Higher Education (Freedom of Speech) Bill

Debate between Earl Howe and Lord Mann

Committee stage
Wednesday 2nd November 2022 Grand Committee

[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.

Higher Education (Freedom of Speech) Bill

Debate between Earl Howe and Lord Mann

Committee stage
Monday 31st October 2022 Grand Committee

[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.