Higher Education Regulatory Approach
(1 day, 13 hours ago)
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Baroness Barran (Con)
My Lords, on this side of the House we very much welcome the decision of Government to commence the Higher Education (Freedom of Speech) Act, but we deeply regret the delay, the changes the Government propose to make and the extent of the continuing uncertainty and delay over several parts of the Act.
One of the areas of inconsistency and confusion that the Government have introduced relates to complaints. The Government have chosen to create two different routes for complaint: via the Office for Students for academics and via the OIA for students. I would be grateful if the Minister could explain the rationale for separating them. Would it not be simpler to abandon the jurisdiction of the OIA and give all its powers to the newly empowered OfS? Can the Minister explain what the Government think will happen if—as is perfectly possible—standards of protection diverge in some way and one group is given stronger protection than another? What happens if a member of staff complains to the OfS and a student complains to the OIA on the same case?
Sticking with complaints, the Government have said that they will amend the law governing the operation of the OfS complaints scheme so that it is not obliged to consider every complaint. However, the Act already says that the OfS can dismiss a complaint on the basis that it is either frivolous or vexatious. I would be grateful if the Minister could explain why this is necessary. What will be the threshold for the complaints the OfS will consider? Will there be an appeals mechanism if the OfS does not judge that a complaint meets its threshold?
The Government have also created a specific gap in relation to student unions. The Secretary of State said that she fully expects
“student unions to protect lawful free speech, whether they agree with the views expressed or not”.—[Official Report, Commons, 15/1/25; col. 380.]
But the Government have said that they want to remove the provisions about student unions. Many of the worst and most egregious cases of cancellation, affecting a number of Members of your Lordships’ House, have involved student unions.
Given that the Government both accept the existence of a free-speech problem on campuses and the need for increased standards of protection, does exempting student unions from the scope of the Act not leave a serious gap in effective protection? Going forward, how do they expect to deal with cases where a cancellation, which would have been unlawful if done by a university or college, is done by a student union?
We are also in the dark about timing. The Government have said that they intend to bring into force various parts of the Act and seek to amend and then bring into force others. Can the Minister set out for the House the timescale for both processes? When will the statutory instrument bringing into force those sections which the Government will not seek to amend be laid before Parliament? When will the commencement date of those sections be? When will the Government seek to make the amendments they have proposed and when will they seek to bring those new sections into force? The start of the 2025-26 academic year seems a natural implementation point, but everyone involved in this area needs maximum certainty, so it would be helpful if the Minister could commit now, or commit to making a statement as soon as possible, setting out that timeline.
In the other place, the Secretary of State said that her decision to seek to repeal the tort clause was made to save universities and colleges expense by avoiding the risk of litigation. Can the Minister confirm that such a risk necessarily exists, even if the form of that risk takes the threat of actions for judicial review rather than civil litigation? Will she agree that, along with action under the complaints scheme, universities and colleges that disregard their duties under the Higher Education (Freedom of Speech) Act could face public law legal action, and that they must not see the removal of the tort clause as an excuse to drag their feet or ignore their legal responsibilities?
On foreign influence registration, we were very disappointed to see the removal of the monitoring of overseas funding changed, not only with what felt like very unfortunate timing but when the documents from the Free Speech Union judicial review have been revealed, which indicate that the potential impacts on English higher education institutions operating in China played a role in that decision. Can the Minister reassure the House that those decisions were not made with the Chancellor’s recent trip to China in mind?
I acknowledge the courage and energy of those academics who have campaigned to get this law enacted, including Dr Edward Skidelsky, who co-ordinated the letter of over 650 academics, Professor David Abulafia, Professor Alice Sullivan and Professor Abhishek Saha, as well as the women’s rights groups, including Sex Matters, led by the tireless Helen Joyce, the powerful legal interventions, including from Akua Reindorf KC and Dr Julius Grower, and the many groups that have campaigned on this issue.
At the end of this, we are left with more questions. If you were the governor of a university or responsible for managing these issues, what would you be doing now? How long are you going to have to wait until the position is clear? As so often has been the case since the election, why are the Government undoing something that had received full parliamentary scrutiny without a plan for what to put in its place? I suspect that I shall receive a long letter with answers from the Minister, but I live in hope for some answers now.
Lord Wallace of Saltaire (LD)
My Lords, Liberal Democrats welcome this Statement, but for entirely different reasons from those that noble Lords have just heard from the Conservative Front Bench. This provision removes parts of the Act that we opposed during its passage through Parliament, and we welcome that; we were not persuaded that the Act as such was necessary. It was driven by the right-wing culture war against the “liberal elite”, with the Conservatives taking their cue from the Republican right and Fox News as, sadly, they so often have done in recent years.
The Act contradicted Conservative and Liberal principles of respect for autonomous bodies and limits to government regulation and state interference. The costs of litigation imposed on cash-strapped universities threatened to be heavy. The burdens on student unions were likely to be beyond their capacity to manage. The proposed duplication of complaints schemes was badly designed. The requirements for accepting outside speakers virtually unconditionally potentially opened the door to Holocaust deniers, as well as to extremists of the right and left.
A number of universities clearly made mistakes in responding to student attempts to cancel academics and visiting speakers with whom they disagreed. I recall at least one vice-chancellor admitting in a private conversation the mistakes that he had made in responding to conflicting pressures. But it is not the first time that university administrations have made mistakes in responding to student protests—this is not new. I have been on both sides of student protests and staff responses since the 1960s, with changing political crises and student generations protesting on South African apartheid, Vietnam, civil rights and race inequalities, fossil fuel investments and tuition fees.
Previous British Governments had wisely left it largely to universities as autonomous bodies to moderate intolerant demands and teach their students—and some of their staff—to disagree well and respect those with different opinions. Some of today’s student radicals have been determinedly intolerant in defending identity politics, but many on the right have also become determinedly intolerant in their anti-woke crusade.
The question of foreign funding is also difficult and delicate—but also not new. During my time at the London School of Economics, we had an embarrassing controversy over a large Middle East donation, but we later accepted a larger donation from another Middle Eastern ruler, after whom one of the LSE’s buildings is now named. There are potential problems about undue financial dependence on funding from any foreign state, especially if it is a non-democratic state. Can the Minister explain further what the reference in the Statement means when it refers to taking
“more time to consider implementation of the overseas funding measures”?
What sort of consultation with the HE sector is intended, and how long might it take?
The Act as passed was disproportionate in responding to incidents that had failed to respect freedom of speech. It was also disproportionate in the regulatory and financial burdens that it imposed on universities and student unions. I hope that the Minister will reassert that freedom of speech is a principle to be cherished, recognising how difficult that can sometimes be—and it is not a weapon to be used in a Trumpian “war against woke”.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
I thank the noble Baroness, Lady Barran, and the noble Lord, Lord Wallace, for their responses to the Statement. I am glad that the noble Baroness welcomed the decisions made by the Government, which, when I addressed the House previously in response to an Urgent Question on this issue, I emphasised would be informed by careful consideration of a difficult and challenging issue. I believe that that is what the Government have undertaken to do.
I also share the noble Baroness’s admiration for those academics, many of whom I have spoken to as part of the consultation that we have done on this, in identifying the challenges in this really difficult area and the need for some of the protections offered by the legislation. I share with them a view that there should be an absolute commitment, which this Government have, to freedom of speech and academic freedom. It was, of course, a Labour Government who first enshrined freedom of expression in law through the Human Rights Act and suggested that higher education must be a space for robust discussion, intellectual rigour and exposure to new ideas. If you go to university, you must be prepared to have your views challenged, to hear contrary opinions and uncomfortable truths, to be prepared to argue for your own beliefs, and to accept that others may hold beliefs that you disagree with. Academics must be allowed to test the truth of the ideas that shape society and participate in a free exchange of ideas, including where that causes shock and discomfort.
The noble Lord is right that those are long-standing principles. However, while they have been long standing and not negotiable, this is a difficult and contested area that has not always had the senior or thoughtful engagement that it needs from university leaders, as the noble Lord concedes. That must change. That is why we gave careful thought to which elements of the legislation were appropriate to be commenced, which areas we thought needed repeal and which needed amendment.
On the complaints system, I was struck by the number of people who argued for the need for a form of redress and by those higher education institutions which argued about the burdensome nature of the tort and the ability for anybody potentially to take complaints under the previous legislation. It was asked why we should distinguish between students and staff. The OIA already has responsibility for considering student complaints and considers some complaints about freedom of speech. It will be much clearer for students to know where to go for any complaints. I am confident that the OIA and the OfS will work closely on complaints that come to them at the same time, as the noble Baroness outlined.
On the change to the complaints system, I have a strong expectation that one of the requirements to consider a complaint will be that it has gone properly through new internal processes that universities either are setting up or will set up. It is therefore appropriate that the responsibility on the OfS for the complaints system should be a power, not a duty, thereby enabling it to choose that the complaints which get to it have the strongest thematic and sector-wide implications.
We have decided not to commence provisions that would impose new duties on student unions, which are neither equipped nor funded to navigate a complex regulatory environment, with all the potential legal and regulatory costs that will entail. Student unions are already regulated by the Charity Commission, and we fully expect them to protect freedom of speech and the higher education providers within which they operate to support their student unions to do so. That is an appropriate balance to ensure that student unions come within the ambit of the spirit of what is happening here.
On whether a JR will pose the same threat of legal action as the tort, a judicial review does not bring with it the threat of damages in most cases, unlike a civil claim. That threat, linked to the tort, caused higher education providers concern about the burdensome nature of the tort and caused them to instruct lawyers earlier. Frankly, we decided that we would rather see tight resources in higher education going to support students and staff rather than to instruct and fund lawyers.
On the point about foreign influence and overseas measures, I thought more of the noble Baroness than to trot out the slur that the timing of this had been influenced by the Chancellor’s visit. She knows that this has been under consideration for much longer than that. This Government are committed to ensuring that our world-leading universities remain free from foreign interference. Providers should expect the OfS to take regulatory action if they allow foreign Governments to interfere in free speech or academic freedom, and it can already request information from providers about overseas arrangements. We are working at pace on the implementation of the foreign influence registration scheme, which will apply to universities across the UK, but we also want to ensure that, as we work carefully on this, we keep open options around the commencement of the overseas funding measures. We will return with more information about our decision on that.
On the timing of the legislation, as the noble Baroness asked, we will come forward with more information in a policy paper on the details of how our proposals will be implemented and legislated for. That will include more information about timing.
Baroness Falkner of Margravine (CB)
My Lords, I declare an interest as chair of the Equality and Human Rights Commission, which is the national human rights institution for Great Britain. Another interest is that we are an intervener on the proposed judicial review. It would not be wise for me to say much on the details of this Statement, but I put on record two things for the House. First, the Minister will know that the public sector equality duty is a fundamental part of the proposed litigation in this area, as well as the Government having a responsibility to have due regard to it. We are the regulator in that regard. I wrote to the Minister on 6 December, seeking an urgent meeting. The Statement says that a wide range of providers were consulted, but we were not, which is why I wrote to her. I also put on record—
Baroness Falkner of Margravine (CB)
Forgive me; I will address a point directly to the Minister. I am grateful that we are meeting next week, but we should have been consulted as part of that consultation. I say to the Government Whip that the clerks upstairs have told me that I need to declare these cumbersome interests every time I speak. I do not think it would be fair to the House for me not to declare them and make my points.
Baroness Anderson of Stoke-on-Trent (Lab)
I appreciate those clarifications, but I remind your Lordships’ House that this is questions on a Statement, not additional statements.
Baroness Smith of Malvern (Lab)
The noble Baroness probably identified the issue in her statement. The engagement of the EHRC in the legal case legitimately made it much more difficult for us to meet during the course of that process. However, as she identified, I have ensured that we can meet as soon as possible afterwards to discuss some of the substantive issues she raised.
Baroness Royall of Blaisdon (Lab)
My Lords, I remind noble Lords of my interests in the register and warmly welcome the proportionate way in which the Government are acting and my noble friend’s Statement. Free speech is the lifeblood of a university. This reconsideration of the Act certainly recognises that, but all universities also recognise that they have a duty to instil a culture in which free speech flourishes.
I have two swift questions. First, on the OfS power to consider complaints, how will it ensure that its actions are proportionate? Secondly, on the conditions of regulation, the Statement says:
“The OfS should have room to determine the best way to regulate on a case-by-case basis”.
Will Parliament be consulted in any way on how it regulates?
Finally, I say to the noble Baroness opposite that universities are already putting in place codes of conduct—for example, on freedom of speech—so they are acting already.
Baroness Anderson of Stoke-on-Trent (Lab)
The Minister has to answer the question.
Baroness Smith of Malvern (Lab)
I am looking forward to coming to the noble Baroness, but I will answer this question first.
I thank my noble friend and strongly agree that there is an appropriate role for legislation, as we have identified, and an enormously important role for culture, serious thinking and engagement. That perhaps needs to be focused on as well, particularly by those in leadership positions in higher education such as my noble friend. On the decisions around where the focus for the OfS should be, I put on record my admiration for the work of Dr Arif Ahmed as director of free speech, who will remain in his position. He will be able to work with higher education on some of the positive ways in which institutions can respond through best practice and discussions around identifying where the balance lies in the issues my noble friend raises.
I reiterate that I will come back with the policy paper on some of the other questions my noble friend raises. I very much welcome the fact that universities have begun to take action on developing the codes of practice and on putting in place the academic bodies and committees that will consider some of these very difficult issues around challenges to academic freedom. On the point from the noble Baroness, Lady Barran, about what people should be doing, they should be continuing in a spirit of engagement with those areas of the legislation that we have been clear we are going to commence, and continuing the important work that has started.
Baroness Garden of Frognal (LD)
My Lords, when the Government initially halted the legislation, we Liberal Democrats agreed that defending free speech at university was important but that the legislation was unnecessary and overbearing. As the noble Baroness, Lady Royall, just said, free speech is obviously integral to universities. Can the Minister explain what new information came to light that requires the reintroduction of the legislation? Can she also assure us that universities will not be exposed to financial risk as a result of it?
Baroness Smith of Malvern (Lab)
It was exactly the position that the noble Baroness has taken that brought us to this conclusion. Freedom of speech and academic freedom are at the heart of what is good and important about our universities, but perhaps there had not been the focus on them that was necessary, particularly at a time of some quite contested ideas and difficult challenges. That was important, but it was too important, frankly, to be left to legislation that, while important in many areas, on occasion looked as if it was more about creating a headline than solving a problem. The burdensome elements of the legislation, particularly around the tort and the requirement to, essentially, lawyer up earlier on, and the impact that may well have had on universities’ decisions and the concerns of vulnerable and minority groups as a result, meant that it was right to pause the commencement of the legislation and find a more pragmatic, balanced and less burdensome way of delivering a nevertheless important objective.
Lord Lucas (Con)
My Lords, I very much welcome what the Minister says. I look forward to the legislation when it comes, and to it being effective. Would she take a look at extending the provisions on non-disclosure agreements to free speech issues? Knowing what has happened, what has gone wrong and how it has been solved is a really important part of improving practice, and having that supressed by NDAs does not work. Will she also look at how Clause 16 of the Employment Rights Bill will affect free speech at universities? Will she look at the effect of both of those issues on schools?
Baroness Smith of Malvern (Lab)
I will limit myself to the provisions on non-disclosure agreements within this legislation. It is our intention to commence the ban on non-disclosure agreements for staff and students at higher education providers in cases of bullying, harassment and sexual misconduct. The other provisions and requirements will ensure that we do not see a situation where people are being silenced when they actually need to be involved in serious consideration, with the ability to take their concerns externally to a complaints system if they are dissatisfied with what is happening within the institution.
Lord Mann (Lab)
The Minister will recall that I advised strongly when she was first appointed that she takes her time to get this right, considering my remit on anti-Semitism, because getting this right is essential. I commend the removal of the tort. I have met every single university leader in this country as part of my remit, and in every discussion I have advised them to de-lawyer the situation and resolve it within the universities.
My question to the Minister is referenced directly in the Statement. The Government still have available a £2 million innovation fund for dealing with anti-Semitism. Would the Minister look very seriously at how some of that fund could be used creatively to spread the good practice on how to have difficult conversations that has been developing over the last year in a number of our universities, so that those who are succeeding in doing that can do more of it and spread their expertise to further types of difficult conversations, and to other universities and beyond?
Baroness Smith of Malvern (Lab)
I thank my noble friend for his advice at the point at which we were making the decision and for his ongoing commitment to ensuring we are tackling anti-Semitism widely in higher education. I undertake to consider the use of that element of the £7 million of funding that the Government have made available on anti-Semitism for precisely that purpose.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome back the Higher Education (Freedom of Speech) Act; I never wanted it to go away. I will push the Minister further on one of the points from the noble Baroness, Lady Barran. Can the Minister address those worried free speech societies, debating societies and ordinary students—not student bureaucrats—who feel that the removal of duties on student unions is like “a Machiavellian betrayal”, according to Student AFAF? This is because student unions are often at the vanguard of the really quite vicious hounding of student members; Jewish students have often made this point to me. The Charity Commission just does not cut it.
Finally, will the Minister put to bed this notion that the Act was ever part of a Trumpian war on woke or a hate speech charter? It was a good faith, genuine attempt at tackling spiralling attacks on free speech. We should all view it in that way, even if we disagree on the detail.
Baroness Smith of Malvern (Lab)
I hope that is the approach that I have tried to take. With that pragmatic approach, I reiterate that I expect student unions to behave in a way that safeguards and promotes speech and events with which they perhaps as a majority do not agree—that is an important part of the experience of being a student—but to impose on them the same level of burden imposed on the institution itself was unreasonable. That is why we took the decision that we did.
The Lord Bishop of Manchester
My Lords, I am grateful for the opportunity to ask questions on this Statement, particularly as the noble Lord, Lord Mann, who is sitting behind me, raised issues of anti-Semitism. In Manchester, where I live among a very large Jewish community, it is an ongoing issue that we are always very sensitive to.
We have heard a lot about free speech, which, unsurprisingly, I am in favour of, and of difficult conversations from the noble Lord, which, again, I am in favour of. But sometimes the language shades over into what can only be called mob intimidation. It is about how we make that distinction between a difficult conversation and people being intimidated by loud, vociferous, angry behaviour that seeks deliberately to make them uncomfortable.
We had a really good session in this House a couple of years ago, looking at an amendment about the rights of protesters near abortion clinics and the rights of women to access those services. I worked with Peers from all sides of the House and we came up with something that commanded massive support in the House and that I hope is proving workable. Can we just get that balance between people’s right to protest—and to speak sometimes a little loudly and emotionally—and not moving over to the point where people intimidate others and prevent them from feeling that can pursue their educational studies?
Baroness Smith of Malvern (Lab)
The right reverend Prelate exactly outlines the balance that we need to strike. It is wholly reasonable that students engage in protest. In fact, I engaged in a fair amount of protest with my noble friend Lord Mann during my time as a student. However, it is wholly inappropriate, as the right reverend Prelate says, if that then prevents those with whom you disagree from operating. Where serious thought has been given to this, higher education institutions have managed to find that balance between the right to protest and the requirement that views with which you disagree should not, essentially, be cancelled from campuses.
If we can work on that, and if we can also ensure that we develop that culture that we were talking about earlier, and that ability to recognise that disagreement is an important part of the experience of being in higher education, then we will have made important progress.
Lord Verdirame (Non-Afl)
My Lords, I refer to my interests in the register. I very much welcome the Government’s change of direction on this matter. It was reported only a few weeks ago that arms manufacturers were cancelling events at universities because of intimidation and harassment. If arms manufacturers feel compelled to cancel events in universities, one can only imagine what it must be like for a first-year undergraduate who has nonconformist views on questions such as the Middle East conflict or gender. I therefore welcome the Government’s change in direction, but I have concerns about the exclusion of student unions. Do the Government really consider that the objective of the Act can be met if student unions are not fully in scope, given that so much of the intimidation is done through student unions? Related to that, the Statement says:
“Student unions are neither equipped nor funded to navigate such a complex regulatory environment, and they are already regulated by the Charity Commission”.—[Official Report, Commons, 15/1/25; col. 380.]
The Charity Commission and charity law are complex regulatory environments. If they can navigate those, why can they not navigate a piece of legislation on free speech?
Baroness Smith of Malvern (Lab)
I think I have made the position with respect to student unions pretty clear. In my discussions with vice-chancellors, they recognise their responsibility under the legislation to work with student unions to make sure that the type of intimidation that the noble Lord and others have talked about does not happen. Once again, we have found a pragmatic approach to ensuring progress on this issue, and I think the balance is right.
Baroness Falkner of Margravine (CB)
My Lords, first, the Minister indicated to the House that she would be publishing guidance or regulations fairly shortly, so will this be available before the newer deadline for judicial review, which I think is July 2025? Secondly, I think I understood her to say that the reason she did not engage with the Equality and Human Rights Commission was that we were an intervener in the JR. I would like to put on record for the House that the decision to intervene happened only around 10 December. There was a period between July, when the Act was paused, and 10 December or thereabouts, when we would have been delighted to engage with her on the profound points of the public sector equality duty, as well as that of Article 10 on the right to freedom of expression.
Baroness Smith of Malvern (Lab)
What I said was that we would bring forward a policy paper to outline how we were going to put in place the decisions that we have made on this. I am sorry if the noble Baroness thinks that there has not been sufficient engagement with her. All I can say is that there has been very widespread engagement with a whole range of stakeholders —probably a majority of whom supported the Act and quite a few of whom supported the totality of the Act, alongside those who actually would have preferred us to have completely repealed it. I hope and believe that what we have done is to appropriately listen and to find a responsible way through.