Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, 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. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights 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, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

[Baroness Fox of Buckley (Non-Afl)]

I really appreciated the comments of noble Lords in this short debate. I want to stress a couple of things. This is not about the rights and wrongs of any particular examples I gave; it is perfectly legitimate if people want to support decolonisation or critical race theory, for example, but the point is that it is not imposed. I am also concerned about an ideological conformity that stifles the sort of professional exchanges that the noble Lord, Lord Wallace of Saltaire, was advocating.

I was bemused when the noble Lord suggested that I was almost stuck in some social science nightmare. As the noble Lord, Lord Patten, pointed out, it is precisely the fact that this has now been extended into the hard sciences that may wake up even the noble Lord, Lord Saltaire, to the problems, as perhaps he should look quite closely at the decolonisation of physics, computing or mathematics. The noble Lord, Lord Patten, was right when he said, “Why does everybody not just leave the QAA?” In many instances during the discussions in this House, people talk as though we all run colleges. The problem is, if you are an academic in a college where the college vice-chancellor or principal does not resign from the QAA but rather likes it or cites it, what do they do? I hope everybody tears up their QAA membership because of this, but what if they do not?

The noble Lord, Lord Hunt of Kings Heath, really explained what is at stake here. I was avoiding mentioning Stonewall but, in a way, that is what got me interested in this very thing. It has become compelled speech for individual academics who are told that because of the institutional values that the university has signed up to—for example, around the compulsory use of pronouns and/or a particular attitude to biological sex versus trans identity rights, and so on—if you do not agree, you are open to being accused of bigotry and sent on mandated courses. I was not joking; individual members who criticised the music decolonisation were indeed put under huge pressure by people at the university to go along with this. I said “the university” but I do not always understand the institutions and it is fair enough if the noble Baroness, Lady Royall, wants to correct me.

I will finish with this point. I mentioned the Architects Registration Board. We are in a situation whereby a statutory body that the Government are involved in says that all architecture academics must teach all levels of architecture the realities of the ecological crisis. That is a national curriculum by the back door. It is a difficulty that has to be recognised. I want to take the reassurance of the Minister, who said, “Don’t worry, it’s all taken care of”, but, as the noble Lord, Lord Moylan, explained, references to and uses of these international examples can only strengthen the message, with which the Minister seems to agree, about the legal obligations on university management not to allow these kinds of things to get in the way of academic freedoms. It would be a great reassurance to individual academics to know that this is what the Bill wants to do and to see it spell it out. What harm could it do?

Although I will withdraw my amendment at this point, I do not want the Minister to become complacent. This is a really big, serious contemporary issue that must be taken on board by the Government—indeed, whoever is in government.

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Moved by

[Earl Howe]

7: Clause 1, page 2, line 36, leave out from “speech” to end of line 38 and insert “are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form);”
Member’s explanatory statement
This amendment proposes a new definition of “freedom of speech” referring to the European Convention on Human Rights, as it has effect for the purposes of the Human Rights Act 1998.

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Moved by

[Earl Howe]

9: Clause 1, page 2, line 38, at end insert—
““member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;”Member’s explanatory statement
This amendment excludes those who are members of the provider, solely due to having been a student of the provider, from being a “member” of the provider for the purposes of Part A1 of the Higher Education and Research Act 2017.

[Earl Howe (Con)]

My Lords, government Amendments 9, 12 and 31 are officially classed as “minor and technical” although I would not want to downplay their significance. They will clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life, in particular members of the governing councils of universities and retired academics who are emeritus professors.

However, the noble Lord, Lord Wallace of Saltaire, tabled amendments in Grand Committee with the intention of probing the meaning of “members” in the Bill; the noble Baroness, Lady Smith, spoke on his behalf. During the debate, several noble Lords expressed concern at the use of the term “without qualification”, as some registered providers and colleges treat their students as members for life. After the debate, my officials looked into the matter and confirmed that this is the position in the case of, for example, the University of Cambridge.

As a result, the Government have tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. I should make it clear that, if a current student’s freedom of speech is wrongly interfered with, they may still make a complaint even after they have left university. These amendments do not affect that. I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, for initiating in Grand Committee the discussion that brought this issue to light; I hope the House will agree that these amendments are necessary.

Amendment 24, as tabled by the Government, will distinguish between new functions imposed on the Office for Students by the Bill. It will amend the power in new Section 69A(2), in Clause 5, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values.

My noble friend Lord Willetts tabled some amendments to Section 69A in Grand Committee. When my officials considered these, it came to light that the wording of this provision might cause some confusion. This is because it refers to

“the promotion of freedom of speech and academic freedom”.

That wording replicates Section 35 of the Higher Education and Research Act 2017, 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”.

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[Lord Grabiner (CB)]

My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.

[Earl Howe (Con)]

My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.

Amendment 9 agreed.

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Moved by

[Earl Howe]

13: Clause 3, page 4, line 41, leave out “, beliefs or views” and insert “or opinions”
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).

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Moved by

[Earl Howe]

17: Clause 4, page 6, line 22, after “A1” insert “that causes the person to sustain loss”
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.

[Earl Howe (Con)]

My Lords, the Government have tabled Amendments 17, 18 and 19 in response to an amendment tabled in Grand Committee by the noble and learned Lord, Lord Etherton. These amendments make clear on the face of the Bill what we have maintained is already the case: only a person who has suffered a loss as a result of a breach of the specified duties can bring a claim before the courts. This is not limited to pecuniary loss and could include damage to reputation, for example. I am happy that we can make that clear.

Amendment 20, tabled by the Government, provides that claimants must first have exhausted the complaint procedure of the OfS or the OIA before they can bring proceedings under new Section A7. Both Policy Exchange and the Russell Group have called for an amendment along these lines as a considered and proportionate response. This amendment will mean that a complaint on the same subject must have been made to either complaint scheme, and that a decision must have been made under the scheme on the extent to which the complaint was justified.

If a complaint fails because, for example, it is brought out of time under the rules of the complaint scheme, then the complainant will not be able to bring a civil claim. It is useful to note that the OIA has a deadline of 12 months, so the OfS may have something similar. We think that this outcome is right. Equally, if the OfS or OIA dismisses a complaint without considering its merits because it considers it frivolous or vexatious, as they are entitled to do, the complainant would also not be able to bring a civil claim under new Section A7.

However, I should be clear that, if the complainant is unhappy with a decision of the OfS or OIA which means that they would be unable to bring a claim under new Section A7, then judicial review will be available for them to challenge it. The purpose of Amendment 20 is to make clear what we have always said: the tort will operate as a backstop, since we did not anticipate that many complainants would pursue legal proceedings rather than the free-to-use complaint schemes.

I am therefore happy to make this clear in the Bill on the basis that it will alleviate concerns raised by several noble Lords that the statutory tort will burden universities with dealing with unmeritorious and costly claims, as well as potentially undermine the OfS as a regulator and operator of the new complaints scheme. This point has been made by the noble Lord, Lord Grabiner. On this latter point, I should say that the OfS will undoubtedly welcome case law from the courts, since it will help going forward on its decision-making and formulation of guidance.

I will say more when I sum up. I hope that noble Lords will see these amendments as helpful and as a useful response to the debates we had in Grand Committee. I beg to move.

[Lord Grabiner (CB)]

My Lords, I thank the noble Earl the Minister and the Minister the noble Baroness, Lady Barran, for the explanations that they have provided in the House, in correspondence and at meetings that we have had. That said, I am afraid that I am still firmly against Clause 4 and believe that the Bill would be improved if it were deleted.

I will not repeat the points I made in Committee, but I summarise my concerns by reference to the Minister’s closing remarks on day 3 in Committee on 14 November, in Hansard cols. 725-30, and the government amendment now before us. My starting position, unlike that of some noble Lords, is that I am in favour of the introduction of the new duties to be imposed on universities, colleges and student unions. The Minister has given many examples of absolutely unacceptable behaviours designed to undermine speech freedom. In short, I agree with the Government that, in light of the developing experience, it is now necessary—unhappily—to enshrine freedom of lawful speech in primary legislation.

We have two very experienced regulators in our higher education system: the Office for Students and the Office of the Independent Adjudicator—the OfS and the OIA. In my view, these new duties should be enforced only by the expert regulators. This would be a natural and logical extension of their regulatory powers and they would bring to bear their specialist expertise in this clearly defined area of educational activity. It is also the case that these regulators are subject to judicial review in the courts. Thus, if the decision-making regulator takes into account irrelevant matters, or fails to take account of relevant ones, or is plainly wrong in law, the complaining party can apply for judicial review. If it is necessary to have what the Minister calls a “backstop”, the judicial review mechanism fits the bill precisely. Given the regulatory and higher education context, I do not believe it is necessary, still less is it desirable, to make express provision giving a civil law cause of action in tort which would enable the claimant to pursue a claim in court against the university, the college or the student union, as the case may be.

In the debates that we have had thus far, it seems to me that three issues have emerged which, taken together, strongly suggest that Clause 4 should be deleted from this Bill. First, I and other noble Lords believe that Clause 4 would be an open invitation to ill-motivated trouble-makers—if the social media is taken at face value, there are plenty of them out there. The trouble-makers would inevitably wish to use the very public platform provided by this new access to the courtroom to advance their own ideological stance.

Secondly, we know that universities and student unions are very poorly funded. We should not be subjecting them to the risk of unnecessary and expensive litigation. That is especially the case when we have an established regulatory structure in the sector.

Thirdly—this point has been made in particular by the noble Lord, Lord Macdonald of River Glaven, but also by other noble Lords—the fact that Clause 4 exists will have a chilling effect on the academic sector. Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited. On the first day in Committee, the noble Earl the Minister pointed out, correctly in my view, that

“there is no right to a platform”.—[Official Report, 31/10/22; col. GC 36.]

That is an important point. It is obvious that college authorities and student unions will bear it well in mind. They will inevitably err on the side of caution and rather anticipate and avoid any risk of Clause 4 litigation simply by not inviting speakers who are or may be perceived to be controversial.

This would produce the very opposite of what is intended by the Bill: lawful freedom of speech will have been denied and we will never know the details. I wonder how many universities, colleges or student unions would invite JK Rowling to speak if Clause 4 were in force. My guess is that they would not invite her. That is a shocking fact and is precisely the result we would wish to avoid.

Ministers have separately sought to justify Clause 4, and I will address the points that have been made on the new government amendment before us. It is said that, in practice, there is nothing in my first issue—the ill-motivated claims point. It is accepted that such claims will be made, but it is said that they will be thrown out peremptorily and that the costs incurred by the university or student union would be recovered from the vexatious claimant. This is pure assertion and speculation. It would not be difficult to formulate a plausible argument that the court would be reluctant to halt at the embryonic stage. Also, if you win, it is never easy to recover your costs: the claimant is likely to be elusive and probably penniless, and the process of seeking recovery is time-consuming and expensive. Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?

Next—this is said to be a key point—the Minister repeatedly describes the new tort as a necessary “backstop measure”. The new amendment takes account of some of the criticisms made in Committee on the Bill as originally drafted. If left as it is, there would concurrently be in place the regulatory procedures as well as the new civil law cause of action, without any rules as to priority or the relationship between the two. The new amendment requires that mediation at the college level and all regulatory procedures should be exhausted before a claimant can use Clause 4. I agree that that clarifies matters, but unfortunately it still leaves us with Clause 4.

The argument now relied on by the Government, off the back of the new amendment, is that the individual claimant should be able to claim damages in court for loss, which could not be done in judicial review proceedings—it is correct that an individual cannot recover damages in a judicial review case. This is interesting, but noble Lords should realise that this represents a significant change of tack by the Government, because the Bill as drafted made no reference at all to losses or compensation. The new amendment gives no definition of loss—it might encompass hurt feelings and financial loss, such as wasted travel expenses and matters of that kind—but it is obvious that we are talking about very small amounts of money.

How do you measure, in financial terms, the damage done to someone whose freedom of lawful speech has been undermined? A judge is not entitled to pick a figure out of the air; there must be a rational explanation for the amount of damages awarded. In my view, there is no substance in the argument that the complainant needs a damages remedy; he, she or it will not be able to prove any serious financial loss. In any event, I suspect that, in the mind of the complainant, damages would not be a top priority; it is more likely that the remedy of a declaration, perhaps coupled with an injunction, would be the aim.

Professor Kathleen Stock has been referred to in relation to other amendments, but I should mention her in this context, in case it is suggested that she is a good example of why Clause 4 is necessary. I have every sympathy for Professor Stock, and I am certain that everyone here also does. From what is publicly known of the case, it looks as though she was treated very badly indeed by her employer, the University of Sussex, and, it seems, by some academic colleagues who should have known better. That said, she could have sued her employers for breach of her employment contract, but, for whatever reason, she chose not to. In the circumstances, Clause 4 would not have improved Professor Stock’s position.

My concern is that Clause 4 will be used by mischief-makers, whereas our real focus in this House should be the effectiveness of the regulatory function in ensuring that these new and important duties are understood, respected and properly enforced. In my view, the supposed financial protection of the individual claimant is a distraction and a sideshow. I believe the Bill would be greatly improved if Clause 4 were deleted.

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[Lord Collins of Highbury (Lab)]

My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.

My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.

Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.

[Earl Howe (Con)]

My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.

The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.

We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.

The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.

The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—

[Lord Grabiner (CB)]

I am grateful to the Minister for giving way. With respect, I did not say that they would not be quantifiable. My point was that there would be difficulty in quantifying the figure but in any event, in my view, for what is worth, the figure that you would arrive at would be peanuts, or not much more. That is why I could not really understand the significance of the argument that the reason for the tort was to protect the financial position of a complaining party.

[Earl Howe (Con)]

I am grateful to the noble Lord. It is not the only reason for the tort, as I shall go on to explain. I was going to say that we need to bear in mind that under a judicial review the court would consider standard judicial review grounds, such as a failure to take relevant considerations into account, rather than the substantive issue of whether reasonably practicable steps were taken.

Equally, it has been argued that the tort is not necessary because a claimant could bring a claim for a breach of Article 10 of the European Convention on Human Rights. However, again, this would not be available in relation to student unions because they are not public authorities, and the test for whether damages may be awarded is not an easy one to satisfy. Again, the court would consider whether there had been a breach of Article 10, rather than of the duties under the Bill.

In Grand Committee the noble and learned Lord, Lord Etherton, suggested that we should specify in the Bill what remedies are available in a tort claim. I come back to the point made by the noble Lord, Lord Grabiner, a moment ago, which was a helpful intervention because it highlighted the potential role that court proceedings could have in particular cases. The Government’s intention is that damages should be available to compensate the claimant for the loss they have suffered. We can argue about whether the damages are nugatory or more substantial.

There may be situations in which an injunction is appropriate, for example if a student is expelled from their course and so the court orders the provider to offer them a place on the course for the following year. Other remedies may be suitable in some cases, in addition to these—perhaps a declaration. Our view is that where a claimant does not believe that they have been fairly dealt with by the OfS or the OIA, we should leave it to the courts to determine what is appropriate in an individual case.

Various noble Lords have raised concerns that the tort will create a chilling effect, dissuading higher education providers, colleges and student unions from inviting controversial speakers to campus because of fear of litigation. My noble friend Lord Willetts raised this concern; I understand him to believe that the availability of the tort may cause students or academic staff to self-censor over fears of being labelled a controversial speaker or lecturer.

To say that the Government are not convinced by these arguments is an understatement. The stronger counterargument appears to us to be that the Bill as a totality, including the tort and codes of practice, will create a stronger regime that will encourage providers to make sure they are getting their decisions right and will encourage a change of culture across our campuses. That regime and change of culture will deter providers from the notion of simply not inviting controversial speakers and will give greater protection to academic staff to speak out.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed a concern that has been raised with me in other contexts outside the Chamber—that the OfS complaints scheme will simply take too long to reach a decision. I am glad he raised that point, and I hope I can reassure noble Lords on that score. The OfS will consult on the scheme rules and will publish clear expectations on timetables. It will be held to account on its efficiency and the effectiveness of the scheme by its board and by the Government.

As a possible exemplar, the OIA says of its complaints scheme that it commits to normally sending a complaint outcome within 90 days of receiving all the necessary information. It also says that where a party needs a case to be reviewed particularly quickly, it can request that it be prioritised. Some cases may take six months to review overall, by the time all the information has been gathered, but others may take much less time, depending on the complexity. It is worth noting in this context that the limitation period for bringing a civil claim is six years, so there is little risk of missing that deadline if this approach is taken. I hope that explanation gives some comfort to those who are concerned that a complaint may go into some sort of black hole and not come out again for years and years.

I want to cover another issue that was raised in the context of government Amendment 20, so that it is understood. We do not consider that this amendment would prevent a person seeking an interim or emergency injunction in the courts. Such an injunction would be sought in a case where the claimant wants to prevent a future breach of the specified freedom of speech duties, rather than where a breach has actually occurred—in other words, where there is the threat of a breach. In that case, an individual would not be able to complain to the OfS or the OIA under either scheme, as there has been no breach yet. Accordingly, the requirement to have first exhausted a complaint scheme would not apply and the claimant could in principle go straight to the courts.

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Moved by

[Earl Howe]

18: Clause 4, page 6, line 25, after “A1” insert “that causes the person to sustain loss”
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.

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[Lord Collins of Highbury (Lab)]

My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.

One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.

The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.

[Earl Howe (Con)]

My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.

The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.

If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.

However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.

Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.

Given those points, I hope that noble Lords will agree that this amendment is not necessary.

[Lord Sikka (Lab)]

I am grateful to the Minister and all the other participants in this debate for the vital points that they have made. This amendment is not about sources of funding. It is about the ability to disseminate research findings when the funder decides that the outcomes are not what they were looking for but are of vital interest to other stakeholders. It is when those findings are suppressed that I am really concerned about. I gave an example from my personal experience but, if you met academics on the conference circuit, many of them would tell you similar kinds of stories. That issue remains, and I do not see anything in the Bill to address it.

I am grateful to the noble Lord, Lord Wallace of Saltaire, for his comments but I do not think that this is an issue of codes of practice. Codes of practice cannot bridge asymmetric power relationships. The more powerful are going to define the codes of ethics; they do not give anybody any enforcement rights. You cannot go to a court and say, “I want to enforce a code of conduct”, because no law of any kind has been breached. There are issues around adjudication and enforcement. Before long, we will come back to the need for a legal framework.

I am also not convinced by the argument that it is up to the institutions. What can universities do? They are hungry for external money, and will persuade and pressurise academics to get it. Beyond that, they are not really interested in how the academic negotiates publication. They cannot deal with that. Then the academic is left on his or her own versus what the funder desires. Academics may well have spent a long time on their research but they will have nothing whatever to show in terms of any publications, dissemination or conference presentations. They are left on their own versus a very powerful provider of research. The Bill does not do much on this issue either.

The Minister said that this amendment could have a chilling effect on research grants. I do not see how. Let us say that two parties want to negotiate on some blue-sky thinking, develop some new technology to manufacture engines or whatever, and want to consult an academic. If it is agreed that this kind of research would be confidential, that is fine. Nobody is interfering with that. The point is about what your research findings show. For example, imagine somebody is looking at the effects of living in poor housing and suddenly discovers that a two year-old child is breathing mould and is therefore likely to be disabled for the rest of his life. What should they do? Should they be quiet? At the moment, they can be silenced by the landlord. I am giving people freedom. I am saying that they should have the freedom to communicate that living in those kinds of housing conditions is damaging and can kill people. However, the response I am getting from both Front Benches is, “We can’t have that”. That is unacceptable. People reading this debate will see that it is unreasonable. How will we eradicate the conditions that I have just described for people living in poor housing? I have not heard anything in this debate to offer me any comfort on this point.

Nevertheless, I am grateful to noble Lords. Since both Front Benches are opposed to my amendment, or at least do not fully support it, I have no choice but to withdraw for the time being. However, as and when an opportunity arises, I shall return on this issue.

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Moved by

[Earl Howe]

24: Clause 5, page 7, line 12, leave out “the promotion of” and insert “how to support”
Member’s explanatory statement
This clarifies that the new function conferred on the OfS enabling it to identify good practice in freedom of speech matters and to give advice about such practice is not directed at giving guidance to providers about how to discharge their new duty to promote the importance of freedom of speech.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

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.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

I conclude with this point. Protecting academic freedom goes beyond partisan political lines. It provides a solid basis on which academics can feel secure enough to test and challenge the perceived wisdom. No matter how much we disagree on some of the issues—my noble friend Lord Hunt and I have disagreed on some of them—we are at one on protecting the principle of free speech and how we change the culture. As a trade unionist, I come back to that basic point. Codes of practice and understanding responsibilities are the most important things. I hope that, in our debates on the Bill as we go through each clause, we will have that uppermost in our minds.

[Earl Howe (Con)]

My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.

Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.

The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.

This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.

Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.

Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.

There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that

“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.

We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation

“must be read and given effect in a way which is compatible with”

the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.

The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.

As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.

There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.

I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.

Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes

“the freedom to express ideas, beliefs and views without suffering adverse consequences”.

This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.

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[Lord Grabiner (CB)]

I am sorry to interrupt, but the Minister said a couple of times that subsection (11) is a definition of freedom of speech. I respectfully suggest that it is no such thing; it simply says that

“references to freedom of speech include the freedom to express ideas”,

and so on. It is not a definition at all. It merely gives an example of what freedom of speech would be. The point about the amendment tabled by the noble and learned Lord, Lord Hope, in particular is that it requires the introduction of a definition into the Bill, not simply the provision of an example of what freedom of speech might consist of. I suggest that a definition is essential, otherwise you will simply be scrabbling around to see what somebody thought freedom of speech might have meant in 1986. We have a perfectly excellent definition in the human rights legislation and the convention, and I am not quite sure why there is such a determination to avoid the obvious, so to speak.

[Earl Howe (Con)]

I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.

I emphasise that the duty in the Bill to take reasonably practicable steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.

[Lord Collins of Highbury (Lab)]

Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?

[Earl Howe (Con)]

We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.

We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.

I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.

[Lord Moylan (Con)]

Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?

[Earl Howe (Con)]

I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.

Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.

The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.

The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.

If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.

Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.

The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.

It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.

The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.

I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.

I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.

[Baroness Smith of Newnham (LD)]

My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.

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[Baroness Thornton (Lab)]

My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.

I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.

[Earl Howe (Con)]

My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.

Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.

A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.

The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.

[Baroness Smith of Newnham (LD)]

It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.

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[Earl Howe (Con)]

I would be happy to take this away and investigate. Once I have done so, I would be happy to write to the noble Baroness and the noble Lord, Lord Wallace.

[Lord Triesman (Lab)]

I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.

[Earl Howe (Con)]

I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.

I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.

“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.

I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.

[Lord Mann (Non-Afl)]

Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?

[Earl Howe (Con)]

I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—

[Lord Mann (Non-Afl)]

So, is the Minister clarifying that there is nothing in the Bill that would prohibit the university from sacking that emeritus professor if the university determined that it was appropriate?

[Earl Howe (Con)]

Exactly right.

I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.

The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.

[Lord Macdonald of River Glaven (CB)]

Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?

[Earl Howe (Con)]

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

[Baroness Chakrabarti (Lab)]

I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.

[Earl Howe (Con)]

We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.

At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.

The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.

How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.

[Earl Howe (Con)]

My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.

Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.

In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.

In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.

Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.

I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

[Lord Triesman (Lab)]

I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?

[Earl Howe (Con)]

Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.

This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.

The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.

[Lord Triesman (Lab)]

When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?

[Earl Howe (Con)]

I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.

[Lord Grabiner (CB)]

If I may respectfully say so, that is a terribly important point. It is obviously critical that people give careful consideration in advance as to whether they are going to invite a particular speaker, or whoever it may be, to come along and speak. I made a note of what I regard as a rather important observation the Minister made a little earlier this evening; he said that there is no right to a platform. That is a very important point. If I may say so, it would be helpful to record that point in the code of practice in due course, because if at the outset the relevant university organisation can anticipate a problem, one way of resolving that problem, including the cost question, is simply to say, “There is no right to a platform and we are not going to invite this person to speak”. That also involves necessarily the proposition that each of the university institutions has a very good processing place for room booking and matters of that kind. That is a very important point. I respectfully suggest that the code of practice should emphasise the importance of that discretionary power, which would not give rise to any liability or obligation on the institution under the Bill, if and when it becomes legislation, and that institutions are free to say no from the outset.

[Earl Howe (Con)]

I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.

[Baroness Smith of Newnham (LD)]

Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?

[Earl Howe (Con)]

We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.

To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.

[Lord Stevens of Birmingham (CB)]

I beg leave to withdraw Amendment 5.

Draft Mental Health Bill Committee

Earl Howe Excerpts

Monday 4th July 2022 Lords Chamber

Moved by

[Earl Howe]

That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the draft Mental Health Bill presented to both Houses on 27 June 2022 (CP 699), and that the Committee should report on the draft Bill by 16 December 2022.

[Lord Foulkes of Cumnock (Lab Co-op)]

I wonder if it is possible to ask a question on this. This is a good way of dealing with a Bill. Why is a similar procedure not being followed for the Bill of Rights?

[Earl Howe (Con)]

My Lords, the Bill of Rights fulfils a key manifesto commitment of the Government. We have already conducted a thorough and detailed consultation on it, which is why we think it right to introduce the Bill now and let the whole House debate it. Having said that, I am sure my right honourable friend the Deputy Prime Minister and my noble and learned friend Lord Bellamy would be pleased to engage with the noble Lord, other noble Lords and the relevant Select Committees as the Bill makes its way through Parliament.

Motion agreed.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

Moved by

[Earl Howe]

That the Bill be now read a second time.

[Earl Howe (Con)]

My Lords,

“If liberty means anything at all it means the right to tell people what they do not want to hear.”


George Orwell’s words from 1945 remain just as apposite today. I hope and believe that we are all in agreement that freedom of speech—the right to voice one’s opinion without fear of repercussion—is vital to the proper functioning of a democratic society. This principle is surely no less important in a university setting. Free speech is the lifeblood of a university, allowing students and teachers to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge.

The phrase “world class” is sometimes overused, but our higher education is world class, and it would not be wrong to equate much of its success to the value we place on free speech in this country. You need only look to some of our most influential historical figures to understand how free speech can influence the course of history. Let us not forget that the views of trailblazers such as Emmeline Pankhurst and Mary Wollstonecraft were first dismissed and ridiculed, but their willingness to stand up and argue for what they believed in ultimately secured women the right to vote.

Both students and academics arrive at our universities expecting to be challenged. Yet, we know that fear of censure is increasing and this is having a chilling effect on discourse and debate. There is a growing body of evidence to bear this out: the proportion of students who believe that universities are becoming less tolerant of a wide range of viewpoints has risen to 38%; this figure stood at 24% in 2016. Here, I thank my noble friend Lord Johnson who, as Universities Minister, was one of the first to raise concerns on this important matter, including in his landmark speech at the Limmud conference in December 2017.

I firmly believe that we must address these issues and that the Bill before us is the best way to do so. By way of an example—which happens to be the freshest in my mind—the experience of my right honourable friend the Secretary of State for Education at the University of Warwick highlights that, even if we do not agree with views expressed by others, it does not mean that we have the right to silence them. A student firmly interrogated the Secretary of State’s statement on trans rights. Their views differed greatly but, as the Secretary of State said, the student’s

“right to free speech is vital too”.

Areas of disagreement do not always have to be met with hostility; there is scope to agreeably disagree. I am looking forward to hearing the views of noble Lords during today’s debate, and I thank those who have come to contribute to it.

The Bill will protect lawful freedom of speech and academic freedom on campus. The measures will strengthen existing legislation and address gaps in existing law. As I shall explain, these are very much active measures, not just a means to address a problem once a breach of the duties has taken place. New duties will be placed on higher education providers and constituent colleges to take “reasonably practicable” steps to secure freedom of speech within the law for staff, members, students and visiting speakers. They will be duty bound to pay particular attention to the importance of free speech when taking these steps. Importantly, these duties also, for the first time, clearly extend to “academic freedom”.

In a new measure, the Bill will require providers and constituent colleges to promote the importance of freedom of speech and academic freedom. The Office for Students will be bound by a similar duty. Furthermore, higher education providers and their constituent colleges must develop and publish a code of practice, which must include an overarching statement of the values and procedures they will uphold, and which they must bring to the attention of their students at least once a year.

Student unions are at the heart of many students’ university experience; they offer a distinct space for students to come together and engage in areas particularly close to their heart. This legislation, therefore, contains duties that apply specifically to student unions at approved fee cap providers, which is the majority of registered higher education providers. Like higher education providers and constituent colleges, under this legislation they must take steps to secure lawful freedom of speech. Similarly, they must publish their own code of practice.

At present, there are no effective means of enforcing the current law if higher education providers are in breach of it. This may explain some individuals’ hesitancy to express their views. To address this, the Bill creates a new statutory tort for breach of specified freedom of speech duties by providers, constituent colleges and student unions. This will enable individuals to seek legal redress for the loss they have suffered as a result of a breach.

The higher education sector will play a leading role in delivering the ambitions of this legislation, but the regulator also has an important part to play. The Bill gives new powers to the Office for Students, which will identify best practice and provide guidance on how to secure and promote free speech. The Office for Students will be required to impose mandatory registration conditions on providers relating to freedom of speech and academic freedom, as well as monitoring the compliance of student unions with their freedom of speech duties. As with the lack of an enforcement mechanism, there is currently no specific route for all those who might be affected to lodge complaints relating to freedom of speech. The Bill creates a requirement for the Office for Students to provide a complaints scheme that will provide a right of redress for students, members, staff and visiting speakers. This scheme will be overseen by the Director for Freedom of Speech and Academic Freedom, a new position on the Office for Students board. These measures will enhance the strengthened freedom of speech duties and encourage compliance.

On Report in the other place, my colleagues introduced several minor and clarificatory amendments. Two substantial amendments were also tabled. The first creates a duty for providers, constituent colleges and student unions not to pass on security costs associated with free speech events to the organisers, unless there are exceptional circumstances. The second was an amendment on “overseas funding”: this creates a duty for the Office for Students to monitor overseas funding received by higher education providers, their constituent institutions and student unions. This will enable them to assess the extent to which the funding presents a risk to freedom of speech and academic freedom.

I finish by emphasising that the Bill is not about allowing unlawful speech. The right to freedom of speech is not an absolute right and it does not include the right to harass others or incite them to violence or terrorism. This is definitely not a licence to break the law. The Bill is about encouraging varied and thoughtful debate, so that future generations develop the ability to think critically, challenge extreme narratives and put forward new—and sometimes controversial—ideas. I firmly believe that these are essential skills in a modern, forward-facing society. I look forward to the debate ahead of us today and beg to move.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, this has been a memorably good debate. I thank all speakers for the knowledge and personal insights that they brought to it. I am grateful particularly to those noble Lords who felt able to give the Bill a broad welcome and I look forward to their constructive support as it proceeds.

As we heard, by no means all who have spoken were so positive. Some, such as the noble Lords, Lord Wallace of Saltaire and Lord Collins, the noble Baronesses, Lady Thornton and Lady Royall, and my noble friend Lord Willetts are clearly very troubled by the Bill. So it is perhaps appropriate for me to start by addressing some of the deeper-rooted concerns that were expressed.

From the noble Lords, Lord Wallace and Lord Collins, the noble Baroness, Lady Garden, and others, we heard genuine concern that there is no substantive problem to be addressed and that any chilling effect or cases of no-platforming are being exaggerated, possibly even for political reasons. I understand these concerns, but let me try to allay them. The reality is that one needs look no further than the available data and information from the higher education sector itself to see that there is a problem.

In October last year, 200 academics wrote to the Times to report that they had received death threats and abuse simply for expressing views. They did not feel supported by their universities. One of those academics had expressed an opinion about the need to protect women-only spaces, such as refuges, prisons and hospital wards. However, this brought her into conflict with students and staff, who saw her opinions as transphobic. It also caused her to be compared to eugenicists and white supremacists, in addition to being called a bigot. This is just one case among those 200 staff who wrote to the Times.

Several studies, surveys and reports highlight instances in which freedom of speech and academic freedom are being curtailed in the higher education sector. A 2019 King’s College London report showed that 26% of students think violence can be justified in preventing someone espousing hateful views. A similar proportion reported not feeling free to express their views at university for fear of disagreeing with their peers.

There are also high-profile cases in which academics have been harassed for expressing perfectly lawful views. The noble Lord, Lord Macdonald, cited the case of Professor Kathleen Stock, who resigned from her post at the University of Sussex due to fears over her personal safety after harassment from students. There are many similar examples. Professor Rosa Freedman’s door at the University of Reading was drenched in urine. At Oxford a left-wing feminist academic, Selina Todd, had to be given security guards after threats to her safety. Raquel Rosario Sánchez, a PhD student at the University of Bristol, was subjected to a campaign of intimidation by trans activists after agreeing to chair an event, held by Woman’s Place UK, called A Woman’s Place is Speaking Out. I could go on.

There is without doubt a problem with the suppression of free speech on university campuses. I want to be very clear: it is not confined to either the right or the left of political opinion. This leads me on to my next point, which is to address concerns that the introduction of the Bill is politically motivated. Students and academics from across the political spectrum have been impacted by the censure of free speech on campuses. From those on the left to those on the right, there is a real fear about airing what might be controversial opinions. The Bill is designed to protect free speech on a diverse range of topics, including minority ones. Freedom of speech and academic freedom are fundamental principles in higher education. This is not about promoting and protecting one political view over another.

I will clarify a further point, prompted by the noble Baronesses, Lady D’Souza and Lady Garden, and mentioned by the noble Baroness, Lady Fox. The Bill is not just about eradicating no platform. It is about creating a wider culture on campus, such that everyone feels able to express their views and challenge those of others, even when those views are unpopular or controversial, and to do so without fear of negative consequences. Everyone needs to be aware that when things do not go as they should, there is a meaningful route of redress for individuals.

The noble Baroness, Lady D’Souza, followed that up by asking: does this not need cultural change, not just legislation? Absolutely, yes. This needs cultural change, and we welcome initiatives by universities, academics and students to do all they can to move in that direction. But as we have seen historically on issues such as gender equality, race discrimination and human rights, cultural change occurs more readily when backed by appropriate legislation.

I turn now to an issue that has given rise to a number of expressions of concern. I listened carefully to noble Lords such as the right reverend Prelate the Bishop of Coventry, my noble friend Lord Willetts and the noble Baroness, Lady Shafik, who are worried that the creation of a new tort, as proposed in Clause 4, may lead unintentionally to a deluge of court cases initiated by vexatious, publicity-seeking pressure groups. Nobody, least of all the Government, wishes to see universities burdened in this way. It may be helpful if I explain why I do not think the scenario that some noble Lords envisage is at all likely.

To succeed with a civil claim, a claimant would need to be able to show that a provider, college or student union owes them a duty of care; the category of those potentially owed a duty of care under the Bill is narrowly defined. They would then need to point to a genuine and material loss they had suffered as a result of a breach of the freedom of speech duties. Those tests are not a low bar, and any claimant who pursued their case vexatiously would certainly struggle to prove it. In the background, of course, a vexatious claimant would be assuming a considerable financial risk, not only in the form of their own legal costs but by being potentially liable for those of the defendant. That is why we believe the tort will be resorted to very much as a backstop. The availability of the free complaints scheme through the Office for Students, which will provide a much easier and more straightforward route to redress, should make litigation unnecessary and therefore unlikely in the vast majority of circumstances.

Setting aside for a moment the concerns around the tort, the noble Lords, Lord Wallace and Lord Storey, and the noble Baroness, Lady Royall, expressed a worry that the wider provisions of the Bill would impact on higher education institutions in terms of administrative burdens. I am the first to agree that unnecessary bureaucracy directly impacts on how well higher education providers can do their job; every pound spent on unnecessary bureaucracy is a pound less that is being spent on teaching and research. However, I am also convinced that if straightforward measures can be put in place to protect our core UK values, it is right and necessary that we do so. We have ensured that their scope is proportionate to the risk. To pick up a point made by the right reverend Prelate, we sincerely hope that providers and student unions will embrace the mission to generate rigorous and healthy debate on campus, understanding how vital it is to academia and our country’s democracy.

I turn to the proposal in the Bill to create a new post in the Office for Students: the director for freedom of speech and academic freedom. The noble Baronesses, Lady Thornton and Lady Royall, and the noble Lords, Lord Storey, Lord Wallace and Lord Collins, asked several questions about the appointment of this individual. As has been mentioned, the role was advertised publicly from 13 June 2022. To allay the doubts expressed on that score by the noble Baroness, Lady Thornton, and the noble Lord, Lord Collins, I can reassure them that the Government can undertake preparatory actions in anticipation of full implementation following Royal Assent.

Worries were expressed about bias in the appointments process. Freedom of speech and academic freedom are fundamental principles in higher education, not the preserve of one particular political view. The director for freedom of speech and academic freedom will be appointed in the same way that other members of the OfS are appointed, under the Higher Education and Research Act 2017 by the Secretary of State, and this will be done in the usual way in accordance with the public appointments process.

My noble friend Lord Willetts, who I am sorry to see is not in his place, asked why we need the regulatory route as well as the tort. As he is not here, I will write to him about that and copy the answer to other noble Lords.

The noble Baroness, Lady Royall, argued that the Bill establishes the possibility of simultaneous penalties. It is already possible for there to be a complaint through the Office of the Independent Adjudicator for Higher Education and regulatory action at the same time. The Bill does not change that. These actions perform different functions, with the complaint having the potential to provide the individual with redress but with regulation intended to ensure that provider behaviour as a whole meets its registration conditions using a proportionate approach based on risk.

The noble Baroness, Lady Deech, asked what the difference will be between the Office for Students complaints scheme and the complaints scheme operated by the OIA. While the Office of the Independent Adjudicator for Higher Education will remain the body for general student complaints about providers, the OfS scheme will focus exclusively on freedom of speech and academic freedom. The OfS will offer a complaints scheme for staff and visiting speakers who cannot complain to the OIA, as well as for complaints about student unions also not covered by the OIA scheme. All those who consider that they have suffered because of a breach of the new duties will have access to the OfS scheme, including students.

On a point raised by the noble Baroness, Lady Thornton, and the noble Lord, Lord Stevens, I make it clear that it will be for the OfS to make decisions, not the director personally. It is not unusual for a regulator to be able to consider legal matters when making decisions; for example, the Charity Commission already does this in relation to charity law. It is also common practice for out-of-court redress schemes to consider legal issues when making decisions around a recommendation of redress. If alternative dispute resolution bodies could not consider legal issues, they would not be able to fulfil their functions. For example, the Office of the Independent Adjudicator for Higher Education does this.

Returning to the issue of political bias—I draw this to the attention of the noble Lord, Lord Wallace—it is important to note that the chilling effect on free speech appears to increase when political views are expressed. Studies confirm that this affects people from across the political spectrum. Policy Exchange polling shows that 15% of those identifying as centre or left are choosing to self-censor. The Government are clear that freedom of speech is not about promoting and protecting one political view over another.

The noble Lord, Lord Sikka, asked how providers are supposed to know what speech is unlawful. The Bill does not change the legal position in this country on what speech is lawful and what is unlawful. It will be for providers, constituent colleges and student unions to determine the lawfulness of speech by considering it in the light of the provisions of criminal law, such as the Public Order Act 1986 and legislation such as the Equality Act 2010. That is no different from the process that they must go through already.

My noble friend Lord Willetts asked whether the Bill was designed to protect all legal speech. Once again, as he is not here, I will write to him about that and copy my answer to other noble Lords. However, I say to the noble Lord, Lord Stevens, that there is nothing in the Bill that encourages higher education providers or student unions to encourage baseless and harmful claims or bad science on campus.

Certain noble Lords suggested that the Government were presenting a confused picture to universities on such matters as anti-Semitism. The example of the IHRA definition of anti-Semitism, also referred to by the noble Baroness, Lady Deech, was mentioned. First, it is up to providers as independent and autonomous organisations to decide on whether to adopt the International Holocaust Remembrance Alliance definition of anti-Semitism. Secondly, the Government do not see a conflict between protecting freedom of speech and adopting the IHRA definition. I believe the Bill strengthens protections for freedom of speech likely to support Jewish students and staff, who, on a number of occasions, have had their speech shut down by others. However, the Government recognise that the adoption of the definition is necessary but not sufficient, and there is more that providers need to do to make sure that instances of anti-Semitism on campus are not tolerated.

I shall comment briefly on the Prevent duty, mentioned by a number of noble Lords, including the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Macdonald. The Government are clear that the Prevent duty should not be used to suppress freedom of speech. The duty requires providers and constituent colleges, when exercising their functions, to have due regard to the need to prevent people being drawn into terrorism. The legislation imposing the Prevent duty in relation to higher education specifically requires that providers must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom.

A number of speakers, including the noble Baroness, Lady Deech, referred to the vexed issue of Holocaust denial. I wish to be very clear on this point: any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the European Convention on Human Rights, and our legislation does not change that. For the avoidance of any doubt, this legislation will not protect those who deny the Holocaust.

The noble Baroness, Lady Chakrabarti, asked about the Bill of Rights and specifically how that Bill and its amendments to Section 12 of the Human Rights Act will affect this Bill. The proposals to strengthen freedom of expression through reforms to the Human Rights Act complement the creation of this tort, which is seeking to give greater protection to free speech as well. If anything, the MoJ proposals only bolster the requirement that universities take steps to ensure free speech.

As a general comment, and in answer to those who have asked how the new duty fits with other legal duties a provider, college or student union may have under the Equality Act or criminal law, the duty to take “reasonably practicable” steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to a certain action, it would not be “reasonably practicable” to override that.

My noble friend Lord Strathcarron was worried about the potential clash between this Bill and the Online Safety Bill. It is perhaps a debate for Committee, but I shall seek to persuade my noble friend that there is no conflict between that Bill and the one before us.

The noble Baroness, Lady Royall, raised the issue of overseas funding and asked why the OfS will ask for information about this pre-emptively. We are ensuring that the scope of the new reporting requirement on overseas funding is proportionate to the risk. We recognise the importance of protecting commercial sensitivities so that the sector does not fall behind its competitors in the rest of the world. We must ensure that the Office for Students has the information at its disposal to enable it to better understand the possible extent of influence from a foreign source at a country level. The reasons for that were well articulated by my noble friend Lord Moore.

My noble friend Lord Johnson, the noble Baroness, Lady Shafik, and the noble Lord, Lord Storey, questioned the level of the proposed threshold for reporting the receipt of overseas funds by a university and argued that the threshold should be higher than £75,000, which is the currently intended level. For now, I have listened carefully to the points they made. The Government have struck what they consider to be the right balance, but this is a matter to be determined in regulations, so there will be ample time to discuss it further.

In answer to the noble Baroness, Lady Chakrabarti, who asked what criteria will determine what overseas funding is acceptable, we continue to welcome foreign investment and donations to higher education as they are a key part of supporting innovation and development within our universities. Through the Bill, we are simply trying to implement measures that help to safeguard our world-leading higher education sector from those who may wish to interfere with our values. I would be happy to meet the noble Lord, Lord Storey, and other noble Lords to discuss these issues.

Time is now against me, as I have just been rightly reminded. I shall write to noble Lords whose questions I have not had time to address, including my noble friend Lord Eccles and the noble Baroness, Lady Hoey, who asked me why the Bill does not cover the rest of the UK. I thank all speakers for their contributions once again. I hope that my responses provided some useful clarification in response to the thoughtful points and questions that noble Lords raised.

Freedom of speech in our universities is under threat: unfortunately, a growing trend aims to prevent anyone from airing ideas that some groups may disagree with or find offensive, and we cannot ignore that. Hence, today, I have set out how the Bill will ensure that freedom of speech is both protected and promoted in higher education. It will strengthen existing freedom of speech duties and directly address gaps in the existing law, introducing clear consequences for breaches of the duties. Therefore, I take pleasure in commending the Bill to the House.

Bill read a second time and committed to a Grand Committee.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Tuesday 28th June 2022 Lords Chamber

Moved by

[Earl Howe]

That it be an instruction to the Grand Committee to which the Higher Education (Freedom of Speech) Bill has been committed that they consider the bill in the following order:

Clauses 1 to 11, Schedule, Clauses 12 to 14, Title.

Motion agreed.

British Army: Troop Size

Earl Howe Excerpts

Monday 27th June 2022 Lords Chamber

[Lord Coaker]

To ask Her Majesty’s Government what assessment they have made of the British Army’s troop size.

[Earl Howe (Con)]

My Lords, the integrated review and defence Command Paper made clear that we must focus on defence capability rather than troop numbers in response to changing threats and priorities. Through Future Soldier, the Army will have a whole force of over 100,000, comprised of 73,000 regular service personnel and 30,100 Army Reserve. It is reorganising and re-equipping to face future threats. This will deliver a modern force that is more integrated, agile, lethal and fit for the threats of the future, not the battles of the past. It will be better connected and faster, integrated across domains with allies in NATO and beyond.

[Lord Coaker (Lab)]

My Lords, of course it is right that investment is going into new equipment for a modernised Army to fight the battles of now and the future. At the same time, however, dozens of battle tanks have been scrapped, the numbers of Chinook and Puma helicopters have been reduced, all C-130 transport planes have been taken out of service and the Army is to be cut to its smallest size for 300 years. The former head of the Army, General Sir Mark Carleton-Smith, has said that an Army of just 73,000 is “too small”. The new head of the Army meanwhile says that we need to be prepared

“to fight in Europe once again”.

With Russian aggression, increasing threats elsewhere and the risk of terrorism, along with greater use of soldiers domestically, why on earth do the Government think this is the right time to cut 10,000 soldiers?

[Earl Howe (Con)]

My Lords, let me emphasise that the Government recognise the need for the rapid modernisation of our Armed Forces. As part of that, we have committed to the biggest investment in the Army since the end of the Cold War: £41.3 billion. This process will entail a radical modernisation, supported by major investments in ground-based air defence, cyber and electronic warfare. As I said, we have to get away from the idea that capability can be defined only in terms of numbers of people; it is much more than that.

[Lord Dannatt (CB)]

My Lords, does the Minister agree, as he has just suggested, that it is not about numbers but capability? Does he agree that the capability of the British Army is well below what it should be for a nation of our standing and a permanent member of the UN Security Council? In the Cold War, not that long ago, we fielded four armoured divisions in Germany. We cannot field a single armoured division at present and there is a land war in Europe at the moment. Will the Minister tell us when we intend to increase the number of main battle tanks, infantry fighting vehicles, field-to-rocket artillery and the logistics to go with them? Frankly, the situation is untenable, and the Government must do something about it very soon.

[Earl Howe (Con)]

My Lords, I always listen with care to the noble Lord, Lord Dannatt, who has immense experience in this area. I assure him that under current plans the Army will be balanced to deliver right across the defence spectrum, to protect the homeland, engage with allies and partners overseas, constrain the aggressive activities of our adversaries and—if necessary—to fight wars. It is an Army that has been designed to fight but also organised to operate more productively and effectively.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches, I reiterate the concerns expressed by the noble Lords, Lord Coaker and Lord Dannatt, about the size of the Army. In his first Answer, the noble Earl referred to the integrated review and the increased defence expenditure. The latter was welcome but what assessment have the Government made of the current exchange rate against the dollar and inflation? It is all very well to bandy headline figures around, but what will that mean in terms of capabilities? Should we not be concerned about not only the size of the Army, which is too small, but defence expenditure more widely?

[Earl Howe (Con)]

The noble Baroness will remember that, as part of the spending review of 2020, MoD secured a generous £24 billon uplift to its budget. This will enable the Armed Forces generally to invest in things that they would not otherwise have been able to, including spending £6.6 billion on R&D, establishing a new space command, developing the next generation of naval vessels, developing a new combat air system for the RAF and enhancing our cyber capabilities. So a multitude of work is going on to improve the capability and capacity of all of our Armed Forces.

[Lord Robathan (Con)]

My Lords, given that, in 1946, Churchill in particular said that our allies the Russians—they were our allies—particularly despise military weakness, does the Minister genuinely think that today is a good time to reduce the Army, as we are doing as we speak?

[Earl Howe (Con)]

My Lords, through history, the same effects have been delivered by fewer and fewer people due to the smart employment of new technology. In our own day, robotics and artificial intelligence play into exactly the same trend: in reconnaissance, one drone can do a job done by scores of people in the past. So this emphasis on the integration of emerging technology will make an enormous difference to the capability of the Army and indeed across the Armed Forces.

[Lord Stirrup (CB)]

My Lords, the noble Earl made reference to Future Soldier. Can he tell the House by what date this country will be able to field a full fighting division, with all of the necessary attendant capabilities, including combat and logistics support and adequate weapon stocks?

[Earl Howe (Con)]

The noble and gallant Lord is well aware that we are not in a place that we would wish to be in, which is exactly why Future Soldier has defined the path over the next few years. The Army is designed to fight; it will remain that way, and we will ensure that it is equipped to do so.

[Lord Browne of Ladyton (Lab)]

My Lords, the noble Earl will be aware that our Armed Forces are essential to our national resilience as well as to national defence. Prior to the pandemic, requests to bring them in to assist civic authorities were already rising steadily, and they more than doubled during the pandemic: about 34,000 service personnel were deployed to support the pandemic response and, this year, the pre-pandemic increased tempo has been sustained. There is no mention of this trend in the integrated review, but surely, taking account of this increased demand and the increased national defence demand, this justifies a review of the size of the Army, if we are to become the most resilient nation in the world, which is the Government’s ambition.

[Earl Howe (Con)]

My Lords, I emphasise that the programme that we have called Future Soldier is the most significant transformation of the British Army in more than 20 years. As I say, it will create an Army that is more integrated with itself and with the other branches of the Armed Forces, and one that is more agile. This means an Army that can turn its hand not simply to combat in the field, which we hope that it will not have to engage in, but also to the tasks at home that the noble Lord so rightly drew attention to.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare my interest as a serving member of the Army—I choose that word carefully, because of course the “Army” is not only the regular Army but also the Army Reserve, and I get frustrated sometimes that we seem to misunderstand that. There needs to be an acceptance that the Army Reserve of today is not the Territorial Army of yesterday; a large proportion of Army Reserve members actually serve on a daily basis, bringing unique skills from civilian life and delivering against a defence demand signal. So, although quantity has a quality all of its own, is it not about making sure that we can access the right skills through the right medium to deliver to defence tasks?

[Earl Howe (Con)]

My noble friend is absolutely right: our reserves are intrinsically important to the future Army and our Future Soldier transformation programme. Integrating the reserves with regular units to support the delivery of tasks is a major feature of Future Soldier. Each reserve unit will have a clearly defined role and task, particularly—to answer the noble Lord, Lord Browne, incidentally—in relation to homeland resilience, where we expect reserves to take on greater responsibility.

[Lord Campbell of Pittenweem (LD)]

My Lords, can the Minister confirm that the cuts to the Army are to result in the reduction of only one unit—namely, the 2nd Battalion The Mercian Regiment—but the cuts are to be effected by reducing the numbers in battalions from 550 to 420, with a possible consequence that the support company, which is vital to the effectiveness of the overall battalion, may lack snipers, mortars and machine guns? Is technology going to deal with all this?

[Earl Howe (Con)]

My Lords, it is quite correct that the Army will be smaller and, therefore, will require fewer units in the infantry. This means that there is a requirement for one less battalion, as the noble Lord indicated; 1st Battalion and 2nd Battalion The Mercian Regiment will be merged, as the Defence Secretary announced last year. I hope that the noble Lord will have gained the sense, from what I have said already, that the reduction in manpower in that area will be more than made up for in the capability that the Army will gain as a whole.

Elections Bill

Earl Howe Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 28th March 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, I think that I am now the 11th Peer to tell the Minister that the legislation is not strong enough when it comes to protecting our elections from the financial bigwigs. Indeed, there was a report from the Committee on Standards in Public Life last July. I hope that the noble Lord, Lord True, is back with us for the next stage of this Bill, but we have had some discussions with him about how many of those recommendations in last year’s report the Government believe that they have incorporated in this Bill. He has been a little bit coy about that; I might perhaps try to tempt the noble Baroness or the noble Earl to try a little harder on which of the 47 recommendations in last July’s report by the Committee on Standards in Public Life the Government believe that they have incorporated in this Bill, and which ones they are positively rejecting.

However, I want to speak about a preceding report from the Committee on Standards in Public Life in 2011. I thought that maybe if it had a 10-year run-in, there might be a better chance that we would achieve success in this Bill from some of its recommendations. Noble Lords will know that I am a member of CSPL, but I certainly was not in 2011—I was fulfilling a different role then. That report reviewed the case for having any kind of financial limits on elections. The top risk is the risk of capture of a political party by donors, capture of its policy, its practice and its personnel. Regarding policy, some of us have been frustrated for a long time by the inability of successive Governments to get to grips with tax havens around the world. I am sure that it is completely unconnected that a number of donors live in tax havens, but it could be something which the public would be suspicious about, even if we are far too knowing to believe that a party might be influenced by that.

What about the difficulty in bringing offshore banking onshore? Could that have anything to do with where donors are starting from and where they are banking? What about getting a beneficial ownership register of all companies and making Companies House work properly? Again, we find very little progress, which is very much in the interests of people who make big donations to political parties.

So policy can be affected, perhaps by slowing it down or perhaps by driving it slowly into the sand. Some of us think that this Bill is a victim of that, with so many proposals not grasped but avoided. My noble friend Lord Clement-Jones gave some powerful evidence about the way in which there has been a failure, in this Bill, to confront electronic campaigning, as has been recommended to the Government by many bodies and persons.

There is a risk of capture of policy and of practice, and that is in how government acts and what happens. I point to the free market for high-end property purchasing in London, which has suddenly come to a grinding halt, at least as far as some purchasers are concerned. Obviously, it serves the economy of the UK fine to sell hugely overpriced houses and leave them empty, while various dictators in the former Soviet Union sit on their extracted wealth, but it is not all about foreign donors.

I bring to your Lordships another situation where government practice has been distorted by motives that are not necessarily in the best interests of public service. I refer to the company PPE Medpro, reported in the Guardian this morning as having secured a contract for the supply of 25 million sterilised surgical gowns during the pandemic. Those gowns were bought by PPE Medpro for £46 million and sold to the Government for £122 million. In this case, the money is going in the opposite direction to the one we have been talking about for most of this group of amendments. According to the Guardian report, it turns out that those sterilised surgical gowns were, in fact, unsterilised; they were not double-wrapped and they a had false or misleading BSI test number on them. I understand the Department of Health is trying to get its money back, but the mindset that led to that fiasco unfolding is part of the capture, by big donors and big-donor thinking, of a political party.

Then there is personnel—policy, practice and personnel. It is almost embarrassing to say it, but recommendation 19 of the 2011 report of the Committee on Standards in Public Life was that there should be full publication of the criteria for political appointments to the House of Lords. I plead guilty as a political appointment to the House of Lords, as probably should a number of other noble Lords here, but it makes the point that there is an unhealthy connection between money, donations and preferment. It is not simply the House of Lords that is in scope.

Amendment 212DA in my name repeats two of the recommendations from that 2011 CSPL report. In fact, the noble Baroness, Lady Bennett of Manor Castle, quoted from it but, for the purposes of time, left out some words beyond the end of that quote. Recommendation 1 states that there should be a limit of £10,000, which is the figure I have included in this amendment. There should be a democracy of donors, as was spelled out by the noble Baroness, Lady Bennett.

Recommendation 6 of that report figures in the second part of my amendment, in that there should be a reduction in national election spending limits of 15%. That was from the CSPL in 2011; the election spending limits had been in place for five years, at that time, and the committee thought they should be reduced by 15%. Fair enough—they have not been increased, but it has now been proposed that they should be increased by over 60%. Far from the 15% reduction that the CSPL thought was sensible 10 years ago, the Government now propose that they are increased by 60%.

I would put in a case for CSPL’s proposals and recommendations and therefore for my amendment. I also strongly support the other amendments that have been put forward. Perhaps the most powerful—not to decry any of the others—is what I have chosen to call the Rooker-Butler amendment, Amendment 212G, which should put the wind up every political party if it comes into force. It proposes that there should be a “risk assessment” for all donations over £7,500. It seems to me that, as a basis for proceeding further, it can hardly be beaten. But I cannot leave out the amendment of my noble friend Lord Wallace and the noble Baroness, Lady Hayman, that would capture “unincorporated associations” as well—this is recommendation 10 of the Committee on Standards in Public Life’s report of 2011.

I finish by simply saying that the Government may or not be ready to take on the recommendations of the Committee on Standards in Public Life’s report from last year, but, for goodness’ sake, will they please agree to take on those that it made 10 years ago and that have still not been implemented?

[Earl Howe (Con)]

My Lords, this group of amendments brings us to the subject of political donations, and I am grateful for the contributions from all sides of the House on this topic. I have listened carefully and noted the strength of feeling that clearly exists around it.

I will start with a word of general reassurance: the integrity of our political system is of the utmost importance to Her Majesty’s Government and, without doubt, all parliamentarians—the noble Lord, Lord Butler, was quite right in what he said on that score. Therefore, it is vital that the rules on political donations are kept continually under review. We must ensure that they continue to provide an effective safeguard to protect that system integrity.

Therefore, it is right that, as a matter of principle and practice, UK electoral law already sets out a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections can make political donations—and that political donations are transparent. This includes registered UK electors, registered overseas electors, UK-registered companies that are carrying out business in the UK, trade unions and other UK-based entities. Donations from individuals not on the UK electoral register, such as foreign donors, are not permitted. There is only a very limited exception to this, whereby, for political parties registered in Northern Ireland, permissible donors also include Irish citizens and organisations, provided that they meet prescribed conditions. This special arrangement reflects the specific context in Northern Ireland.

In order to address the tabled amendments and contributions as fully as I can, I propose to frame my response thematically. I turn first to Amendments 198,199, 204, 212D and 212E, all of which make reference to alleged “foreign donations”. I am afraid that this group of amendments does not find favour with the Government because they seek to remove the rights of overseas electors to make political donations as well as to remove the right to make donations from non-UK nationals who are registered to vote in the UK. Overseas electors are British citizens who have the right to vote; they are important participants in our democracy, as are non-UK nationals on the electoral register. We intend to uphold the long-standing principle that, if you are eligible to vote for a party, you are also eligible to donate to that party. Amendments 198, 199, 204 and 212D would ignore that principle by removing the rights of overseas electors entirely.

I must repudiate the suggestion of the noble Baroness, Lady Hayman of Ullock, that this is all about increasing political donations to the Conservative Party. The Bill delivers the Government’s manifesto commitment to remove the arbitrary 15-year limit on the voting rights of British expatriates, broadening their participation in our democracy.

The issues at stake here are matters of principle. Supporters of many parties back votes for life. The Liberal Democrats pledged in their two most recent manifestos to scrap the 15-year rule. In addition, one of the most passionate and high-profile campaigns for votes for life has been led by Harry Shindler, who lives in Italy and is 100 years old, a World War II veteran and the longest serving member of the Labour Party. I say to the noble Lord, Lord Sikka, that this measure will not open the floodgates to foreign political donations. Registered overseas electors are eligible to make political donations as important participants in our democracy. It is only right that they should be able to donate in the same way as other UK citizens registered on the electoral roll. I say again: the changes within this Bill will simply scrap the arbitrary 15-year limit on these rights.

[Lord Wallace of Saltaire (LD)]

Would that be without any cap on the size of the donation offered? Would the Minister consider that a cap on the size of a donation offered by, for example, Sir Philip Green might be appropriate?

[Earl Howe (Con)]

I will come to the subject of caps on donations in a moment.

On Amendment 212E, the noble Lord, Lord Rennard, recently tabled a Question for Written Answer about the uncommenced provision in the 2009 Act. This provision, Section 10, refers to residence and domicile for income tax purposes as a criterion for permissible political donations. Although a response was issued to him by my noble friend Lord Greenhalgh on 14 March, I hope that it will be helpful if I repeat it briefly for the benefit of the Committee.

The Government have no current plans to bring into force the uncommenced provision, Section 10 of the Political Parties and Elections Act 2009, regarding donations from non-resident donors. There is a very good reason for this: the provision is not workable given that an individual’s tax status is subject to confidentiality. It may therefore be difficult or even impossible for the Electoral Commission, political parties and other campaigners to accurately determine whether a donor meets the test set out in Section 10.

Furthermore, as a matter of principle, taxation is not connected to enfranchisement in the UK. If a British citizen is able to vote in an election for a political party, they should be able to donate to that political party subject to the requirements for transparency on donations. There is clear precedent here. Full-time students are legally exempt from paying council tax but still have the right to vote. Likewise, those who do not pay income tax rightly remain entitled to vote. For these reasons, the Government cannot support these amendments.

The other key theme that this debate has focused on is that of donations made by companies or other entities such as unincorporated associations. I will address Amendments 197, 198, 200, 210, 212 and 212G in the remarks that follow. As I have said before, only those with a legitimate interest in UK elections can make political donations, such as UK-registered companies which are carrying out business in the UK, trade unions and other UK-based entities. There is only a very limited exception to this, whereby, as I indicated earlier, for political parties registered in Northern Ireland permissible donors are a wider category.

The law is already clear that, if a company wants to donate to a party or fund a campaign, it must be a permissible donor. The recipient of a donation is responsible for checking that the donor is eligible; that is to say that it is registered in the UK and carrying out business in the UK. The recipient must also report the relevant donations to the Electoral Commission quarterly, and weekly during election periods. To ensure transparency about party funding, donation reports are published by the Electoral Commission on its online database.

Unincorporated associations are permissible donors only where they carry on business or other activities wholly or mainly in the United Kingdom and where their main office is in the UK. Further to this, any unincorporated associations making political contributions of more than £25,000 in a calendar year must notify the Electoral Commission and are subsequently subject to various reporting requirements relating to their own funding. Members’ associations, many of which are unincorporated associations, are separately regulated as regulated donees and must report on donations and loans that they receive.

Amendment 197 would introduce a new obligation on unincorporated associations to take all reasonable steps to check whether donations they receive intended for political purposes come from a permissible donor. At first glance, “all reasonable steps” appears perfectly reasonable. However, this would represent a significant change for unincorporated associations which, as I outlined previously, are already subject to significant reporting requirements. It singles them out from other types of donors and puts them instead closer to the level of political parties in their due diligence obligations. This could mean many voluntary groups and local sports clubs and societies all facing a significant extra due diligence cost simply because they fall into an unlucky category. That does not strike me as fair, and I would be concerned about the possible chilling effect on democratic participation of those groups.

Amendment 198 is an attempt to restrict donations from organisations. As drafted, it would exclude UK-based companies with fewer than five employees from making donations. Furthermore, it is unclear how one would determine who has “significant control” of an unincorporated association, as their governance structures are not regulated in the same way as other legal entities. Although I am sure this was not the intention, it demonstrates quite well the risk of serious unintended consequences if amendments which place restrictions on who can participate in our democracy are made with haste and without consultation. Furthermore, Amendment 198 would make it an offence for an ineligible company to even offer a donation, regardless of whether it is accepted and regardless of whether it was aware the donation it was offering is impermissible. This is unnecessary.

Donations from impermissible donors are already illegal, and it is the political parties and campaign groups receiving the money, the ones which better know and understand this area of law, which are accountable and responsible for checking, returning and reporting impermissible donations. In addition—this point has been highlighted previously—it is an offence for a donor knowingly to facilitate the making of an impermissible donation.

I am grateful to my noble friend Lord Hodgson for his Amendment 210, which would prohibit donations from individuals or companies that hold public contracts with a value equal to or exceeding £100,000. The complexities of procurement frameworks are slightly beyond the scope of this debate, but let me say that, while well-intentioned, it is not clear how this amendment would operate in practice. Seemingly, there is no limitation on a person making a donation to a party prior to entering into a contract with a public body, and it is unclear whether the prohibition extends beyond the lifetime of the contract and, if so, for how long. It is important to note that the existing legislation already provides for publication of donations to political parties, regulated donees and recognised third-party campaigners, therefore enabling any discerning citizen and our free press to scrutinise any large donations.

I also thank the noble Lord, Lord Sikka, for his Amendment 212. As he explained, the intention of this amendment is to prevent shell companies being used to make large donations. Similar concerns on source of donations underpin Amendment 200 and the substantial Amendment 212G from the noble Lords, Lord Rooker and Lord Butler, which would introduce requirements for registered parties to carry out risk assessments and due diligence checks on donations.

However, as I have already outlined, there are strict rules requiring companies making donations to be incorporated and carrying out business in the UK. Existing rules also prohibit circumventing the rules through proxy donors. That is on top of a legal requirement for political parties and other recipients to conduct permissibility checks and report to the Electoral Commission.

The principle of strengthening the system to provide greater levels of assurance on the sources of donations to ensure they are permissible and legitimate is important. We take seriously the risk of donors seeking to evade the rules. Indeed, the Government recently set out their final position on the reforms to the corporate registration framework, ahead of introducing legislation, in the Corporate Transparency and Register Reform White Paper.

The introduction of mandatory identity verification for those incorporating and filing with Companies House will be essential for making information on the companies register more reliable. It will mean that those with the intention of fraudulently misusing the UK corporate registration framework will have their activities traced and challenged. For example, all directors of UK limited companies will be required to verify their identity in order to be registered, and overseas companies will be required to verify the identity of all their directors. This, in combination with a new power for the Companies House registrar to proactively pass on relevant information to law enforcement and other public and regulatory bodies, including the Electoral Commission, will help ensure that any company making political donations is properly trading in the United Kingdom.

However, we do not want to impose disproportionate legal obligations that hinder the ability of parties and other campaigners to generate funds against the cost of carrying out checks on donations to ensure that they come from permissible sources. To do so would risk it not being cost effective for parties to accept smaller donations and therefore exclude some people from being able to participate in our democracy in this way. The current rules are proportionate and achieve this balance.

[Lord Rooker (Lab)]

I am listening carefully to the Minister. Going back, say, a decade before the Government started to tighten up the anti-money laundering rules, companies, accountants, company secretaries and company lawyers all said, “Our professional obligations and institutions require us to do all these checks.” But they were not doing them, hence the Government had to bring in some anti-money laundering rules. Why are political parties any different?

[Earl Howe (Con)]

My Lords, I hope I have already explained how the Government intend to legislate in the future to create greater transparency of companies. As I said at the beginning, all we can do is keep the rules under review. I am suggesting that in this particular area, the balance is about right.

[Lord Stunell (LD)]

I understand that the Government have a point of view on this, but it is clearly in contradiction to that of the Committee on Standards in Public Life, the Electoral Commission and others. Can the Minister expand on his reasoning for rejecting their proposals?

[Earl Howe (Con)]

I will answer the noble Lord’s point about the Committee on Standards in Public Life in a moment, if he will allow. First, I turn to Amendment 200, jointly tabled by the noble Lord, Lord Wallace, and my noble friend Lord Hodgson, which seeks to introduce new restrictions on donations. The amendment seeks to confer additional powers on the Electoral Commission to identify donations that the commission considers to be a risk to national security or that do not meet a “fit and proper test”, to be determined by the Secretary of State.

This is not the commission’s role or area of expertise, and it would therefore be entirely inappropriate to give it this responsibility to assess risks to national security. The commission is simply not equipped to make some of the judgments proposed by this amendment. The commission has said of this proposal that it

“would be a significant change to our current remit and is not a role we are seeking, as the benefits of this proposal over and above the work of the established security agencies are not clear”.

Put simply, countering foreign interference is the responsibility of the Government, the appropriate law enforcement agencies and the intelligence services, not the Electoral Commission.

The Government already work closely with a range of partners, including the Electoral Commission, to maintain the integrity of democratic processes and take the necessary steps to tackle the risk of foreign interference. The cross-government Defending Democracy programme brings together capabilities and expertise from across departments, security and intelligence agencies and other partners to ensure that democracy remains open, vibrant and secure. In support of this, the Government have set out their intention to bring forward separate legislation to counter state threats. This will give our security services and law enforcement agencies the additional tools they need to tackle the evolving and full range of state threats.

The amendment would also require the Electoral Commission to determine whether a donor meets a “fit and proper” test in respect of the integrity and reputation of the person, based on criteria set out by the Secretary of State. It is our view that the rules are already clear about who is a permissible donor. Beyond this, any further judgments about the appropriateness of receiving a particular legal donation are for the recipient of the donation to judge, and for those recipients to justify their decision through scrutiny enabled by the transparency in our system. It should not be for the Electoral Commission to make these judgments on behalf of others.

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[Lord Collins of Highbury (Lab)]

Would the noble Earl acknowledge that trade unions are different? They are highly regulated and the law was changed to ensure that every individual who makes a contribution to a political fund has to approve it. It is contracting in now—a change this Government made without consultation with other parties. So to put trade unions in the category of a millionaire or a corporate company is totally wrong.

[Earl Howe (Con)]

My Lords, I am not casting aspersions on trade unions. I was seeking to suggest that making them a unique case, as the amendment seeks to do—

[Lord Collins of Highbury (Lab)]

I have explained why they are a unique case: you have already changed the law without consultation with any party. You changed the rules, forcing individual trade union members to contract in to their political funds. Their political funds are highly regulated and highly controlled, and were subject to a change in the law—so they are different.

[Earl Howe (Con)]

I do not contradict the noble Lord in any respect as to what he said about trade unions. I say again that I cast no aspersions on trade unions or their practices at all. I am simply saying that it seems unfair and undemocratic to have this distinction made in the way the noble Baroness seeks to do in her amendment.

Fundraising is a legitimate part of the democratic process. There is no cap on political donations because parties, candidates and other types of campaigner have strict limits on what they can spend on regulated campaign activities during elections.

The other amendment in the noble Baroness’s name—

[Baroness Bennett of Manor Castle (GP)]

Before the Minister goes on to the next amendment, I asked whether he agreed that there should be any limit. If we imagine an election campaign, one party’s spending limit is about £20 million. Does the Minister think it appropriate that one person can donate £20 million for an entire election campaign? What does he think that would do to our democracy?

[Earl Howe (Con)]

My Lords, there are two issues there: one is the question that the noble Baroness seems to be asking, which is whether there should be a limit on donations, and the other is whether there should be a limit on spending. There is a limit on spending in general elections, as she well knows. If she is asking whether I think there should be a cap on donations, I have to say that I do not.

[Baroness Bennett of Manor Castle (GP)]

Sorry, perhaps I was not clear. To put it another way, should there be a maximum percentage that one person can donate to one party’s campaign? If a campaign is funded to the maximum spending limit by one person, it is one person’s campaign. Does the Minister think that would be appropriate?

[Earl Howe (Con)]

That is a highly hypothetical question. I would be happy to give it consideration. For the moment I have to say that the answer is no, but I will reflect on it.

The other amendment in the noble Baroness’s name, Amendment 212B, seeks to place new obligations on donors to report donations to the Electoral Commission where the aggregate total for the year is over £5,000. Yes, there should be transparency around any significant amount of money funding parties and election campaigns, but that does not mean putting the burden on donors. It is for political parties and candidates—the recipients of the donations, who are familiar with the rules—to keep accounting records and report donations over the relevant thresholds to the Electoral Commission. Placing any unnecessarily bureaucratic responsibility on donors such as individual citizens could lead to a chilling effect and discourage people from making donations.

Amendment 212DA, tabled by the noble Lord, Lord Stunell, seeks to cap donations to political parties at £10,000 per calendar year. Perhaps inadvertently, it would require that every penny in a collection box be recorded and attributed to someone, effectively spelling an end to small donations. Even more significantly, the Government cannot, on principle, support caps on donations as this would only lead to taxpayers footing the bill for the inevitable funding shortfall. There is absolutely no public support for expanding the level of public funding already available to political parties. Public funds should be focused on delivering world-class public services and levelling up communities across our country.

The noble Lord asked about the recommendations in the report from the Committee on Standards in Public Life. The Government responded to the report published by the CSPL on regulating election finance in September last year. The Elections Bill already contains measures that closely link to recommendations made in that report, such as the new requirement on political parties to declare their assets and liabilities over £500 on registration, and a restriction of third- party campaigning to UK-based or otherwise eligible campaigners. However, as the Government response stated, the recommendations in the report deserve full consideration, and more work must be done to consider the implications and practicalities, which, I hope the noble Lord will acknowledge, are very considerable.

In conclusion, controls on electoral funding and transparency of electoral funding are a key cornerstone of the UK’s electoral system and contribute to a healthy democracy. UK electoral law sets out a stringent regime of donations controls to ensure that only those with a legitimate interest in UK elections can make political donations and that political donations are transparent. The Government absolutely recognise the risk posed by those who wish to evade the rules on donations. That is why there are existing provisions which explicitly prohibit money being funnelled through permissible donors by impermissible donors, and why it is an offence for donors and campaigners to purposefully evade the rules.

It is right that voters and organisations with a legitimate interest in UK elections be able to donate to political parties, candidates and campaigns. Our democracy is strengthened by people donating to campaigns that they believe in. I am, of course, aware that stories about political donations are never far from the newspapers, but rather than being indicative of a broken system, I firmly believe that this is a sign of the system working. The checks that parties and other campaigners are required to carry out and the reports published by the Electoral Commission allow the press and the public to scrutinise political donations. It is very important to balance the need for parties and other campaigners to generate funds against the cost of actually carrying out checks on donations to ensure they come from permissible sources. The current rules are proportionate and achieve that balance. I hope that, on that basis, noble Lords will feel able not to move their amendments when they are reached, and that the noble Baroness, Lady Hayman, feels able to withdraw her amendment.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for his response to this large group of amendments. In responding to my amendment, he said that there was a Conservative Party manifesto commitment to extend the franchise for overseas electors. My amendment was not about that manifesto commitment; it was about the donations that could then come in through that action. I was not saying that that should not happen. The amendment was specifically related to donations, and that is what I want to come back to now.

I think we can say that we disagree as to whether excessive foreign donations being allowed to come into our politics is a good thing and whether there should be a cap on them. If the Government feel that stopping overseas donations is not an option, in my opinion, we should certainly look at whether we can cap the amounts.

I agree strongly with the first thing the Minister said: the integrity of our electoral law is of the utmost importance. This is why there has been so much concern in this debate over whether that integrity is being undermined by the way in which political donations currently work. I know that the Minister said that the current laws manage this, but it is really disappointing that he does not accept the great concerns that have been raised about how donations can ultimately buy political influence. We must be very careful in our country that we do not tip into the way in which other countries have operated when donations get very large. I just wish that the Government would accept that there is a problem and that it needs to be nipped in the bud. This is an opportunity to legislate for that.

I will finish by saying that a lot of strength of feeling on this issue has been expressed in Committee today. I am sure that we will return to this on Report but, in the meantime, I beg leave to withdraw the amendment.

Elections Bill

Earl Howe Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 28th March 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I too wish the noble Lord, Lord True, a speedy recovery and a quick return to duty, hopefully in time for Report. I am sure that the noble Earl would be pleased by that.

This has been a very good debate, because it has focused on broader issues of principle which we need to probe the Government on. The noble Lord, Lord Wallace, is absolutely right, as we have said at a number of stages, that this Bill represents missed opportunities. It is not so much what is in it as what is not in it that has been a problem. I am sure that the amendments which we have tabled will be considered. If they are not in this legislation, we will return to these broader issues of principle. The one thing that we would have all hoped for in terms of that right to vote is clarity, which we do not get here for all kinds of reasons, not least legacy reasons. Noble Lords have spoken about the complications that we will now face which we had not faced previously, not least that we will have some EU citizens with the right to vote and some without the right to vote, based on when they arrived—an arbitrary date as far as they are concerned.

Of course, the principle that we have sought to highlight in our amendment is what sort of qualification would make sense, would be clear and would be easily understood. We bandy terms such as “no taxation without representation” around, but lots of people who should be perfectly entitled to vote do not pay tax, particularly council tax. Residency is an important principle and perhaps the missed opportunity that this Bill could have addressed more properly, not least because of that legacy. I am not arguing at all for a change in what happened in the Brexit vote. We have left the EU. However, there is a legacy that we must consider there, particularly on people who have made their home here.

I must declare an interest, not least because in my household, with every general election that comes around, we are denied the right to vote. I wish we could vote but we cannot. My husband has lived here for 27 years; he has been a taxpayer, a national insurance payer and a council tax payer. He is a member of the Labour Party, has campaigned for candidates and has voted in every local election that he has been permitted to. The legacy of that will continue. The complication is that it will not apply to other EU citizens who establish the right of residency, who work here and who pay tax here. After a certain date they will not have that right to vote. It causes unnecessary complication.

Throughout this Bill I have readily agreed with the noble Lord, Lord Hodgson, particularly on citizenship education—and by the way, citizenship education should not be limited to citizens of the United Kingdom. The rights and responsibilities of living in this country should be understood by all who live in this country, and we would create a much safer society if we undertook that responsibility. That is why we should consider a right to vote based on the clear principle of residency. Maybe we will not have the opportunity in this Bill. The noble Lord, Lord Hodgson, said that people who just pop over here should not have the right to vote. However, because of our legacy as an empire and our legacy in terms of the Commonwealth, it is a bit ironic that a student from Australia on an overseas experience visa can land in this country and get the right to vote, but my husband, who has been here for 27 years and paid tax, does not. It does not really make sense.

This is, sadly, a missed opportunity. Amendment 156, in the name of the noble Baroness, Lady Suttie, and my noble friend, deals with precisely that issue: instead of clarity we end up with confusion, with some people having the right to vote and others not, but both having the right of residency and to work and pay tax and national insurance. This country will have to consider that at some stage, if not now. I hope the Minister will understand why we have tabled our amendment. I agree with the noble Lord, Lord Wallace, that this is a missed opportunity. I am sure none of these amendments will be agreed to, but I hope that the principle we are trying to establish will be considered in the future.

[Earl Howe (Con)]

My Lords, I begin by conveying the regret of my noble friend Lord True that he is unable to be in his place today because of illness. As a result of his indisposition, the Committee finds itself with a deputy Minister in the shape of me. That is a privilege for me, but I am only glad that I am so ably supported by my noble friend Lady Scott in this endeavour.

My Lords, this group of amendments deals from various perspectives with the voting franchise in the context of UK national elections. I hope that I can be of help to noble Lords in setting out the Government’s approach to this issue and the logic that lies behind it. I was grateful to my noble friend Lord Hodgson for what he said in connection with Amendment 152, which I shall begin with.

The purpose of Amendment 152 is to require the Government to allow EU citizens to vote in UK parliamentary elections. It may be helpful if I explain our policy position on this. Our policy has always been that after our exit from the EU there should not be a continued automatic right to vote and stand in local elections solely by virtue of being an EU citizen. The provisions in this Bill are based on two main planks: first, to respect the existing rights of those who chose to make their homes in the UK before the end of the implementation period; secondly, to look to retain rights on a bilateral basis where possible.

Amendment 152 would extend the parliamentary franchise to EU citizens where no such rights previously existed. In a similar vein, Amendment 156 seeks to allow EU citizens to continue to vote and stand in local elections in Northern Ireland. Those who are nationals of an EU member state have never been able to vote in UK parliamentary elections by virtue of their EU citizenship. If an EU citizen becomes a British citizen, they will be eligible for the parliamentary franchise from that point.

The Government stand by their commitment to EU citizens resident before EU exit, and the Bill ensures that any EU citizen who was a resident before the end of the transition period on 31 December 2020 and who has retained lawful immigration status will retain their voting and candidacy rights in England and Northern Ireland. This goes beyond our obligations in the withdrawal agreement. EU citizens who arrived after the end of the transition period will move to a position whereby local voting and candidacy rights rest on the principle of a mutual grant of rights through voting and candidacy rights agreements with individual EU member states.

On Amendment 156, the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Dodds, referred to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. As was rightly said, both those commissions have sought clarification on EU voting and candidacy rights in relation to the Northern Ireland protocol. The UK Government’s position is very clear and has been explained to both commissions. Removing voting and candidacy rights from EU citizens arriving in Northern Ireland after the implementation date does not run counter to article 2 of the Northern Ireland protocol.

Article 22 of the Treaty on the Functioning of the European Union confers a right to vote and stand as a candidate in municipal elections only in respect of EU nationals who are resident in another member state, having exercised their rights of free movement and residence. As the UK is no longer a member state, EU citizens self-evidently no longer enjoy the right to reside here, so the ancillary article 22 right to vote and participate in municipal elections is no longer applicable to it in this context. This is entirely consistent with part 2 of the withdrawal agreement, “Citizens’ rights”. I hope that is helpful.

I submit to your Lordships that the Government’s approach is a sensible and fair one, whereby established rights are recognised while moving to new bilateral agreements with individual nation states in the EU. I am afraid, therefore, that the Government cannot accept either of these amendments.

Amendment 155 is intended to extend the parliamentary franchise to foreign nationals with certain types of immigration status in the UK. The right to choose the next UK Government is rightly restricted to British citizens and those with the closest historical links to our country. In this respect, the UK is in line with international norms. Citizenship is the normal criterion for participating in national elections in most democracies, including the UK.

Amendment 155A in the name of the noble Lord, Lord Shipley, proposes to enfranchise all who pay council tax in the relevant local authority area. Taxation has never been the basis for representation in the UK in modern times. There is a long-standing principle in the UK, as originally recommended by the Committee on Standards in Public Life in 1998, that those who do not pay income tax, such as those earning less than the tax-free personal allowance, rightly remain entitled to vote. Similarly, full-time students are legally exempt from paying council tax but still have the right to vote in local elections. So, I submit that that connection between taxation and voting does not exist. The Government hold to that principle and therefore cannot support Amendment 155A.

The noble Baroness, Lady Bennett, asked me a number of questions. I will arrange for a letter to be sent to her, but I will comment on her point about credit scoring and being on the electoral roll. The noble Baroness is, of course, not wrong in pointing out that credit reference agencies use the electoral roll to enable lenders and other service providers to confirm someone’s identity. However, it is true to say that lenders look at the entirety of the information on a person’s credit side, as well as other factors, to decide whether to lend to somebody. Lenders and other providers of financial services can ask for other forms of identity and confirmation.

The noble Baroness also asked whether we were taking steps to inform local authorities about the measures being taken. The Government are very conscious of the competing priorities that local authorities have and, particularly, electoral registration offices, both in relation to their business as usual activity and in the new activity that will be conferred by the Elections Bill. We are committed to working closely with the electoral community throughout the development of secondary legislation and implementation planning. We will commit to funding all new burdens incurred by EROs as a result of implementing this policy, as is customary.

--- Later in debate ---

[Baroness Meacher (CB)]

Before the Minister sits down, he rightly said that taxation has not historically been used as a justification for the right to vote, but have the Government actually looked at it? In the context of a Bill that will supposedly rationalise and make sense out of our electoral system, have the Government looked at the idea that taxation would be a good, sensible rationale for the right to vote—at least at local elections, where it would be a lot more straightforward than national elections?

[Earl Howe (Con)]

My Lords, I understand where the noble Baroness is on this. I think one has to distinguish national elections from local elections, and the rules do so in respect of the various categories of individuals who live in this country. To answer her question directly: the Government have looked at this issue and we do not believe that a change is warranted. As I say, we do not deny the vote to those who happen not to be earning. Equally, we do not grant the vote, in general elections, to foreign nationals who happen to pay council tax. I think there are good reasons for that.

[Lord Shipley (LD)]

Before the Minister sits down, can I clarify what he has said about liability for payment? My Amendment 155A relates to the liability to pay council tax. Where people are excused, they might otherwise be liable to pay council tax but, because of government legislation, they have been excused the need to do so. I make the point that although I planned this as a probing amendment, I now realise we have a much bigger issue to address, and we will need to discuss this further on Report.

[Baroness Deech (CB)]

My Lords, may I point out one other anomaly? I imagine everyone in this House pays tax, and yet we do not have the vote. I think that is really rather unfair and hope to see that rectified.

[Earl Howe]

The noble Baroness, Lady Deech, is, of course, quite correct and we will be looking at the question of voting rights for noble Lords in a subsequent group of amendments.

[Lord Wallace of Saltaire (LD)]

My Lords, this has been a very useful debate, which has yet again exposed how unco-ordinated and ill thought through this Bill is. I strongly agree with what the Minister said: local elections are different from national elections. Indeed, in the late-night debate we had last week on overseas voting, it was pointed out that overseas electors are allowed to vote in our national elections but not in our local elections. If there is a good, rational argument for that, then there is an equally strong argument why long-term residents in Britain should be allowed to vote in local elections but not in national elections. If one were to think these things through, and clearly the Government have not, we would be moving in that sort of direction.

Similarly, if we had automatic voter registration, the complexities of residents and non-residents would be clearer. Incidentally, the logic that says overseas electors are not allowed to vote in local elections because they no longer have any connection with the local area goes completely against the logic that they should be allocated to constituencies, which they have lost touch with over the decades since they were in Britain. That is why I put down the amendment on the creation of overseas constituencies, but that has not been thought through either.

We all understand, as someone said to me at the weekend, that the Bill is driven by staff in No. 10 who are above all concerned with increasing the chances that the Conservatives win the next election. One of the strongest arguments for prioritising overseas voter registration over other categories is that they are thought to be more likely to vote Conservative.

[Earl Howe (Con)]

I am grateful to the noble Lord for allowing me to intervene. As I understood it, it was official Liberal Democrat party policy to scrap the 15-year rule that has existed up to now on overseas voters. Can he confirm that that is the case, because that is what the Bill does.

[Lord Wallace of Saltaire (LD)]

Yes, and to create overseas constituencies. I am looking at the noble Lord, Lord Altrincham, who was deeply shocked to be told by the noble Lord, Lord True, in a meeting a few weeks ago when he recommended the creation of overseas constituencies on the French model that that was Liberal Democrat policy. I hope he has now recovered from the shock.

There are tremendous problems with the Bill and the failure to connect all these dimensions. We will come in the sixth group to one of the other reasons why the Conservatives want to push ahead with extending the rights to overseas voting without thinking through the other dimensions of it, which the Liberal Democrats have thought through—the expectation that, once overseas voters are on register, they will be able to increase the systemic advantages—

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, we talk about piecemeal reform, and changes to this House have not necessarily been a result of legislative change or even reform. I have mentioned in previous debates the excellent book by Antonia Fraser about the debate on the Great Reform Act 1832. What I found most fascinating was that most Members of the House of Commons were sons of aristocrats and were put there by their fathers to have proper training to come into the House of Lords. Of course that was in the days when the powers of this House were great, as noble Lords have mentioned.

What recently shocked me even more—and I have cited this too—were the diaries of “Chips” Channon, who, when he was writing pre-war, leading up to the 1938 Munich debacle, mentioned that most of his friends in the House of Commons were sons of aristocrats who eventually ended up in this House. I hope things have changed. Constitutionally, things have radically changed, quite rightly, in the powers of this House, which can no longer challenge the democratic mandate of the House of Commons. The question is not simply about whether we are here for life or not; it is about what we do here. Even where we have particular circumstances of power, I am one of those people who would not use it to challenge the democratically elected House of Commons.

My noble friend made a very powerful case, and the point that struck me was that not many people in the public out there are aware that we have not got the vote. I remember campaigning in the 2017 election and a young, radical activist stopped me and asked if I had voted yet. When I explained I could not vote for Jeremy Corbyn, she nearly issued an internal disciplinary notice. Once I had explained, I was eventually forgiven. But I think it is a point worth making that most people assume that everyone in this country has a free and fair democratic right to vote, and it just seems ridiculous that we do not.

[Earl Howe (Con)]

My Lords, this amendment from the noble Lord, Lord Dubs, who is joined on the Marshalled List by my noble friend Lord Naseby, brings us to a topic on which each of them has tested government policy on a number of occasions in the past, including, as I recall and as the noble Lord, Lord Dubs, mentioned, through my noble friend’s Private Member’s Bill in 2019. On the latter occasion, my noble friend Lord Young of Cookham set out the Government’s response, and I therefore hope it will not come as a shock to the noble Lord, Lord Dubs, that my response today bears an uncanny resemblance to the one given to the House previously.

I understand and respect the case that noble Lords have articulated on this issue. However, I am afraid it is not a case I can accept, and the reason is clear and straightforward and was well articulated by my noble friend Lord Cormack. Noble Lords will be aware that although, as the noble Lord, Lord Collins, rightly said, the role of this House has changed over time, our place in Parliament still gives us a position of influence not held by other citizens. My noble friend Lord Sherbourne asked what the downside would be of accepting the amendment. Enfranchising noble Lords to vote in general elections would give Peers two ways of being represented in Parliament. Members of this House have an opportunity to debate and vote on legislation. To provide a vote for Peers in UK parliamentary elections would undermine the principle that all citizens are equally represented in politics.

[Baroness Jones of Moulsecoomb (GP)]

Is that not true of MPs? Why should they be allowed to vote? They have two grabs.

[Earl Howe (Con)]

When Parliament is prorogued for a general election, MPs cease to be Members of Parliament. They therefore become ordinary voters, if I can put it that way.

In our democracy, everyone should have a voice, but the Government’s view is that Peers who are Members of this House have that by virtue of their participation in this Chamber. That principle has been upheld for more than 300 years, including by the courts. It has not altered over successive Governments: in fact, in the debate on his Private Member’s Bill nearly three years ago, my noble friend Lord Young reminded the House that, as recently as 1999, Section 3 of the House of Lords Act explicitly enfranchised hereditary Peers who are not Members of this House and disfranchised Peers who are.

The noble Baroness, Lady Quin, asked whether Peers who have retired from this House have the right to vote. My understanding is that they do, because they ceased to be parliamentary Peers at that point.

The noble Lord, Lord Redesdale, asked about the cost of taking parliamentary Peers off the register. I doubt that that cost has been computed by anybody—of course, there must be a cost—but it is a very considerable privilege that we as Peers have, and I for one would argue that it is not unreasonable for that privilege to carry a public cost.

[Lord Cormack (Con)]

Of course, we are on the register and can vote in every other election, including local government elections, referenda—the lot.

[Earl Howe (Con)]

I think the point made by the noble Lord, Lord Redesdale, was that a distinction must be made on the register between different types of election, and that that carries a cost; he can correct me if I am wrong in assuming that.

This House is a respected voice that adds depth and, I hope, wisdom to our legislative process. It allows us, as its Members, full participation in the life of the nation. The Government therefore have considerable reservations about this proposed new clause, and I ask the noble Lord, Lord Dubs, to withdraw his amendment.

[Lord Dubs (Lab)]

My Lords, I never thought that so many different sorts of opinions would come out of the woodwork. It has been absolutely fascinating. The arguments have been somewhat different from the last two or three times we debated this issue. I just want to comment on them briefly.

As regards the voting list—this is a technical point—my understand is that there is no obvious way in which when we register we can declare that we are Members of this House. Somehow, in some local authorities, the polling clerks are aware of it but, in others, they are not. I am always mystified by that; it is not clear. I have known of people who have not been debarred from voting and could have gone to vote—they did not do so but they could have—simply because it was not obvious to the polling clerks that they were Members of this House.

On my noble friend Lady Quin’s comment about Members of Parliament, again, it is purely a technicality that they cease to be Members of Parliament during the period of an election campaign. Nobody knows about it except for a few nerds like us—sorry, nerds like me. It just means that they are technically not MPs. However, for all practical purposes, of course they are; they still get representations made to them, constituency casework and so on. Even during the election campaign, they cannot just say, “No, I’m not prepared to do it.”

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[Lord Collins of Highbury (Lab)]

My Lords, I have some sympathy with the points made, but I wish this amendment could have been debated in the group of amendments we had on the entitlement to vote, because I do not really want to move away from the principle I articulated before. Not everyone wants to lose the status of their nationality. For example, my husband does not want to give up his Spanish citizenship, which he may have to do. A number of European countries have started to change but they did not allow dual nationality. A lot of people could lie about that, but he does not want to give it up. I certainly do not want to give up my nationality.

When we were in the EU, we were in the comfortable position of being, as we used to describe ourselves, EU citizens; we could locate and meet our families in our respective countries with ease. Now that has changed and we accept that, but I do not quite understand why we do not accept that there is a settled status, where someone has lived in the country for 27 years, paid tax, national insurance and everything else—they have taken the responsibility of a citizenship—but for one reason or another do not want to take formal citizenship, and why that should preclude them from having the right to vote.

It is crazy that, as I mentioned, an Australian student who comes over for their OE can immediately apply for the right to vote. I would rather the debate focused on what entitles somebody to vote. We have talked about taxation, we have talked about responsibility, and I say that clear levels of residence should establish some basic rights, so that we treat people who live here equally, and when they contribute to the success of our country we should acknowledge that.

I come back to what the noble Lord, Lord Green, said. One of the issues his amendment ought to probe and cause us to think about is: what is a British citizen? He says that British nationals (overseas) are not included. We can make commitments suddenly; for example, we made a commitment to Hong Kong citizens who are BNOs because of the breach of an international agreement. I have no doubt that in future, as we have done in the past, we will want to protect our legacy. The noble Lord, Lord Desai, spoke about the legacy of British Empire, which of course we cannot ignore, and things have changed.

I welcome the fact that the noble Lord, Lord Green, has tabled this amendment but we need to consider it in the light of all the amendments we have had on the right to vote and what the qualifications are. I do not think we should ignore residency.

[Earl Howe (Con)]

My Lords, with Amendment 154 we return to the franchise. The purpose of the amendment, as the noble Lord, Lord Green, explained, is to require the Government to confine the voting rights of Commonwealth citizens to citizens of countries that grant British citizens the right to vote in their general elections. The effect of this would be to limit the franchise to Commonwealth citizens from countries where British citizens are entitled to vote in general elections.

I take this amendment seriously but perhaps I could clarify the position as it relates to Commonwealth citizens. First, it is important for me to point out to the noble Lord, Lord Wallace, in particular, that there is no blanket voting right in this country for Commonwealth citizens. The right to vote applies only to qualifying Commonwealth citizens: those who have leave to remain in this country or have such status that they do not require such leave. The noble Lord, Lord Green, asked me to expand on that definition. The definition of “Commonwealth citizen” is a broad term and is not limited to citizens from Commonwealth countries listed in Schedule 3 to the British Nationality Act 1981. It applies equally to other types of British nationality defined in Section 37 of that Act. This includes Hong Kong British nationals (overseas), British overseas citizens and British Dependent Territories citizens. It also includes British Overseas Territories citizens.

I acknowledge that the approach adopted in relation to Commonwealth citizens is different from that that we take towards other categories of foreign nationals. However, there are sound and well-rooted reasons for that difference. The rights of Commonwealth citizens to vote are long standing and reflect the historic connections and well-established links with the Commonwealth of this country and Her Majesty the Queen, as the noble Lord, Lord Desai, outlined.

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[Earl Howe (Con)]

The noble Lord, Lord Desai, is once again perfectly right.

Successive Governments and Parliaments since 1981 have concluded that the existing voting rights of Commonwealth citizens should not be disturbed, and it is on this basis that the Commonwealth citizens are granted the right to vote in UK elections.

I have enormous personal sympathy with the noble Lord, Lord Collins, and his husband in the situation he has outlined. The best answer I can give him is to refer back to the speech of the noble Lord, Lord Desai. As a country, we have found ourselves at various times in our history as members of different families of nations; for example, the family of EU member states and the family of Commonwealth nations. It is therefore perhaps unsurprising that the links and historic traditions, and hence entitlements, relating to each such family are different from one another. Our formal ties with the EU have been severed. Our ties with the Commonwealth endure. The weight of history plays a very considerable part in all sorts of aspects of our national life—

[Lord Collins of Highbury (Lab)]

The noble Earl says that our ties with the Commonwealth endure. I agree with the sentiment but the reality, as the noble Lord, Lord Desai, said, is that the relationship with Commonwealth countries has changed fundamentally, and is continuing to change. As Prince William said yesterday in his press statement—I have forgotten the exact words but it seemed relevant to me—the relations endure but Commonwealth countries change. The fact is that we have not changed what we define. With all these different British nationals as a consequence of our imperial legacy, we find it very difficult to define citizenship in that regard. That is why I come back to this fundamental point. I am not arguing that my husband has a special right as a former EU citizen. I am saying that someone who has lived here for 27 years, and paid tax and national insurance, should have the right to vote. It is residence that I am arguing for, which is what a number of noble Lords have been making the case for.

[Earl Howe (Con)]

My Lords, I understand that. It is clear that this is an argument that runs very deep. We may or may not return to it on Report but if there is anything else that I can add to the remarks that I have made, I will ensure that a letter is sent to all noble Lords who have taken part in this short debate.

In short, it is for reasons of history and because of the well-established ties that we in this country have with the family of nations that we call the Commonwealth that the Government have no plans to change the voting rights of Commonwealth citizens. Therefore, I am afraid we cannot support this amendment.

[Lord Green of Deddington (CB)]

My Lords, it has been a very interesting debate. I welcome the response of the noble Lord, Lord Wallace, on behalf of the Liberal Democrats and note the careful response from the Labour Front Bench. There are wider issues here, and I hope that both opposition parties will look at this and that the Government will, too.

The point that the noble Baroness, Lady Neville-Rolfe, made is a very important one. This loose end, to call it that, rather devalues the worth of UK/British citizenship. We need to sort it; this Bill is a very simple one, this could be a very simple amendment, and this is an opportunity to support it. I intend to bring it back at Report, and I hope that there will be a different reception to it. Meanwhile, I am happy to withdraw it.

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Moved by

[Earl Howe]

157: Schedule 8, page 151, line 5, leave out “or Northern Ireland”
Member’s explanatory statement
The reference in paragraph 12(4)(b) of Schedule 8 to a member of a local authority in Northern Ireland is unnecessary in view of how the qualification requirements in section 3(1) of the Local Government Act (Northern Ireland) 1972 operate.

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Moved by

[Earl Howe]

162: Clause 30, page 42, line 23, after “office” insert “or a relevant Scottish elective office”
Member’s explanatory statement
This amendment ensures that references to a candidate in clause 30 continue to include a candidate at an election for the office of member of the Scottish Parliament or member of a Scottish local authority, notwithstanding the amendments in Lord True’s name to clause 35 which narrow the general definition of “relevant elective office”.

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Moved by

[Earl Howe]

166: Clause 31, page 44, line 2, after “office” insert “or a relevant Scottish elective office”
Member’s explanatory statement
This amendment ensures that references in clause 31 to the holder of a relevant elective office continue to include the holder of the office of member of the Scottish Parliament or member of a Scottish local authority, notwithstanding the amendments in Lord True’s name to clause 35 which narrow the general definition of “relevant elective office”.

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Moved by

[Earl Howe]

169: Clause 32, page 45, line 37, after “office” insert “or a relevant Scottish elective office”
Member’s explanatory statement
This amendment ensures that “relevant election”, in clause 32, continues to include an election for the office of member of the Scottish Parliament or member of a Scottish local authority, notwithstanding the amendments in Lord True’s name to clause 35 which narrow the general definition of “relevant elective office”.

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Moved by

[Earl Howe]

173: Clause 35, page 46, line 24, leave out paragraph (b)
Member’s explanatory statement
This amendment removes member of the Scottish Parliament from the definition of “relevant elective office” for Part 5.

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Moved by

[Earl Howe]

177: Schedule 10, page 160, line 33, leave out paragraph 4
Member’s explanatory statement
This amendment omits amendments currently made by the Bill to sections 35 and 36 of the Local Government (Scotland) Act 1973.

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Moved by

[Earl Howe]

179: Clause 38, page 48, line 1, after “office” insert “or a relevant Scottish elective office”
Member’s explanatory statement
This amendment ensures that the definition of “candidate” continues to include a candidate at an election for the office of member of the Scottish Parliament or member of a Scottish local authority.

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Moved by

[Earl Howe]

181: Clause 40, page 49, line 25, leave out subsection (2) and insert—
“(2) The first condition is that the sole or primary purpose that the electronic material can reasonably be regarded as intended to achieve is a purpose within section 41.”Member’s explanatory statement
This amendment provides that the condition in clause 40(2) is met only where the sole or primary purpose that the electronic material can reasonably be regarded as intended to achieve is a purpose within clause 41.

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Moved by

[Earl Howe]

184: Clause 41, page 50, line 1, after “future candidates” insert “, in their capacity as such,”
Member’s explanatory statement
This amendment modifies the purpose in clause 41(2)(c) so that it refers to influencing the public, or any section of the public, to give support to or withhold support from a relevant candidate or future candidate only in their capacity as such a candidate or future candidate.

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Moved by

[Earl Howe]

189: Clause 42, page 51, line 14, at end insert—
“(4) The third condition is that neither the promoter of the material, nor the person on behalf of whom the material is published, has paid for the material to be published as an advertisement.(5) Subsections (4) to (6) of section 40 apply in relation to subsection (4) as they apply in relation to subsection (3) of that section.”Member’s explanatory statement
This amendment provides that clause 42 does not apply in relation to electronic material where the promoter of the material or the person on behalf of whom the material is published has paid for the material to be published as an advertisement.

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Moved by

[Earl Howe]

190: Clause 45, page 53, line 20, leave out “by a person (“A”)”
Member’s explanatory statement
This amendment, and the other amendments to clause 45 in the name of Lord True, clarify that the republication exception in clause 45 can apply where both the original publication and the later republication are carried out by the same person.

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Moved by

[Earl Howe]

195: Clause 46, page 54, line 25, at end insert—
“(4A) It is a defence for a person charged with an offence under subsection (1) in relation to the republication of electronic material to prove that—(a) the electronic material had previously been published,(b) the person reasonably believed that when it was previously published—(i) section 39 applied to it, and(ii) it was published in compliance with that section, and(c) it was not materially altered when it was republished.(4B) In subsection (4A)(c) the reference to electronic material not being materially altered includes a reference to the electronic material retaining—(a) the information within section 39(3), or(b) the access to such information,as a result of which the person reasonably believed its previous publication complied with section 39.”Member’s explanatory statement
This amendment inserts an additional defence into clause 46 in relation to the republication of electronic material. The defence applies where material has previously been published, the person charged with the offence reasonably believes that, at the time of the original publication, clause 39 applied to the material and it was published in compliance with that section and the material was not materially altered when it was republished.

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Moved by

[Earl Howe]

196: Clause 48, page 55, line 32, after “(referendums)” insert “where the referendum in question is a referendum to which Part 7 of PPERA applies and the electronic material is published during the referendum period (within the meaning of that Part) for that referendum”
Member’s explanatory statement
This amendment provides that the Electoral Commission is able to enforce the offence in clause 46(1) in relation to the publication of electronic material which can reasonably be regarded as intended to achieve a purpose within clause 41(9)(referendums) only in relation to a referendum to which Part 7 of the Political Parties, Elections and Referendums Act 2000 applies and where the material is published during the relevant referendum period.

P&O Ferries

Earl Howe Excerpts

Wednesday 23rd March 2022 Lords Chamber

[Lord Sterling of Plaistow (Con)]

My Lords, I apologise that I was not here yesterday: my wife had a very bad fall and fractured her head, so we spent two days in the hospital, but I wanted to be here today. I hope noble Lords will bear with me.

The most important thing for everybody in this House —or any house, individuals or otherwise—is your reputation. I am today wearing the tie of the Peninsular and Oriental Steam Navigation Company, which goes back nearly 200 years. My predecessor served at the Battle of Trafalgar and, as a matter of interest, my noble friend Lord Lamont is a direct descendant of the first chairman, who was in the Shetland Islands.

What I want to say is this—

[Earl Howe (Con)]

My Lords, I do not want to be ungracious to my noble friend, but if he could reach his question, that would be helpful.

[Lord Sterling of Plaistow (Con)]

I will issue a statement separately from this, but I wanted to ask this. People from all over the world are deeply upset and concerned about the reputation of a company that has been one of the greatest companies, and of which I have had the honour to be a part for nearly 40-odd years. I stood down in 2005—