House of Lords: Number of Members

Baroness Deech Excerpts

Wednesday 16th September 2020 Lords Chamber

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

I call the noble Lord, Lord Roberts of Llandudno. Lord Roberts? I call the noble Baroness, Lady Deech.

[Baroness Deech (CB) [V]]

It seems to me that legislation to cap our numbers is being blocked in a way that does us no credit. Will the Minister urge the party groupings each to find a consensual way to limit their own numbers? The House of Lords Appointments Commission needs power to vet the suitability of proposed Peers or to cap the numbers. I hope that he agrees. If ever there was a case for getting rid of royal prerogative, this is it. I suspect that the Government think that only by shovelling us into a less comfortable venue during refurbishment, or by going entirely virtual for the duration, will we find a large number of retirements. That is not the way to do it. How does he propose that we do it?

[Lord True (Con)]

My Lords, I cannot follow the noble Baroness on many of the things that she has said, other than I hope that one day we might get back to not being a virtual House—that I do agree with. I repeat that there are difficulties in relation to this House: it is unelected, Members sit for life and the House cannot be dissolved. That raises issues for reflection on a cap, as the previous Prime Minister implied.

Parliamentary Constituencies Bill

Baroness Deech Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 10th September 2020 Grand Committee

[Baroness Deech (CB) [V]]

My Lords, I support everything that the noble Lord, Lord Norton, has said and, therefore, I oppose this amendment, because it is clear to everyone that 800 MPs in this or any other legislature in the world is too great a number for ease of debate, expense, space, collegiality and concentrated expertise. Indeed, 650 Members of Parliament was thought to be too many, and it seems that that number has been chosen over 600 to avoid too many MPs losing their seats. If that is the case, 800 is certainly too large for this House as well, even though a substantial proportion rarely show up or participate. Even when we have been operating virtually and many of the barriers to physical arrival in the House have been removed, only about 550 have participated in votes. One is grateful to those who absent themselves because it relieves the pressure on facilities but, at the same time, one asks what they are doing accepting a peerage if they do not want to join in the work of the House.

In opposing this amendment, I call for a renewed effort to reduce the size of the House to a number comparable with the Commons. The fact that our efforts so far have turned out to be in vain is not our fault. This House, sadly, seems to be as unpopular as it has ever been, partly because of its size and partly because of unexpected appointments. It might have been more explicable if a practice recommended by the Lord Speaker’s committee of appending a notice to the announcement to a new appointment of how that person qualifies and expects to serve had been adopted. It is unpopular, too, because it has vigorously and repeatedly rejected the clear will of the electorate, expressed first in a referendum and then confirmed by two subsequent general elections, that they do not want to stay in the European Union. But I wish there was more understanding of our role as scrutineers of legislation and, on occasion, as the moral conscience of the nation—an issue that is likely to come up shortly.

On the issue of size, your Lordships know very well the sensible measures for reduction put forward by the Lord Speaker’s committee. We were progressing quite nicely with reduction until the addition of the new appointments made by this and previous Prime Ministers in the last few years. Despite the pledges made, it seems that Prime Ministers cannot resist the temptation of handing peerages to supporters and donors. There is no way that the House can defy the Writ of Summons calling them to Westminster. The size and composition of this House are also hemmed in by the presence of 26 Bishops and the hereditaries—elements that work to block a better gender balance. Therefore, we have to take matters into our own hands and ask the party groupings again to consider how each may reduce its share of membership. Some will have to be thrown off the life raft in order that more may survive. Rejection of this amendment is a spur to action, and I call on it to serve as such.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, the points made by the noble Baroness, Lady Deech, on the size of the House of Lords are not quite relevant, with respect. When we discussed this before, I said—I was a lonely voice—that our efforts to reduce the size of the House of Lords were bound to fail because of the grim truth that no one could restrain future Prime Ministers. It is the like the puzzle you had as a schoolboy doing your 11 plus or the equivalent—filling the bath at one side and emptying it on the other; there is no means of controlling the end product. That is what I would say on the relevance.

The noble Lord, Lord Norton, whom we all respect for his contributions in this field, has put his case very strongly. There is no magic number of 650. Nobody has explained to me why it should be 650 and not 651 or 649, or whatever number is justified. There is no case in my view for reducing the present membership of the House of Commons. That is why I support the principle, whatever the details of the amendment proposed by the noble Lord, Lord Norton.

Being an MP is now much more demanding. In 41 years of representing my own constituency, things were fairly level. There were other problems, mainly industrial problems, but now the task of the MP has become much more difficult. There is an expectation, with the development of email, of instant action on behalf of a demanding constituent. I tried to pursue two professions—of being a Member in the House of Commons and practising at the criminal Bar—and I hope that I succeeded. I doubt that in the present circumstances, such are the demands on a modern Member of Parliament, one could have done the same thing for 41 years.

This is an important amendment. I support it on the principle that the greater the number of MPs, the lesser the chance of wrecking the physical make-up of the membership in Wales. Under the present proposals, the county that I represented in part would again be subject to a huge wrecking operation to justify an equality of numbers for each of the new constituencies. Therefore, the principle of the greater number helps me in my argument of trying to preserve representation that offers some degree of continuity. I used to speak for constituents; those were the people I represented. They value continuity, value the membership of the House of Commons and value the fact that they know who their Member of Parliament is. In my part of the world that may be more important than in a major industrial area, where perhaps there is more anonymity. In our area, it is important that constituents know who to go to when there is trouble.

I support this amendment very much, because it tries to meet present needs, and a reduction in the House of Commons to 650 is no more justified than the original proposal to reduce it 600.

House of Lords: Relocation

Baroness Deech Excerpts

Tuesday 14th July 2020 Lords Chamber

[Lord True]

My Lords, I have put on record what my right honourable friend Michael Gove said. The noble Lord speaks from outside this Chamber, which is perfectly reasonable. In this current emergency, your Lordships have been scattered to the four corners of the kingdom. There has been no parallel since 1665 when the House took itself to Oxford to avoid the plague. Speaking as a Minister, I do not feel either today or on other occasions that the intense and proper scrutiny from your Lordships has been weakened. I reject any contention that this Government want at any time to weaken parliamentary scrutiny.

[Baroness Deech (CB) [V]]

Does the Minister agree that the proposed move would be a constitutional emasculation and a gesture of disrespect, and would work only if the Commons moved as well? In terms of spreading governance to the north, this is not likely to work any better than the BBC’s partial move to Salford. If it happened, the move would result only in far more virtual working. Moreover, since the Writ of Summons from the Queen commands noble Lords to meet in Westminster, does the Minister realise that any move will involve the royal prerogative and legislation, drawing the Crown into this? I hope the Minister agrees that the response of the House should be to press on with reform. Does he agree that this House, given the virtues of virtual working, could contribute to a quicker and cheaper refurbishment not by moving anywhere but by offering to work virtually during the refurbishment period?

[Lord True]

My Lords, I and the Government welcome any constructive suggestions from Members of your Lordships’ House on how to achieve these objectives. The experience of virtual working will have been read and noted by all of us in different ways and with different implications. I return to the fact that this is a House of Parliament—it needs to be treated with respect and to have the last say.

EU: Trade and Security Partnership

Baroness Deech Excerpts

Tuesday 9th June 2020 Lords Chamber

[Lord True [V]]

My Lords, the noble Lord is right: there is an international dimension to these questions. We expect foreign policy co-operation broadly to be substantial with the EU, as it is with many of our international partners, but we do not think that an institutional framework is necessary to deliver it.

[Baroness Deech (CB) [V]]

Will the Minister join me in encouraging Mr Frost to stand firm and make it clear that we are willing to walk away if necessary? Can he also emphasise that after Brexit we must retain sovereignty over our defence and foreign policy? Given the EU’s ineffectiveness in relation to hostility from China and its overdependence on Russian gas regarding Nord Stream 2, can he ensure that we depart from EU defence structures and defence funds and reinforce our partnership with NATO and the Five Eyes intelligence group?

[Lord True [V]]

My Lords, the noble Baroness refers to some very important factors in our international relationships. Mr Frost is doing an excellent job for his country, in line with the decisions of Parliament and the people. As for wider foreign policy, I alluded to that in the previous answer.

EU: Plans for No Deal

Baroness Deech Excerpts

Tuesday 2nd June 2020 Lords Chamber

[The Lord Speaker (Lord Fowler)]

Lord Howarth of Newport. No? Baroness Deech.

[Baroness Deech (CB)]

Does the Minister agree that the only contingency worth considering at this moment is that if we stay tied to the European Union beyond 31 December, we face paying into a dramatically increased EU budget next year, with new taxes? It has been estimated that staying in might cost us £380 billion over the next two years. Is it not time to make sure that we get out by 31 December?

[Lord True]

My Lords, I am not going with any particular prediction on this question, as I did not on an earlier one—there will be a range of opinions—but I fully agree with the noble Baroness that, were we to stay attached to the EU beyond December, we would face uncertain, unknown but substantial costs in terms of our duties to make payments to the European Union.

EU: Future Relationship

Baroness Deech Excerpts

Wednesday 20th May 2020 Lords Chamber

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

Lord Morris of Aberavon? He does not seem to be there so I will move on.

[Baroness Deech (CB)]

My Lords, I congratulate David Frost on reaching out to member states and remind him of the wise words of his late namesake, Sir David Frost, who said:

“Diplomacy is the art of letting someone else have your way.”


Will the Government encourage Mr Frost to stand up for British values for the benefit of this country, and not just to think about the economy?

I must raise the arbitrary dismissal of Eleanor Sharpston, the British advocate-general at the European Court of Justice. She was sent packing before her term ended, even though her post is not attached to UK membership. If you sack a member of the court, judicial independence is meaningless. This is not a court that we can remain subject to. I hope the Government will make representations on behalf of Eleanor Sharpston.

[Lord True]

I thank the noble Baroness for her comments. I cannot comment on individual cases but I note what she says. I reiterate that it is the intention of this Government that the ECJ will not have jurisdiction in the United Kingdom after the end of transition.

Budget: Economic and Fiscal Outlook

Baroness Deech Excerpts

Tuesday 5th May 2020 Lords Chamber

[Baroness Deech (CB)]

Reading the March OBR report on the economic and fiscal outlook put me in mind of the saying of my noble friend Lord King that:

“The lesson is that no amount of sophisticated statistical analysis is a match for the historical experience that ‘stuff happens’.”


Now we know that there was never a better time to leave the EU and to leave it wholly and quickly. Given the economic storm we are facing, extending the transition period will only extend uncertainty for the deals we hope to reach with the US, Australia and others. It will increase the chances that we get involved with the eurozone crisis and, if we extend the transition, we will not be able to take advantage of the legislative flexibility that we so desperately need in order to repair the economy.

During the virus crisis, we have seen member states of the EU adopt various forms of trade protectionism. There has been no EU common policy against the virus. We have seen not sharing or helping, but export restrictions being put on medical equipment. Turkey and China had to help out the worst-hit countries. Debt has not been shared between the wealthier northern countries and the poorer southern ones. We have seen procuring but not obtaining, and cherry-picking on one side of the tree only—dropping state aid rules for oneself but not others. We have seen countries closing borders when it suits, as a protection for their own nationals. In effect, the single market has not been working. China has been able to exploit the EU’s economic dependence on it to further assert political dominance and stop criticism of its record.

We have seen from the negotiations so far that Brussels wants to keep the UK in a captive position dressed up as a level playing field, for example, in relation to fishing. Right now, we have a negotiating advantage. If the EU wants a trade deal, it should agree one. We have seen it on the brink of falling apart. We need to take care of our own economy and put an end to the uncertainty that the remainers so favour. It is time to stop fighting that old battle. The country has spoken three times. We are better prepared for no deal than we were, in part because of the Covid-19 situation, and the economic hit we might take fades into insignificance compared with what we are suffering right now. I hope the Minister will reassure us that we will not be blown off course.

[The Deputy Speaker (Viscount Ullswater) (Con)]

My Lords, I have taken over as Deputy Speaker.

House of Lords: Gender Equality

Baroness Deech Excerpts

Thursday 6th June 2019 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government what steps they are taking to promote gender equality in the composition of the House of Lords.

[Lord Young of Cookham (Con)]

My Lords, in the past 20 years the percentage of women in your Lordships’ House has increased from 17% to 26.5%. In this Parliament, seven of the 17 party political appointees were women. The Prime Minister considers factors including skills, expertise, party political balance and diversity. Progress has been made, but there is still more to be done.

[Baroness Deech (CB)]

There is much to be said on this question, as the Minister has said, but I want to focus on just one issue. As long as we have seats for hereditary Peers, women continue to be ineligible for almost all of them. Succession to the Crown has been changed to allow women to succeed equally, and we even have women bishops. To add to the unfairness, eldest daughters are specifically forbidden under the Gender Recognition Act 2004 to change sex for the purpose of succession. Will the Government back the simple Bill put forward by Philip Davies MP to remove all remaining obstacles to equality and allow daughters to seek seats here? Our composition should be based on equality and fairness. We have to set an example. Saying it is complicated is no answer to such a question. We must end the inherent androcentric nature of this House.

[Lord Young of Cookham]

My Lords, I understand the noble Baroness’s wish to remove the barrier to women entering your Lordships’ House via the hereditary by-election principle by allowing the title to pass to the eldest child. I believe there are better ways to reduce the current imbalance. The noble Baroness’s solution involves, first, getting primary legislation through this House on the right of succession. The noble Lord, Lord Grocott, will tell the noble Baroness just how difficult it is to get legislation through this House that tampers with the hereditary principle. Secondly, it would then depend on a marked increase in the mortality of hereditary Peers, something which I know the noble Baroness does not want. Thirdly, it would depend on women winning the by-elections. I honestly think it is better to make progress and get more women in your Lordships’ House by continuing to drive up the percentage of life peerages, rather than by going around the course I have just enunciated.

Higher Education and Research Bill

Baroness Deech Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

Moved by

[Baroness Deech]

152: After Clause 86, insert the following new Clause—
“Higher education providers: freedom of speech and preventing unlawful speech
(1) All English higher education providers must ensure that their students, staff and invited speakers are able to practise freedom of speech within the law in the provider’s premises, forums and events and must put in place measures to prevent unlawful speech.(2) Subsection (1) extends to the premises, forums and events of the provider's student unions.”

[Baroness Deech (CB)]

My Lords, this amendment goes to the heart of what the Bill is all about. Let us set aside for a moment the questions of fees, numbers, quangos and validations. The Bill is ostensibly about teaching excellence and academic freedom. We take it as implicit—the league tables confirm it—that our universities are among the very best in the world. Some of them are consistently found in the top 10, alongside American universities. We are united in wanting to preserve our excellence, as the vote of a few moments ago showed. We want to preserve it for its own sake and because it is a valuable, international attraction, embedding our intellectual values in cohort after cohort of future world leaders who come here to study. But you cannot have academic freedom, as now included in the Bill, or teaching excellence without freedom of speech. That, as I have repeatedly warned in this Chamber over the last couple of years, is in danger. Sometimes it is farcical gagging of speech and other times it is very dangerous.

The Bill will rank universities’ teaching skills as gold, silver, bronze and ineligible. There exists another ranking—that of freedom of speech—in our universities, which is, in my opinion, to be taken even more seriously as an indicator of excellence. The free speech university rankings 2017 examine all our universities according to the following criteria: bullying and harassment policies; equal opportunities policies; students unions’ attitude to no-platform policies; safe space; student codes of conduct; bans on controversial speakers and newspapers; and even expulsion of students on the grounds of their controversial views or statements. The sampled universities are then ranked: “red” means a university that is hostile to free speech and free expression; “amber” means a university that chills free speech and free expression by issuing guidance with regards to appropriate speech; and “green” is for the other universities which place no restrictions on free speech and expression, other than where it is unlawful.

Sixty-one universities, or 63%, actively censor speech. The censoring is either by the university administrations or by the students themselves. The examples of censoriousness are well known, whether it is the silencing of a Muslim woman calling for reform of religious attitudes towards women, the playful adoption of foreign dress or cuisine, mentions of transgender, the likelihood of blasphemy, or even complaints about censorship itself. We all remember the suspension of Sir Tim Hunt and the LSE lecturer who was silenced when his views about welfare were found to be likely to be unacceptable. Violence met Israeli peace activists speaking at UCL and KCL.

At the other end of the scale, hate speech is being heard unchallenged. A recent review of people convicted of terrorism found that a significant number were in education at the time of the offence. Student Rights logged 27 speaker events in London in four recent months where speakers referred to homosexuality in the most derogatory and punitive terms, and defended convicted terrorists. That is unlawful speech and universities are not always stopping it. My amendment, if accepted, would incidentally clarify, limit and strengthen the Prevent policy, which is likely to be reviewed because it would single out unlawful speech as a target of prohibition rather than the more woolly “extremism”. In sum, there is no point pursuing teaching excellence and academic freedom, in ranking universities gold, silver and bronze, if at the same time their real freedom and intellectual excellence comes out red or amber. These rankings are known internationally.

The Government maintain that my amendment is unnecessary because the required laws are already in place. I submit that not only are they ineffectual but there is a gap in the Minister’s summing-up letter which relates to enforcement. Students union premises are included in the premises on which a university must afford freedom of speech, but in practice some university authorities claim that union-organised activities taking place on university premises are not covered and the authorities back off, claiming the union is autonomous. Nor do they put a stop to safe-space controls. Or the universities tell students who have been discriminated against by their union that complaints are handled exclusively by the students union, which is wrong in law.

The Universities UK 2016 task force on violence against women, harassment and hate crime set out guidance for a disciplinary code for universities to adopt. The task force found that the evidence also suggested,

“that despite some positive activity, university responses are not as comprehensive, systematic and joined up as they could be. A commitment to addressing these issues is required within every university, from senior leadership down”.

Yet the report’s guidance does not seem to have been widely accepted. Some colleges—for example, SOAS—reject the new definition of anti-Semitism helpfully disseminated by the Government. I say “helpfully” because it distinguishes between lawful, political criticism of a state, which is fine, and race hatred which is not.

I turn now to the other points made in the letter sent to all Peers by the Government. It is stated in that letter that legal proceedings should be brought against universities if the freedom of speech duty is not complied with. That is too slow and the action needs to be against the disruptors in the first place rather than the university. There have been complaints to the Charity Commission about some unions but that, too, is slow and difficult. I respectfully suggest that the basis on which the Government now state that they are confident that students unions are sufficiently controlled by existing law is because I provided them with advice from a QC. Most universities do not know the law and dispute the conclusions. The Office for Students could require freedom-of-speech principles to be included in the public interest governance conditions but there is no requirement at the moment. It ought to be included in the Bill.

As we heard a few moments ago, many of our future leaders, both British and international, are being educated here in our university system. Since the referendum last year, there has been a spotlight on hate incidents, a rising number of unacceptable actions and speech. We are all disgusted by it. Some of us know that this has gone on for years and we are relieved that, finally, the occurrence of hate and intolerance in higher education, the media and society generally is getting the attention and disapprobation necessary. We will be letting down our future leaders if we allow them to receive their education on campuses where censorship is accepted and where hate speech and actions are overlooked. We will be storing up even more trouble for the future.

Accepting my amendment would not only show genuine commitment to excellence and academic freedom but clarify and control the Prevent guidance. It would provide for enforcement and support the UUK task force on hate and harassment. It would help students who have suffered from silencing and worse. To reject the amendment will send yet another message round the world—I am not exaggerating—that the Government and the university system remain passive in the face of a great threat to the future of our young. Our students must not graduate in the belief that there is no real freedom of speech, or that hate is mainstreamed. They must not leave university believing that it is routine to settle debates by silence or violence. For their good, I seek to have this amendment accepted. I beg to move.

[Baroness Garden of Frognal]

My Lords, I added my name to this amendment and spoke to it in previous stages of the Bill. I will be brief; in any event, the noble Baroness, Lady Deech, set out a comprehensive argument as to why this is so important. Who would have thought that it was important in this country to champion freedom of speech? Sadly, obviously that has become necessary. We are living in strange times. We have heard tales of students closing down free speech, and universities have taken remarkably little action over some issues when freedom of speech should have been protected.

It is difficult. There are obviously grey areas between what is lawful and what is not. As the noble Baroness said, we must not in any way encourage hate speech or incitement to violence but university students should be subject to ideas they find uncomfortable and be in a safe place where they can address them without those ideas immediately being shut down. This amendment also includes students unions, so it should help activities and events organised by students to make quite sure that they too encourage freedom of speech. It is a precious and valued part of our national life, and it is currently under threat. This amendment would add powers to ensure that we preserve it.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, I thank the noble Baroness, Lady Deech, and noble Lords for this valuable opportunity to discuss freedom of speech further. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Garden, said, we all recognise that it is a crucial principle at the heart of higher education. I am particularly grateful for the meetings and discussions I have had with the noble Baroness, Lady Deech, my noble friend Lord Polak and Sir Eric Pickles, who have encouraged us to consider even more closely the responsibilities that universities must have, including in relation to their students’ unions.

In response, the Minister for Universities and Science will be writing to the higher education sector shortly, highlighting the importance of the freedom of speech duty and reminding universities of their responsibilities in this respect. The letter will focus particularly on students’ unions—and all students—and will reiterate how freedom of speech codes of practice should be enforced. It will also emphasise the importance and expectation of rapid resolution of any freedom of speech issues. I hope that that reassures the noble Baroness, Lady Deech, that speed is of the essence, as she made clear in the meetings we had.

The existing freedom of speech duty requires all those concerned in the government of certain higher education establishments to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. This includes an express duty to ensure, so far as reasonably practicable, that the use of any of the provider’s premises are not denied to anyone on the grounds of their beliefs, views, policy or objectives. In order to help staff, students and visitors understand their obligations, providers within scope must also have in place an active code of practice. This must explain how they should approach events on any of their premises, and the conduct expected of them.

I stress that students’ unions also have a role to play in this. The same duty requires that student members of a students’ union be subject to the code of practice issued by their higher education establishment. Students’ unions established at higher education institutions are typically charities, and the Charity Commission has a statutory function to identify and investigate mismanagement and misconduct in the management and administration of charities. In addition, the freedom of speech duty clearly applies to premises that are occupied by students’ unions, whether or not they are premises of the higher education establishment. I hope that provides clarity on another point the noble Baroness raised.

I completely agree with noble Lords that legal duties and codes of practice take us only so far. We fully expect providers not only to have robust codes of practice in place but to take reasonably practicable steps to ensure that they are adhered to. This includes taking disciplinary action where appropriate. In the occasional case where the duty is not complied with, legal proceedings have been brought against providers. In a recent case, the judge found that freedom of expression was alive and well in the university involved.

As part of its monitoring of the Prevent duty, HEFCE found that higher education providers showed a strong understanding of their responsibilities concerning freedom of speech and 93% had already put in place strong policies for assessing and managing the risks associated with any speaker event. We want to ensure that all relevant providers now do this. Therefore, for those that have not yet met this standard, action plans are in place for outstanding issues to be resolved by spring of this year. More generally, HEFCE regularly engages with higher education institutions, both informally and formally, in relation to balancing free speech with Prevent. While I understand the reasons for the noble Baroness’s amendment, unfortunately it is not clear how this additional duty would interact with the existing duty. We believe there is a genuine danger that in practice it would introduce ambiguity in relation to both duties.

However, I fear that to ensure that something happens without reasonable caveats unreasonably and unnecessarily imposes a burden on providers. It may well require them to address matters that are realistically out of their control. For example, it could result in an institution that faced concerns about violence at an event therefore being mandated to spend unreasonably large amounts of money on a significant security presence. Forcing such an event to unreasonably go ahead, or creating a situation where the duty to ensure freedom of speech may override concerns about the security of attendees, cannot be the desired effect. We need to allow institutions to make their own decisions, balancing the requirements of the duty against other responsibilities and enabling them to assess each individual case according to the situation.

We must also not overlook the fact that students, on the whole, do not think there is a problem with free speech. A 2016 survey by the Higher Education Policy Institute of over 1,000 full-time undergraduates at UK higher education institutions found that 83% of students felt free to express their opinions and political views openly at university. Noble Lords will also be reassured that Clause 15 enables the OfS to impose a public interest governance condition on registered providers. Such a condition would require applicable providers to ensure that their governing documents are consistent with a set of public interest principles relating to governance. The OfS will determine the list of principles following consultation. While we cannot prejudge that consultation, a principle underscoring the importance of free speech could be included in the list if the OfS considered it appropriate in light of the consultation.

In Committee I assured noble Lords that we would consider how to make sure that higher education providers continue to be subject to the existing freedom of speech duty under the new definitions created by the Bill. We have now considered this and we propose to extend the vital freedom of speech duty to all registered higher education providers under the Bill. This extends the duty beyond its current application of providers that broadly are eligible to receive HEFCE funding. It means that all providers on the OfS register will need to take reasonably practicable steps to ensure that freedom of speech is secured, to issue a freedom of speech code of conduct, and to ensure that it is complied with. We consider that this duty is comprehensive and strikes the right balance between ensuring that the higher education sector remains a vital place for debate and discussion and ensuring that providers are not burdened by a disproportionate and ambiguous requirement. The duty is just as relevant today as it was at its inception more than 30 years ago.

Freedom of speech is vital but must always be within the law. We all stand against illegal hate speech, discrimination, intimidation or harassment against anyone, including on the basis of their race, religion, gender, sexuality or disability. I am sure we all agree that there is no place for anyone who is trying to incite violence or support terrorism. In addition to legislation, there are effective mechanisms for reporting hate speech and other incidents; for example, through university internal complaints procedures, to the Office of the Independent Adjudicator, directly to the police, or to organisations including the Community Security Trust, Tell MAMA and the Equality and Human Rights Commission. Most providers already have clear policies on discrimination, harassment and hate incidents. Providers subject to the Prevent duty are also required to have due regard to the need to prevent people being drawn into terrorism, and as part of this to consider the impact of extremist speakers on campus.

Despite the good intentions of this amendment, its introduction adds little to existing legislation and risks confusion in relation to freedom of speech. It is not clear what measures would be required to prevent speech in advance of it happening. Unfortunately, this could lead to providers being too risk averse, with the unacceptable consequence that lawful free speech could be stifled. We believe that government Amendment 204, extending the existing freedom of speech duty to all registered higher education providers, strikes the right balance by requiring providers to do all they can to protect free speech. For unlawful speech, the answer is to continue to work with the sector to implement existing laws instead of creating new legislation. I hope that, with that explanation, the noble Baroness will see fit to withdraw her amendment.

[Baroness Deech]

My Lords, I greatly appreciate the Government’s involvement in this topic. I support Amendment 204 and am very pleased to see that the Government wish to extend the width of the freedom of speech duty. I appreciate the fact that the Minister has listened, as has his counterpart in the other place. They have taken this topic seriously—indeed, no Government could possibly reject the notion of freedom of speech while passing a higher education Bill.

What I would hope to see in correspondence between the Government and the universities in the next few days or weeks before we come to Third Reading is a clear explanation that students, individually and in their unions, are covered wherever they may speak or block speech, both on university premises and off them. I would hope to see provisions for prompt enforcement. We are all well aware of how brief the university year is: if you are a student, you can commit an offence in April and by June you are history and the university no longer has any control over you and you may well get away with it. I also hope that the letter would support the matter that the Minister mentioned: what could be more simple than to include a freedom of speech condition in the governance conditions to be set down by the OfS? It would be excellent if those conditions were set out and sent to universities.

I have some slight caveats. First, a recent letter from the Minister in the other place disseminating the definition of antisemitism, which I believe was also signed by the noble Viscount, Lord Younger, has been ignored and rejected by one of the places that most needed to hear it—namely, the School of Oriental and African Studies. Secondly, we have had provisions about freedom of speech on our statute book for 30 years, yet some universities have still not implemented them or do not know how to. I know for sure that one of them had never heard of them until 2011. Thirdly, it would be a pity if violence is still allowed to close down free speech. I would not wish to see, as I am sure noble Lords would not wish to see, a situation whereby the threat of violence prevents lawful speech and the university says that it simply cannot afford to police it. An atmosphere has to be created in universities and, I am afraid, security put in place so that violence does not close down free speech—whether that is in the university or anywhere else in society. If those conditions are met, as I hope they will be before Third Reading, then I will be content to withdraw the amendment now while reserving my right to revert to this topic.

Amendment 152 withdrawn.

Higher Education and Research Bill

Baroness Deech Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, with the agreement of the noble Baroness, Lady Wolf, and in the absence of the noble Baroness, Lady Brown, I will speak to this group. We understand that their Amendment 135, which we support, has been overtaken by events. It may be subject to an announcement that would remove the requirement for it, which I am sure we would all be grateful for. I have read through the Regulators’ Code and looked in detail at what it does. It can do nothing but good for the sector. It is an effective and useful guide. It will be extremely helpful to all those who will have to deal with the OfS as it moves into its new role. It is to be welcomed that the Government have seen the sense of the amendment we tabled in Committee and have decided to move forward in this way.

Amendment 136 is a slightly different beast. I am grateful to the noble Baroness, Lady Deech, who always seems to get stuck at the end of debates and has to hang here to make her very valuable contribution. That situation will change when we next discuss amendments that have her name to them. This one concerns an issue that has been growing in impact as we have been discussing and thinking about the issues raised in the Bill.

There is not, as might be implied by the drafting of Amendment 136, any sense in which we would resile the authority of the CMA regarding the work that will be done by the OfS and its associated committees and structures. The CMA has statutory rights to engage with anything consumers do in the public and private realms. Therefore, it will from time to time no doubt take an issue and respond to complaints. All these things are set out in statute in the ERR Act and the Consumer Rights Act 2015. However, there clearly are operations under the whole umbrella of the CMA that will have a resonance and possibly an ability to be dealt with by the Office for Students. It would be more appropriate for it to do these as part of its regulatory functions.

This is a question we have asked before and have not had a satisfactory answer to, which is why we are bringing it back tonight: what exactly is the boundary between the Office for Students in its regulatory mode and the CMA? At the moment the CMA has taken quite a serious first step into discussions with higher education providers. It has carried out a survey of the way they treat their consumers: students. It has drawn certain conclusions from that and is currently obtaining undertakings from a range of providers, many of which are well-known household names. This is a dog that barks and bites. We have to be very careful where it might go. We would not in any sense wish to constrain it, but it will introduce a completely new sense of engagement between those who respond to offers from higher education institutions to go to them and study, the results they obtain, and their attitudes to and relationships with such institutions.

However, the detailed work of that will necessarily fall to the Office for Students, so there really are questions. Where does the boundary lie? What are the parallel powers that the Government are setting up in this area? Will the OfS have the same powers that the CMA has, as defined in the two Acts that I have already mentioned? Are there new and additional powers that are not being mentioned? If so, could we have a note about these? Where exactly are we on this? I think there is a danger that this ground will be rather trampled over. I have said this was a dog that not only barked but bit, but I think there are other worries that there may be some sort of competitive urge between the two bodies to be more regulatory than the other, and I hope there will be powers available to make sure that that does not happen. We do not want too many dogs, and we certainly do not want them biting. We want to make sure at the end of the day that the true interests here, which are the interests of the students, are not curtailed or in any sense hampered by the fact that regulators are exercising functions in a lot of different ways. I am speaking to this amendment but there is a previous one in the group, and I will respond to mine once the noble Baroness has responded. I beg to move.

[Baroness Deech (CB)]

My Lords, I will speak about Amendments 135 and 136. It was a bit of a shock to many people to find that the Competition and Markets Authority had entered this rather competitive field of regulation. The CMA’s job is to promote competition and make markets work. I think much of the debate we have had over the past few weeks is precisely about how universities are not really about competition and markets; they are about collaboration, scholarship and research.

The OfS is replacing HEFCE, which was the lead regulator, but the OfS is not taking over the Office of the Independent Adjudicator. I declare my interest as the first holder of that office, a few years ago. The OfS is intended to be a single, student-focused regulator. I think the Government might be seen to be undermining their own scheme if they allow the CMA to meddle in affairs which really are not suitable for it. There is already far too much compliance and legalism for universities to deal with—human rights, health and safety, data protection, freedom of information, judicial review, Prevent guidance and much more, including the common law. There is a crowded enforcement field as well—the CMA, other higher education bodies, consumer protection legislation, the Office of the Independent Adjudicator, Scottish and Northern Irish ombudsmen, government departments, the Advertising Standards Authority and the Quality Assurance Agency. The CMA admits how fragile its own guidance is because everything depends on how the courts would interpret consumer law applied to universities’ functions.

I would argue that the CMA is also an inappropriate regulator because it shows little experience of how universities work. It is insistent on clear information being given about course variation before a student signs up. This is an example of how it is inappropriate. The prospectus for a student goes to print four or five years before the potential student who has read it graduates some years further on. It is impossible, therefore, in a prospectus to lock in lecturers for five years because of sabbaticals, fluctuating demand and finances, and even building works. How can a university predict what its fees will be five years from now, especially with new mechanisms being introduced right now? The CMA has recently opined that it thinks that it is unfair for universities to withhold formal qualifications from a student who is in debt. Does it have any idea how difficult it is to chase a student through debt collection procedures or failure to provide campus accommodation the following year—which it suggests as a sanction—when a student has left with no forwarding address or gone abroad, as frequently happens?

The CMA will also come into conflict and overlap with the Office of the Independent Adjudicator. The latter has been in existence for about 13 years and has decided thousands of cases, many of which have a consumer flavour. It has given a wide range of advice to universities about the same issues that the CMA has involved itself in. The OIA’s task, however, is to decide what is fair and reasonable. This is not the same as the CMA’s perspective, which is about deciding a dispute on the precise terms of the contract.

The Office of the Independent Adjudicator offers alternative dispute resolution, which is far better than resort to litigation. Unlike the CMA, the OIA can be flexible and offer resolution tailored to the needs of the wronged student—not money but a chance, for example, to retake a year or have extra tuition. The OIA should prevail over the CMA because it was based on a statute designed to provide that one specialised service for students; namely, the settlement of complaints according to what is fair.

There is something wrong in theory about letting the CMA drive issues of university information and practices. Its perspective would cement the student as a paying customer expecting to reach an acceptable outcome. But we are dealing in this Bill with a participatory process—education, not training; knowledge, not skills; and teaching, not rote learning—in a situation that involves a relationship of give and take between students and lecturers, parents and universities, and employers and government. We do not want the commercialisation of this relationship, as if it were the purchase of a car. We want value placed on stimulation, career guidance and intellectual growth, not just the path to a paper qualification.

The consumer model that the CMA applies results in a totally one-sided set of contractual details. It seems to think that there are no obligations on students to pull their weight and no enforcement mechanisms against students’ own shortcomings. There is no mention by it, or in the TEF, of students’ efforts and their responsibility to learn. This one-sided market approach is more likely to lead to complaints about poor teaching after an unacceptable result has been handed down. We expect collaboration and not competition.

Higher education is not like a consumer transaction. The education relationship is unique. There is no fixed outcome which can be measured by organisations such as the CMA because the quality of the experience is determined by the aptitude and hard work of the student, as well as the facilities and teaching offered by the university.

Higher education is one of a class of major events in life which do not readily lend themselves to government by contract. Such situations are too emotional and personal, with no clear goal and perhaps an imbalance of power. The issue may be too important for the rest of society to be left to the narrow issue of a contract between the individual parties. Only overall regulation focused on the goals of higher education and the student will do, not intervention from an unrelated and unrepresentative body such as the CMA.

The CMA focuses on choice, price and competition. It assumes that satisfying the consumer-student is all that matters. Its view of contracts is about the provision of education, but it is no help when it comes to what education should achieve. Its interventions will not only overlap and conflict with the Office of the Independent Adjudicator but will lead to more micromanagement, box-ticking, checking and inspection, and not to greater quality or public benefit. It has no place in this new system.

[Lord Lucas]

My Lords, I have a lot sympathy with what the noble Baroness, Lady Deech, said. Where I disagree with her is on university admissions. That seems to me to be a pure consumer transaction. The consumers are provided with information on which they are asked to make a decision. This is an area where I like the idea of there being common standards across the consumer realm rather than some cosy deal that, in the case of higher education, makes it unnecessary to provide the consumers with the level of information and reassurance that they have elsewhere. I think that it is even more necessary. It is probably the second or third biggest single transaction that most people will make in the course of their lives: their commitment to the amount of student loan they will end up with at the end of three years and their commitment to a direction in life which may require a lot of effort and sacrifice to change if they have taken one particular way down.

At the moment I think that it should be very much open to question by the CMA whether what is being provided to students is true, accurate and as much as they should have. Yes, I agree that the Office for Students should have a role in this, but the standards, the bar which we are aiming at, should be set in accordance with our national standards—and at the top of the range of national standards. I think that the CMA has a role in that. So I agree with the noble Baroness, Lady Deech, about what happens when you are in a university: all those sorts of relationships, the outcomes and the need for students to contribute, it being a partnership and so forth. It is very hard to read that as a consumer contract. But that first moment of decision—or that rather strung-out moment of decision—seems to me to be very much CMA territory.

--- Later in debate ---

Tabled by

[Baroness Deech]

136: After Clause 71, insert the following new Clause—
“Transfer of regulatory functions relating to higher education providers and students from Competition and Markets Authority to Office for Students
On the establishment of the OfS—(a) the OfS assumes responsibility for the regulatory functions in respect of higher education providers and students enrolled on higher education courses hitherto performed by the Competition and Markets Authority; and(b) the Competition and Markets Authority ceases to have responsibility for those regulatory functions.”

[Baroness Deech]

I may not have made myself clear enough. I thoroughly agree with the noble Lord, Lord Stevenson, that the solution is probably a memorandum of understanding. I was trying not to talk about the clash between the CMA and the OfS, if there is one, but there is definitely a clash because two bodies, the CMA and the Office of the Independent Adjudicator, are right on the same field. The Office of the Independent Adjudicator has been handing out hundreds of decisions every year about prospectuses, facilities and the consumer rights of students. I have already come across one case where it seems that the CMA has been contradicting the OIA. There is definitely confusion and a clash there, albeit a well-meaning one. They are coming at it from different perspectives and it seems quite unnecessary to have the CMA going in over the same territory. There has to be a solution. The OIA is not a regulator but a complaints handler and it is deeply involved in what one would call consumer transactions. But if the Minister will be happy to consider an MoU in some solution, then I am content not to move the amendment.

Amendment 136 not moved.