that have just been referred to will deteriorate.

There is a tendency to blame students when we look at what has changed recently; they are either disparagingly written off as “Generation Snowflake” or, more positively, posed as uniquely sensitive to the issues of oppressed identity groups—unlike previous generations, who have never understood suffering—and having a unique insight into them. A combination of both is true. I do not want to blame students, but it is true that, whenever I talk at universities on free speech, many of them talk about it as if it were a value from “ye olden days”. They sometimes say: “We respect your right to think that free speech is important, but we have other priorities.”

I often find that commitment to free speech, on and off campus, is under strain not among the young but among the grown-ups, as it were. At best, there can be a shallow, instrumental lip service paid to the value of free speech, with so many “ifs”, “buts” and caveats that it is barely there. There is hardly a compelling case for the positive virtues of free speech, but rather a grudging acceptance that it is important, always accompanied by an emphasis on how it can play a corrosive and dangerous role in society and lead to a toxic political culture, hate crimes and, as we have heard in this debate, all these charlatan quack scientists dragging down educational standards.

Even the emphasis that the Bill and everyone else want to place on free speech within the law as a qualifier feels a bit tepid, especially when Governments of all stripes have regularly infringed free speech through legislation. As we speak, we have a Government proposing a pro-free speech Bill at the same time as the Online Safety Bill and the Public Order Bill, which are hardly wildly pro-free speech pieces of legislation. On campus, we have seen lots of academics, rather than students, introducing things that have undermined the culture of academic freedom. Whether it is mandated courses in microaggressions or unconscious bias, people feel as though they are walking on eggshells.

It is very important that we use this legislation—this is why I like Amendment 31—to make a positive case for the inviolable moral good of free speech. There was a lot of coverage of the seminar in Cambridge where, as the newspapers described it, students were trained in free speech. One of my colleagues ran it, Alastair Donald from Living Freedom; Andrew Doyle, the author of The New Puritans, spoke on Milton and Dr Piers Benn on Locke. What was really fascinating was that the reports of the students who attended last night said things such as, “I thought that coming to Cambridge would be like this, but it hasn’t been until tonight”. They also said that they often feel constrained in what they can say at university by their own tutors tut-tutting if they say the wrong thing.

When I brought out my book ‘I Find That Offensive!’ in 2016, I was warned that it was exaggerated—of course, it ended up completely underestimating the problem—and that young people would hate it and shun me because it addressed “Generation Snowflake” and the culture of “safetyism”. The truth is that, when it was published, the people who hated it were the educational establishment; it got terrible reviews in all the educational press. The people who really liked it were students. I spent two years doing a tour of all universities speaking about it. The students said, “Phew, it’s a relief to have somebody talking about this. I had never heard arguments like this before. I never really understood the history or philosophy of free speech.” It was not that they all loved me or agreed with me; they were just glad that someone was prepared to have the open discussion and debate.

We have to use this piece of legislation to promote free speech and academic freedom as much as we can. I support Amendment 31.

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[Lord Grabiner (CB)]

My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.

I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.

[Earl Howe (Con)]

My Lords, this group of amendments relates to duties and powers to promote freedom of speech under the Bill. Amendment 31, tabled by my noble friend Lord Moylan, seeks to clarify the steps that a higher education provider or college would need to take in order to promote the importance of freedom of speech and academic freedom. This amendment would replace the duty to promote the importance of freedom of speech and academic freedom with a duty to have particular regard to certain matters, including the need to eliminate unlawful interference with freedom of speech and academic freedom and to promote and prioritise the particular importance of freedom of speech.

By replacing the duty as drafted, I suggest to my noble friend that this amendment would in fact weaken the duties under the Bill by replacing a duty to do something—the words, “must promote”—with a duty to “have particular regard”. Providers will already be required, under new Section A1, to take reasonably practicable steps to secure freedom of speech. In doing so, they will need to have particular regard to the importance of freedom of speech. As part of this, we would expect providers to consider many of the matters suggested by this amendment and do not consider it necessary to set these out in detail. Indeed, prescribing the matters to which providers must have regard in this way could have unintended consequences, and result in providers taking a less comprehensive and balanced approach to their duties overall.

My noble friend asked me why specifically I could object to his amendment. There is a good reason, as I have indicated, which is that the amendment would have the effect of removing the duty to promote the importance of freedom of speech and academic freedom. That is a new and important duty, created by the Bill, that will drive forward a culture where freedom of speech is fostered and celebrated and students, staff and visiting speakers feel confident to express their views freely.

Amendment 33 in the name of my noble friend Lord Willetts and the noble Lord, Lord Stevens, seeks to amend the duty to promote the importance of freedom of speech and academic freedom by adding a duty to have due regard to all the other relevant legal duties. We have already discussed the issue of the interaction of the Bill with other duties. The main duty in the Bill is to take reasonably practicable steps to secure freedom of speech within the law. That means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. So the duty does not override existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination nor, for providers, the public sector equality duty or the Prevent duty. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

I agree that the University of Essex report showed that there were misunderstandings of how the Equality Act should be properly applied, but we hope and trust that the measures in the Bill will, as I said earlier in response to a point made by the noble Lord, Lord Collins, serve to minimise those misunderstandings.

As I have previously said, the duty is derived from the current legislation in the Education (No. 2) Act 1986, so it is not new. Providers have been balancing their legal duties for many years: in relation to unlawful discrimination and harassment under the Public Order Act 1986 for 35 years, in relation to the public sector equality duty since 2011, and in relation to the Prevent duty since 2015. However, the new duty to promote the importance of freedom of speech and academic freedom might mean that a provider speaks out publicly to defend the freedom of speech of a staff member in the face of calls for them to be removed for something they had said, or it might involve giving talks to staff and students on the importance of freedom of speech in democracies.

We come back to an objective that I have mentioned before, which is the need in some institutions for a change of culture. Noble Lords will appreciate that the duty to promote is a high-level duty designed to give rise over time to a change in culture on university campuses. It is not a duty to promote freedom of speech. Rather, it is a duty to promote the importance of freedom of speech. As such, I do not believe that it needs the additional “due regard” duty as proposed.

Amendments 54, 55 and 56 in the name of my noble friend Lord Willetts seek to require the Office for Students to consult on and publish guidance relating to the promotion of freedom of speech and academic freedom, and to require it to give advice on that in a timely manner. Clause 5 inserts new Section 69A into the Higher Education and Research Act 2017. This provides that the OfS may identify good practice and give advice to providers and colleges on the promotion of freedom of speech and academic freedom. This wording is entirely based on Section 35 of the 2017 Act, which provides that:

“The OfS may … identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers.”


Accordingly, the provision does not concern the new duty on providers and colleges to promote the importance of freedom and speech and academic freedom in new Section A3 that I have just described. Rather, it concerns the duties of the OfS and the advice that it can give to providers and colleges generally about how they can promote freedom of speech on campus.

I hope my noble friend Lord Willetts will be reassured to know that Section 75 of the 2017 Act, as amended by this Bill, will require the regulatory framework of the OfS to include guidance for providers on the general ongoing registration conditions, which will now include specific registration conditions on free speech in accordance with Clause 6, as well as guidance for student unions on their freedom of speech duties. Therefore, it will be here that the OfS will set out guidance on the new duty under Section A3 to promote the importance of freedom of speech and academic freedom, which must be complied with under the registration conditions.

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[Lord Collins of Highbury (Lab)]

Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.

I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.

[Earl Howe (Con)]

My Lords, this group of amendments relates to impartial research funding. Amendment 34 in the name of my noble friend Lord Moylan would introduce a new duty to require higher education providers to take reasonable steps not to refuse to grant funds for research because of a recipient’s lawful principles or political opinions.

Amendments 45 and 46, also tabled by my noble friend, seek to make clear, first, in respect of donations and sponsorship to registered higher education providers and, secondly, in respect of funding through UK Research and Innovation, that the donor, grantor or provider may never restrict the freedom of speech of those working under the funding. Amendment 53 in the name of the noble Lord, Lord Sikka, is about the awards of grants for academic research.

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[Baroness Thornton (Lab)]

My Lords, my main regret about this debate is that my noble friend Lord Triesman did not mention the London School of Economics, which is where I went. While we were having this debate, I looked it up and there are hundreds of societies at the LSE. I enjoyed the fact that, if you look at the history of the student union—the student union at the LSE is the oldest in the country—you find that I feature in there, having led occupations of the director’s studio for the nursery campaign in the early 1970s. I was trying to think how on earth we would have coped with this legislation when I was a member of the student union executive at the London School of Economics in the early 1970s.

My noble friend Lord Triesman was quite right. As the noble Lord, Lord Smith, said, I do not think what is in the Bill at the moment meets the test of what will actually work and be able to be delivered by our student bodies. It is too complex. My understanding is that student unions also have the Charity Commissioners as part of their regulation, so that adds extra complexity to this issue.

I think I agree with other noble Lords that the Government need to look at this issue again. The noble Baroness’s amendment might provide a good basis for something that is simpler and which can actually be delivered by 18 and 19 year-olds. I look at the Bill team, and some of them are not that far away from having been rather young. They need to think back to what they would have done in their student days and how they might have been able to protect the right of freedom of speech then.

This is one of those occasions when the Government might need to look at this again and ask whether it will work as it is intended. Have discussions taken place with student union representatives in a process of asking them how this will work and whether it will be able to be carried through?

In case noble Lords are looking it up, my name does not appear but I did lead the occupation of the director’s studio for the nursery campaign.

[Earl Howe (Con)]

My Lords, Amendment 47 in the names of the noble Baroness, Lady Garden of Frognal, and her colleague the noble Lord, Lord Wallace of Saltaire, seeks to change the way in which student unions are regulated under the Bill.

This amendment would remove the duties on student unions in Clause 3, and instead add them to the duties on providers under the Education Act 1994. The addition of these requirements to that Act would mean that the duty would be on the governing body of the provider to

“take such steps as are reasonably practicable to secure”

the various requirements set out in the amendment and no direct duties would be imposed on student unions. Amendment 47 would therefore make Clause 7 unnecessary. I note the wish of the noble Baroness to remove the clause from the Bill altogether.

Extending the legislative framework to student unions at approved fee cap providers under Clause 3 is a significant step, which fills a gap in the current legislative framework. Freedom of speech on our campuses is an essential element of university life. Student unions play a vital role in this, providing services and support, representing their members and working closely with their provider. It is important that these bodies are accountable for their actions.

There are examples of where student unions have failed to secure freedom of speech. Notably, the student union at Swansea University failed to support members of the university’s Feminist Society, who were threatened and abused for supporting Kathleen Stock—a name I am sure we recognise by now. Rather than protect their freedom of speech, the student union removed the society’s email account and profile page from its systems, denying this group an important platform for reaching others. This incident illustrates the need for action to ensure that student unions are subject to duties on freedom of speech, since we cannot allow that sort of behaviour to continue unchallenged and unregulated.

I noted the support for the amendment expressed by the noble Lord, Lord Smith of Finsbury, but if we took the approach proposed in Amendment 47, the duty would be on the provider to take reasonably practicable steps to secure the various freedom of speech obligations, as I have said, but there would be no requirement on student unions to comply with those requirements. If they did not, this would potentially only result in an internal dispute with the provider.

Although the Charity Commission is involved in regulating student unions which are charities, that is only in respect of charity law. There would also be no oversight of whether or not providers comply with the duty imposed on them. This means that there would be no enforcement or regulatory action taken if they failed to do so.

Finally, and perhaps most importantly in the context of the new regime that this Bill will establish, there would be no means for individuals whose freedom of speech has been improperly restricted to seek recompense. Since the Bill will impose new duties on student unions, it is also necessary that mechanisms are in place to ensure that compliance with the freedom of speech duties of student unions is monitored effectively and that action is taken if those duties are infringed upon.

The noble Lord, Lord Triesman, read into these provisions a burdensome requirement placed on every single student society in every university in England. I make it clear to him that the duties are on student unions and not student societies, even though they may be affiliated with their student union. In practice, this means that only the student union—that is to say, one union per provider—will be regulated.

Clause 7 therefore extends the regulatory functions of the Office for Students so that it can regulate these student unions. This new provision will require the OfS to monitor whether student unions are complying with their duties under new Sections A5 and A6 as inserted by Clause 3. If it appears to the OfS that a student union is failing or has failed to comply with its duties, it will be able to impose a monetary penalty.

[Baroness Thornton (Lab)]

I need some clarification from the noble Earl. I suspect that most of the things that have caused problems have been organised by the societies and all the organisations that are part of the student union. At the LSE, we had a rugby club that invited strippers to its annual dinner—you can imagine how well that went down—but it was not the student union that dealt with that. It was not its job to deal with what the rugby club was doing. This was a very long time ago, but lots of the things that we have been calling in aid in this Bill have not been organised by student unions. Some will have been, but most will have been organised by their constituent parts—the societies and other parts of the student union.

[Earl Howe (Con)]

I take the noble Baroness’s point. Those societies will be expected to abide by a code of practice which will be promulgated to all students. While the societies will not be subjected to the full extent of the regulation that I have been talking about, expectations will be placed on them. I cannot yet tell the noble Baroness what will be contained in the code of practice but, as I have mentioned, that code will receive appropriate publicity.

[Lord Triesman (Lab)]

To be very clear, I have no difficulty at all with the concept that people in student unions who impede the free speech and academic freedom of others must be dealt with. For the record, I do not have a second’s question about that. I just want us to do things in this Bill that we can actually do. I wonder whether the noble Earl, Lord Howe, might discuss this offline with some of us who have helped to run these kinds of institutions in the past to see whether there is a practical solution to the problem that my noble friend has just illustrated. I do not know about the LSE, but I will lay odds that most student unions find out what their rugby clubs have done months after the event, if they find out at all.

[Baroness Smith of Newnham (LD)]

They might find out in the newspapers.

[Earl Howe (Con)]

I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.

[Lord Collins of Highbury (Lab)]

The Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.

[Earl Howe (Con)]

I bow to the noble Lord’s superior knowledge on this. If noble Lords will allow, I will conclude.

I mentioned the possibility of a monetary penalty, which was raised by the noble Baroness, Lady Garden. The power to impose a monetary penalty is based on the existing enforcement regime for higher education providers and is intended, obviously, to encourage compliance.

New Section 69B will also require the OfS to maintain and publish a list of student unions at approved fee cap providers. This will make it clear which student unions the OfS has been informed by its providers are subject to the duties in new Sections A5 and A6. It will also require those student unions to provide the OfS with information it may require for the performance of its functions. These are new regulatory functions, intended to ensure compliance by student unions with their new duties. Together with Clause 3, this clause will ensure that freedom of speech is protected by not just higher education providers but student unions.