Higher Education (Freedom of Speech) Bill (Eleventh sitting)

Debate between Emma Hardy and John McDonnell

Wednesday 22nd September 2021 Public Bill Committees

[Emma Hardy]

The University of Cambridge submitted:

“A range of sanctions would allow for interventions which are more proportionate to the facts of individual cases, recognizing that some cases are more likely than others to constitute evidence of repeat or serious breaches of duty.”

Professor Kathleen Stock said:

“This legislation says that there should be a positive duty to promote academic culture. That could be a very positive, forward-looking initiative; it does not have to be heavy-handed, although obviously it has the capacity to be punitive. But there is also the dimension of encouraging universities to examine what the value is of academic freedom”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 7, Q6.]

As my hon. Friend the Member for Brighton, Kemptown mentioned: lots of witnesses said that we do not have to move straight to fines; there can be a range of sanctions.

A more concrete example of a good approach to graduated sanctions is that of the Advertising Standards Authority. It focuses on guidance before punitive action. Its website states:

“The vast majority of advertisers and broadcasters agree to follow ASA rulings and for those that are having difficulty doing so, rather than punish them, our aim is to work with them to help them stick to the Advertising Codes. However, for the small minority of advertisers who are either unable or unwilling to work with us, some of the sanctions at our disposal can have negative consequences.”

That is one example of a regulator encouraging and supporting before moving to punitive sanctions. The amendment, too, is saying, “Let’s have a look at a range of options.”

Regarding the appeals process, it is slightly bonkers—my right hon. Friend the Member for Hayes and Harlington pointed this out to me the other day, which made me chuckle—that we have more rights to appeal a parking ticket than a decision of the director for freedom of speech. If people get a parking ticket, they can make an informal appeal to the council, giving evidence and an argument as to why the ticket should not have been issued, but with the director for free speech there is no appeals process. That is slightly silly.

Most systems and organisations, such as Ofsted or the OIA, allow some form of appeals process—some way of going back to them to say, “I would like to appeal the decision. I don’t think you saw this piece of evidence.” Generally, with most regulators, an attempt at some form of appeal is involved, bringing it into line with existing practice. The amendments are sensible and straightforward. They would give people the right to appeal and provide for graduated sanctions, and I hope the Minister will accept them.

[John McDonnell (Hayes and Harlington) (Lab)]

New clause 8 is a simple request to the Minister to issue some form of guidance about the relevant route for appeals before the legislation comes into force. I think it is quite significant. We are introducing a complex system of complaints and processes, as well as the potential for civil action. It is not much to ask that we get absolute clarity, so that those who will implement the legislation or be the victims of it know how the complaints system will work. I would welcome a commitment from the Minister that we could take to the Floor of the House to reassure people.

With regard to the issue about the rush to sanction, my only comment is that we are dealing with a pretty contentious area, where an element of mediation might resolve most of the problems. Previous progressive equalities legislation that some people have initially opposed has not involved heavy sanctions. In the main, the results have been resolution and progress through a process of education, engagement, mediation and resolution. I think the rush towards sanction will undermine the ability to mediate.

--- Later in debate ---

[John McDonnell]

I caution Government Members. There have been reports recently of a pattern of behaviour by Government of making appointments of, in effect, members of and donors to the Tory party—some have described them as cronies. That evidences, I think, an attitude in some parts of Government that overrides the very principles that my hon. Friend refers to and, to be honest, the traditional practice that we have come to expect of Governments. We are nearing a limit on that.

[Emma Hardy]

It is worth pointing out that we have no written constitution in this country. Everything we have is based on practice and tradition, because of the lack of a written constitution. Our university sector has always acted as a counterbalance to any Government of the day in offering criticism and scrutiny, forming another counterweight in our democracy. Any attempt to undermine that by politicising it through a political appointment exercising the powers in the Bill should concern each and every one of us. Governments and parties change and, as I said before and was agreed with, the people sitting on the Government Benches would be very concerned if the proposals in the Bill were those of the Labour party and we were wishing to exercise the kind of political control over the universities of the day that the Government do with this Bill.

[John McDonnell]

To follow up on that point, we and a large number of organisations and individuals will be extremely interested in the appointment of this individual. If there is any whiff of a political appointment, it will completely undermine the Bill and the Government’s intentions, whether we agree with them or not—I caution them on that point. That is why building additional safeguards into the Bill is important.

I have been a strong supporter of the establishment and development of Select Committees. As shadow Chancellor, I argued for a greater role for Select Committees in the formal appointment of the Governor of the Bank of England and others. If we cannot secure the role of the Select Committee in the confirmation of an appointment, it would be valuable to hear the Minister’s views on a pre-appointment hearing. As the hon. Member for Ruislip, Northwood and Pinner said, that would at least provide an opportunity for greater scrutiny of the individual and the process.

I caution the Government. There is often an element in a piece of legislation that can unpick the whole of the legislation’s import. I think this is a banana skin waiting to be stood upon if the Government are not careful and do not ensure that the process is above reproach and free from any party political interference. That could poison the well altogether.

Higher Education (Freedom of Speech) Bill (Ninth sitting)

Debate between Emma Hardy and John McDonnell

Monday 20th September 2021 Public Bill Committees

[John McDonnell (Hayes and Harlington) (Lab)]

The same.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

My partner works at the University of Hull on the degree apprenticeship programme.

Higher Education (Freedom of Speech) Bill (Tenth sitting)

Debate between Emma Hardy and John McDonnell

Monday 20th September 2021 Public Bill Committees

[John McDonnell]

There is the process of the tort, the process of the civil actions that will take place and the process of the monetary penalties imposed by the OfS. The courts eventually, after precedents have been set, will arrive at some level of compensation. Unless we can set out a legal tariff early on, it will be up to the courts and anything could happen.

[Emma Hardy]

Maybe I am unfairly anticipating what the Minister will say, but I assume it will involve the words “guidance”, “waiting” and “after the Bill”—perhaps not in that order. Therefore, if this will be looked at in guidance after the Bill in consultation, does my right hon. Friend agree that it should be put in the Bill right now?

[John McDonnell]

Confidence in legislation is secured through engagement, consultation and, where there is disagreement, an understanding to disagree. Then when the Bill is taken to the Floor of the Commons, the confidence of Members has been gained because there has been that thorough consultation. Unless that is done, Members are voting for a pig in a poke. Unless the detail of the regime is set out—in particular, the tariffs and what the maximum will be—how can people vote for this legislation, knowing what its implications are?

To go back to the point that my hon. Friend the Member for Brighton, Kemptown made, let us distinguish between what the courts will do—they will set the level in due course through precedent and so on—and the scheme. The sanctions, the tariffs and the maximum monetary penalties are to be set by the Government. I therefore make the very simple point that when Governments set tariffs in this way, to gain the confidence of the House it is usually best to explain what the tariffs will be.

[Emma Hardy]

Again, to stress the point about consultation, as I was trying to explain previously, if this is not done in consultation with student unions, especially small student unions at smaller higher education institutions, this will bankrupt them. I am sure the Minister does not wish to be the person responsible for the bankruptcy of a number of student unions up and down the country. I therefore advise that the consultation and guidance be done before Members of Parliament get to vote on the final Bill.

[John McDonnell]

It is just the simple approach of talking to student unions and saying, “What effect would this tariff have on you? Would it push you over the edge? Would it bankrupt you? Is this an appropriate sanction? Would it act as a deterrent? Would people appreciate the risk that they are undertaking by non-compliance with the OfS’s requirements on these individual bodies?” Universities and student unions will almost certainly be consulting their insurance providers about the potential risk and the level by which they have to insure themselves to ensure that they, quite properly, exercise their fiduciary duty of protecting their organisation in the light of that risk. How can they do that if they do not know what is coming at them down that tunnel? The light that is coming at them could be a huge train hitting them with a huge fine.

Higher Education (Freedom of Speech) Bill (Eighth sitting)

Debate between Emma Hardy and John McDonnell

Thursday 16th September 2021 Public Bill Committees

[Emma Hardy]

I thank the right hon. Gentleman.

[John McDonnell]

That is an interesting point. I have been in situations where an individual has joined an organisation as an agent provocateur and has undertaken activities in the name of the organisation deliberately to bring about bad odour and destroy its reputation. I do not see any protections in this Bill against someone joining the Muslim society, or whatever, within the organisation, then demanding that an invitation be put out to a fascist, and then the organisation getting caught. It is very difficult to prove that there was some form of vexatious participation. I remember—this is partly related —when the right hon. Member for New Forest East (Dr Lewis) joined the Labour party to infiltrate it and bring bad odour. It happens. I congratulated him on it as a tactic eventually. These things do happen, and my worry is that there is no defence against that in this Bill.

[Emma Hardy]

My right hon. Friend makes an extremely valid point: there is not that protection. I again refer hon. Members to the written evidence. This is not written evidence from some small organisation that does nothing; it is the Free Churches Group of England and Wales. It is a group of higher education institutions.

[Emma Hardy]

That is exactly right. I refer again to the written evidence, which says:

“We are concerned about the drafting of Points (3) and (4) in section A1 of the Bill, repeated later in connection with Students’ Unions. These clauses have to do with the provision or denial of premises and appear to prohibit both the making and the denial of such provision on the basis of ‘ideas, beliefs or views.’…Our advice is that these clauses are ripe for a variety of interpretations or misinterpretations, with unhelpful unintended consequences possible and even likely.”

The Free Churches Group goes on to say:

“Clause 3 (a) as explicated by clause 4 is similar to Section 43 of the Education (No.2) Act 1986, but in a new context.”

That is the point it is making. The submission continues:

“The clause says use of premises cannot be denied on the basis of ideas, beliefs etc. It has, as far as we know, led to no problems so far and that may continue to be the case. However, inserting it into this Bill, with its strengthened requirements, lack of clarity, and temperature-raising highlighting of a very few cases as justification for the Bill, may affect its previously benign record.”

I accept that I was rushed in putting together these amendments—the Clerks were very helpful—and this might not be the exact wording that the Minister wishes to use, but the question of premises and when something can be allowed or not needs to be addressed. We need that reassurance. As I say, these amendments are meant to be not about denying opposition or other people’s point of view, but about just having some respect about where they are held.

That goes back to the point made so eloquently by my right hon. Friend the Member for Hayes and Harlington about some events needing to be done in consultation with other groups and people within the student union body and the higher education system to ensure that such things do not happen.

I do not believe for one moment that any hon. Member in Committee would think it acceptable to hold an anti-Islamic debate in an Islamic prayer room and I do not believe for a moment that the Minister or the Government intended that when drafting the Bill. I am saying, with the helpful intervention of my right hon. Friend, that people could join those groups, they could invite someone to be provocative and they could insist on the debate taking place in particular premises, which would cause incredible upset for many people.

[John McDonnell]

I fear to tread into this, but there are schisms within individual organisations. Anyone who has had any dealings in recent years with the gurdwaras in this country knows that we have had real issues, as we have had in the Christian religion. There have been disputes, debates and so on within different groups in a particular religion, some denying premises to individual groups and that becoming a matter of contest. We are treading into some extremely dangerous territory, if we are not careful. We could be dragged into disputes that result, eventually, in claims in court.

[Emma Hardy]

Absolutely. I state again, referring to the written evidence of the Free Church Group, that it

“affirms the importance of freedom of speech and academic freedom.”

I would not wish this to be interpreted in any way as the group being against free speech—it is not. It is saying that, for the purposes of the Bill, we need to have a look at the question of premises and whether some premises, or some individual rooms within premises, should be in some cases denied to certain groups, out of respect for what those premises are meant to be used for.

When the Minister replies, I hope that she takes the amendment in the spirit in which it is intended, although it is perhaps not perfectly drafted, as I have explained. However, we need to resolve that problem, because we should be mindful of the fact that people have different beliefs and opinions, and we have to show tolerance and respect at all times. All of us in this debate on free speech have said that we want to encourage a climate in which ideas are challenged, but that they should be challenged in a respectful way.

Higher Education (Freedom of Speech) Bill (Sixth sitting)

Debate between Emma Hardy and John McDonnell

Wednesday 15th September 2021 Public Bill Committees

[John McDonnell]

Don’t fall for it!

[Emma Hardy]

As a former teacher who had the statutory national curriculum and regular reviews from Ofsted on the best way to teach x, y and z, there is part of me that reads the right hon. Gentleman’s proposed paragraph (c) and thinks, “Wonderful! Yes, the passion and the ability to teach in the way you want on the subjects you want”. However, as has been alluded to—and this is where we get to the detail of it—there are subjects at university that require things to be taught in a particular way to get through a certain amount of basic knowledge components on that course. It might be suitable for some courses, such as government and politics, where there can be greater freedom, but studying medicine, for example, might need to be more instructive. Therefore, much as in my heart I am with him, in my head I find that, as it stands, it is not quite the right sentiment.