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

Debate between Lord Beamish and Michelle Donelan

Wednesday 22nd September 2021 Public Bill Committees

[Michelle Donelan]

New clauses 5 and 13 seek to provide that a dismissal and breach of the new section A1 duty is specifically to be treated as an automatically unfair dismissal under the Employment Rights Act 1996. New clause 13 further seeks to disapply the two-year qualifying period for unfair dismissal in these cases, removing the limit on the level of compensation that can be awarded and applying provisions allowing claimants to seek interim relief, pending determination of their claim.

Let me be clear that the Bill does not stop employees in higher education from taking their claims to employment tribunals. In doing so, employment tribunals may consider questions of freedom of speech and academic freedom and alleged breaches of the section A1 duty in that context, although the Bill does not give them the jurisdiction to hear freedom of speech cases.

The current two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff.

[Mr Jones]

I am very interested in what the Minister just said. It is clear that an employment tribunal can be held on sex discrimination grounds or on other grounds, but could she point out in present employment law where it states that someone would be able to bring an industrial tribunal on the basis that they were discriminated against because of freedom of speech? I am not aware of such a law.

[Michelle Donelan]

As I said, tribunals cannot take a freedom of speech case per se, but if there were evidence of discrimination on the grounds of freedom of speech in the case that they were taking, that could be heard. I can come back to the right hon. Gentleman with the details of that after the Committee, but I cannot point out the exact line of the legislation on the spot.

[Mr Jones]

As I understand it, an industrial tribunal case could not be taken on the grounds that someone had been dismissed because their freedom of speech had been infringed. That is a problem that came out in the evidence. A tribunal could be brought on the basis of sex discrimination and for other reasons, but if the sole reason for a tribunal was that someone thought they were being dismissed because of their views and that their freedom of speech was being questioned, I am not sure such a tribunal would have jurisdiction over that, given present employment law. If the Minister does not know, I am happy that she writes to the Committee.

[Michelle Donelan]

The point I am trying to make is that an employment tribunal will determine whether a dismissal was fair or unfair, depending on the specific circumstances of the case. Therefore, it may take into account breaches of academic freedom of speech. The Bill does not amend employment law in this regard and we do not think it would be appropriate to make dismissal because of a breach of the new duties an automatic unfair dismissal.

The Bill does, however, give new protections to academic staff, including those who may not have employee status or who have been employed for less than two years. It therefore broadens the scope of the current provision section 43 of the Education (No. 2) Act 1986, to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging, without the risk of losing their post.

The Bill provides new specific routes of redress for those without employee status, including a complaints scheme operated by the Office for Students and a statutory tort. I hope that Members are reassured that the Bill strengthens protections for academic staff and employees. It expands the range of available routes of complainants and ensures that a wide range of individuals are able to secure redress.

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

Debate between Lord Beamish and Michelle Donelan

Wednesday 15th September 2021 Public Bill Committees

[Michelle Donelan]

Amendment 52 seeks to make clear that the duty of higher education providers to take reasonably practicable steps to secure freedom of speech applies in relation to the use of online platforms as well as physical premises. As drafted, section A1(3) requires that providers must take reasonably practicable steps to secure freedom of speech, including by securing that the use of premises is not denied because of the ideas, beliefs and views of an individual or body, and that the terms of the use are not based on such grounds.

Importantly, the provision uses the word “includes”. In other words, the duty in section A1(1) is not limited to what happens on the physical premises. Therefore, the requirement for a provider to take reasonably practicable steps may apply to online events hosted by the provider every bit as much as to physical events held by the provider.

Of course, it is important to be clear that the lawful speech of students, staff, members and visiting speakers in online spaces is covered by the Bill. The Government believe that the Bill as drafted achieves that aim, and I absolutely expect that the new director for freedom of speech and academic freedom will set that out clearly in the guidance in due course. I hope that I have reassured the Committee. However, I also commit to the Committee to keep this under further consideration.

[Mr Kevan Jones (North Durham) (Lab)]

I am concerned that a lot is going to be left to guidance. I want to explore the Minister’s role in ensuring that the commitment that she has given today will actually get into that guidance. If the operation of the Bill is going to be reliant on the guidance, that guidance is going to be very important.

[Michelle Donelan]

I have committed to the Committee today to consider this further as the Bill progresses through the House.

[Mr Jones]

Over the past few years it has increasingly been the case that the bite is found in guidance rather than on the face of the Bill. I am trying to understand what the Minister or the Department’s input will be in terms of framing that guidance, because that is going to be very important in determining whether the Bill works.

[Michelle Donelan]

The right hon. Gentleman can be assured that I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation. It would be impossible for the Bill to detail all of the things that the guidance needs to address.

I now want to turn to amendment 31.

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

Debate between Lord Beamish and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Mr Jones]

[The Minister for Universities (Michelle Donelan)]

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

Debate between Lord Beamish and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Mr Jones]

Q In a previous life, I was a trade union official, and can I just say to you that employers will find very clear ways of not employing people, to get round any type of legislation? It will not be on the basis of your views; it will be for some other reason, so this does not give a great deal of protection for those individuals anyway.

Dr Ahmed: I do not think that the employer—that is, the management of the university—gets up in the morning and thinks, “How am I going to stop free speech? How am I going to fire these people?” They are responding to pressure from what I think is quite a small group of activists within universities. If this legislation has the effect of creating some kind of countervailing pressure, then you are right. Of course it is not going to solve the problem; I have been a trade union official myself and I know something about what these issues are. Of course it is not going to solve the problem, but it will help, because I think it will create pressure in the opposite direction.

[The Minister for Universities (Michelle Donelan)]

Q Dr Ahmed, you have previously discussed a soft censorship approach. Can you explain what that is and the impact that you think it will have or that it is having on universities?

Dr Ahmed: You can distinguish between hard censorship and soft censorship. Hard censorship, in my understanding —the distinction is evident in the written evidence that I submitted—means universities actively suppressing certain kinds of speech by enacting certain kinds of regulation. I think we have seen different examples of that, which I am happy to discuss.

Soft censorship is where there is not any regulation, but people know—people sense it themselves, because they know that if they say this, or they say that, or if they present these views, they will be regarded adversely. If they are a student, they might be ostracised

. It might make difficulties for their academic career. That is the result. Because, as it happens, we have an academy, which, at least in some parts, is predominantly in one part of the political spectrum, the result is that certain kinds of research do not get done and certain kinds of views do not get defended by people who, in their hearts, perhaps, believe in them.

Higher Education (Freedom of Speech) Bill

Debate between Lord Beamish and Michelle Donelan

2nd reading
Monday 12th July 2021 Commons Chamber

[The Minister for Universities (Michelle Donelan)]

We have heard a range of views today, but the House is united in an understanding that free speech is the cornerstone of democracy and a liberal society. That was passionately articulated by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and many others, who shared an endless list of examples of the curtailment of free speech on our campuses.

Disappointingly, though, there was disagreement from those on the Opposition Benches over the role that the Government should take to protect and promote free speech. On the Government side of the House, we believe that standing up for free speech is a key responsibility of any democratic Government, we believe that students and lecturers should not be silenced, and we are prepared to stand up for free speech and not just make tokenistic soundings regarding its value. That is why we are bringing forward this legislation to deliver on our manifesto pledge.

Some hon. Members questioned whether there is a problem on our campuses. Tell that to the countless academics and students who have shared their experiences with me. Tell that to the students and academics whose stories have been shared by hon. Members today.

[Mr Kevan Jones]

The hon. Lady has just said that she has countless examples. Will she, after the debate—if she does not have it with her now, that is fine; I accept that—publish the data on which the Bill is based? That would at least show that there is some evidence behind the Bill, rather than just the hearsay she is telling us about.

[Michelle Donelan]

I am confused about how the right hon. Member cannot recognise the evidence. We have heard from so many hon. Members today who have shared examples: my hon. Friends the Members for Ashfield (Lee Anderson) and for North West Durham (Mr Holden); the hon. and learned Member for Edinburgh South West (Joanna Cherry); the hon. Member for Canterbury (Rosie Duffield); my right hon. Friend the Member for South Holland and The Deepings; the hon. Member for Gower (Tonia Antoniazzi), and my hon. Friends the Members for Congleton and for Dudley North (Marco Longhi).

Numerous studies have shone a spotlight on the problem, but they only document the tip of the iceberg, given the nature of the chilling effect outlined by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Think for a moment about those who feel too afraid to speak out for fear of repercussion, and feel that they have to self-censor. Our universities should always be bastions of freedom and intellectual discussion. That point was well made by my hon. Friend the Member for Watford (Dean Russell).

As my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates) stressed, how can we expect society to progress or opinions to modernise unless we can challenge the status quo? The intolerance and influence of some has led students and academics to self-censor their views. Those individuals are some of the best and brightest, yet their ideas go unexpressed. Imagine the potential loss here—we will never know. We can, at least, look back at the past. Where would we be now if the views of 100 or even 200 years had never been challenged? As a woman, I doubt I would be an MP, let alone Universities Minister.

No one can deny the massive impact that covid has had on students, universities and staff. However, to address the question asked by the hon. Member for Warwick and Leamington (Matt Western) as to why we are doing this now, I would argue that covid has highlighted the value of personal freedoms that many of us used to take for granted. That is on top of the fact that the British public placed their faith in us to deliver on a manifesto—and deliver we certainly will.

We have heard from some Opposition Members that we need cultural, not legislative, change. I remind them that current legislation lacks an enforcement mechanism. Yes, some universities, including Essex, have got their house in order, and we recently saw a strong commitment from the Russell Group, but as so many speakers today have highlighted, there is a problem. We also know the crucial role legislation can play, and has played, in cultural change; take gender equality, race discrimination and human rights as examples.

A number of Members spoke about how higher education providers will have to balance competing duties. It is important to remind the House that they already have to do that. However, the Bill places a duty on providers to take reasonably practicable steps to secure lawful free speech. It does not supersede the Prevent duty or the Equality Act. The requirement to take reasonably practicable steps is right. It cannot be sensible to require providers to act unreasonably or to ignore their other legal duties. The Bill will give providers further clarity, because the new director will give advice and issue comprehensive guidance.

I want to be very clear: this Bill only protects lawful free speech. Harassment, racism, discrimination, hate crimes, and incitement of violence or terrorism will have no place on our campuses or in our society. In fact, I vehemently believe that we should defend and safeguard freedoms on all fronts, from freedom of speech to freedom from persecution.

[Michelle Donelan]

I absolutely confirm that, and I agree with my hon. Friend.

Some Members have asked how the Bill will interact with the Government’s work to combat antisemitism. Antisemitism is abhorrent and will not be tolerated in our universities, which is why we have encouraged more than 100 higher education providers to sign up to the International Holocaust Remembrance Alliance definition. Regarding the specific question of holocaust deniers, any attempt to deny the scale or the occurrence of the holocaust is morally reprehensible and has no factual basis. In many cases, those who deny the holocaust have links to neo-Nazi extremism, antisemitic violence and intimidation. There are numerous reasons why someone who denies the holocaust should not be invited to speak on campus, and nothing in the Bill gives them a right to a platform.

[Mr Kevan Jones]

I agree totally with the hon. Lady and I do not think for one minute that she is promoting those individuals, but what is to prevent a holocaust denier who has been denied the opportunity to speak at a university from using the legal framework in the Bill to sue that university? The legal action might not get anywhere, but the university would have to spend a lot of time and effort defending itself.

[Michelle Donelan]

I thank the right hon. Member for his intervention.

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 as such is intolerable in a democratic society. I will put on record again, just as my right hon. Friend the Secretary of State did before, that there is no place in universities for an extremist views that masquerades as fact but is complete fiction while grotesquely seeking to misinterpret global history in a deeply offensive way. To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination. The public sector equality duty, the Prevent duty, hate crime and, of course, criminal law may apply. That point was excellently articulated by a number of Members, including my hon. Friend the Member for Bury North (James Daly).

The Opposition raised the issue of anti-vaxxers. We have one of the world’s most successful vaccination programmes, with over half of 18 to 24-year-olds already having had their first jab. The Bill categorically does not give the right to a platform to anti-vaxxers who may make baseless claims. This makes me wonder whether the Opposition have, in fact, read the Bill. We will not be supporting their amendment today, as it serves only to highlight their desire to inhibit free speech. The hon. Members for Stretford and Urmston (Kate Green) and for St Albans (Daisy Cooper) argued that the Bill would result in universities refraining from inviting speakers. The reality is that it places a duty on providers to promote free speech, and they will be investigated by the director if they fail to meet that duty. The importance of the new duty to promote was clearly articulated by the right hon. Member for North Durham (Mr Jones).

I want to note the powerful speech by the hon. Member for Birmingham, Yardley (Jess Phillips). I agree 100% that abhorrent sexual harassment has absolutely no place on our campuses, and every university should have a robust complaints process. Two weeks ago, I wrote to all universities stating the Government’s clear view that non-disclosure agreements should not be used in these circumstances, and the OfS has produced a statement of expectation and is looking at creating a new registration condition. I recently met the founders of Everyone’s Invited, and I would also be happy to meet the hon. Member to discuss this important topic.

My hon. Friend the Member for Bury South (Christian Wakeford) raised the issue of security costs resulting from no-platforming, and cited the example of the Israeli ambassador. Higher education providers should not be no-platforming by the back door. The Bill is clear that reasonably practical steps should be taken to secure freedom of speech for visiting speakers, and I expect the Office for Students guidance to make it clear that this applies to security costs.

The Bill will protect numerous views that are alien to me and to many in this Chamber, but it is not only naive but dangerous to suggest that defending the right of a view in any way endorses a specific view. Surely, as politicians, we should all agree with the sentiment of Evelyn Hall, who stated when summing up Voltaire’s views:

“I disapprove of what you say, but I will defend to the death your right to say it.”

It is disappointing that not all Opposition Members understand this simple principle, which is much at the heart of the Bill: not a right-wing, anti-woke agenda but an agenda that allows all views and ideas to flourish. We have an immeasurable pool of talent in our students and academics, overflowing with ideas and values that will drive forward this country to build back better, and now is the time to unlock their potential.

Universities should not be echo chambers but petri dishes of new, thought-provoking ideas, concepts and visons. That is why this Government are making good on their manifesto commitment to tackle the pattern of self-censorship and its chilling effect by protecting and bolstering free speech and academic freedom. I commend the Bill to the House.

Question put, That the amendment be made.