Higher Education (Freedom of Speech) Bill (Twelfth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Sir John Hayes (South Holland and The Deepings) (Con)
I beg to move amendment 70, in schedule, page 17, line 36, at end insert—
“14A After section 32, insert—
‘32A Section 26(1) duty: exception for higher education providers
For the purposes of section 26(1) of this Act, the obligation to have due regard to the need to prevent people from being drawn into terrorism shall not apply to any decision made by a registered higher education provider that directly concerns:
(a) the content or delivery of the curriculum;
(b) the provision of library or other teaching resources; or
(c) research carried out by academic staff.’”.
We have had a useful debate on the principles of the Bill. A difference between us has emerged during that debate, which is essentially the difference between those of us who think the Bill is essential, because we think there is a prevailing problem that we need to address—that was reflected to some degree in the evidence we received from Professor Biggar, Dr Ahmed, Professor Kaufmann, Professor Goodwin and so on—and those who take the opposite view, that there is not a problem and, if there is, it can be dealt with by existing means.
My anxiety in all of these matters is to bring clarity to the Government’s intentions. I have made that point throughout. We have been reassured by the Minister a number of times that she is listening to the Committee and will go back and reflect further on the points that have been raised. We have also heard that much will be made clearer in guidance. That is not uncommon in this place. Over many years, as a shadow Minister and Minister, I have encountered many occasions where the implementation of a Bill, particularly when breaking new ground, has required that guidance be issued. It is right and important—if I were the Opposition, I would be making this point—that that guidance is made available at a time that allows it to be scrutinised. I understand that argument, and it is a perfectly reasonable one.
However, equally, from the point of view of good governance, it is important that the guidance—based on the discussions and consultations that will no doubt take place, as the Minister has assured us, between the sector and Government—is iterative and that it reflects those discussions and marks those consultations. I am not as concerned about that as some, because I assume a degree of good will in that respect.
My view about the Bill and the Committee is that, as was said by Members from across the House, our task is to improve the legislation during its passage. That is precisely what I have tried to do in the amendment. For me, it is about certainty and clarity and about establishing an environment where universities and others will be confident that the new regime is one that will deliver the outcomes we want, which is to facilitate and, indeed, to guarantee free speech on campuses across the country.
I am a supporter of the Bill, and the amendment, as hon. Members will see, is a helpful one. It is not designed to do anything other than to improve the legislation. I am also mindful that all Acts are rather different from the Bills they begin as. No Act of Parliament is quite like the Bill that is published; they all metamorphosise during their passage and improve as a result of that metamorphosis. So, the amendment, which is straight- forward, is designed to provide greater clarity, build the certainty I have described and also mark the progress of the Bill. Once the Bill becomes an Act we need to measure its effect. I have argued throughout the Committee for greater clarity, for greater certainty and for more information to be provided.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The amendment talks about the Prevent obligations, which are not an Act in themselves so are subordinate to Acts, not being applied for purposes of research, delivery of the curriculum or teaching. Can the right hon. Gentleman give some examples of how he would want this to be applied? We are not quite yet clear on this side of the Committee about whether that is something we would be positively happy with because we are not clear on how the he sees it being implemented.
Sir John Hayes
The hon. Gentleman has not only anticipated fully my preliminary remarks, but the essence of my amendment and my speech. I was about to say that my efforts are to improve the legislation and ease its passage to create the certainty and clarity I described. The hon. Gentleman will not necessarily know this, but as Minister for Security at the Home Office, I introduced the Prevent duty. Prevent was a long-standing part of our strategy to deal with counter-terrorism, as he will know, but I introduced the change to oblige local authorities, schools, the health service, community organisations and others to identify, where they might, people who were vulnerable to the overtures of terrorists or who were possibly dangerous already in those terms. We are talking here about potential terrorists and the hon. Gentleman will know that the way the Prevent duty works is that when those people are identified, a process begins, which may end up in them being referred to the Channel programme. The Channel programme is designed to counter the activities of extremists and others who wish to groom those individuals.
Sir John Hayes
I see the Whip is nodding. It is important that we are clear about how the Prevent duty operates in practice; the intent of that duty; and the relationship between that and the provisions of this Bill.
We have already spoken about the necessary consistency in the application of these provisions. We have also spoken about the interaction, the interface between these new legal responsibilities and existing law, particularly in respect of the Equality Act 2010. More generally, it is important that this fits with other legislation when it becomes law. That is always a challenge for the Government because Ministers and Governments inherit a statutory landscape not of their making. That is not always a straightforward process. However, by improving legislation in this metamorphosis we can address that issue. That is what I am trying to do with the amendment. I do not know whether it is perfectly worded; I do not know whether it could be improved.
Lloyd Russell-Moyle
The right hon. Gentleman has clarified his thinking for me, which is very useful. I am not sure about some of the detailed wording, but that is the point of a probing amendment, is it not? I wonder if he would like to reflect on the interesting contradiction that the Prevent duty does not apply to student unions, but it does apply to the institutions. This amendment applies to both. When the right hon. Gentleman was Minister, did he consider why the Prevent duty was only on the institutions? Why did he not extend that duty to the student unions, and why is he now supporting this Bill, which does the opposite?
Sir John Hayes
I spend a good deal of my time contemplating what I think now, and I occasionally contemplate what I thought once. However, the longer one has lived, the harder that becomes. I could not say with absolute conviction that I recall the considerations I made in years gone by. It is complicated, in my case, by the fact that I have held a lot of different ministerial offices, and dealt with a lot of legislation over a lot of years. I said to the Labour spokesman that I have sat many times where he sits today, and, while it is tough being a Minister, it is pretty tough being a shadow Minister too.
I hope I have made it clear that my intention is positive; good Committees are about responsible progress being made—to that end I do not want to delay the Committee any further. This is a probing amendment to clarify, and make straightforward, the relationship between these legislative imperatives, so that the universities know precisely what is to be done. Finally, I send this signal out again: the Prevent duty is not about curbing free speech, it is about identifying potential terrorists. It is no more or less than that. It should not be under-interpreted, because we need to find those people before they do harm. However, it should not be over-interpreted as a backdoor means of closing down free and open debate.
Lloyd Russell-Moyle
I declare my usual interests with the University of Bradford, the University of Sussex, and the University and College Union.
When I first saw the amendment, I was slightly confused —[Interruption.]
Lloyd Russell-Moyle
When I first saw the amendment, I was slightly confused about its purpose. The idea that the Bill ought to refer to contradicting or overlapping—however one might phrase it—legislation and sets of guidelines is something that we have proposed in previous amendments, which I feel were slightly better worded.
I put it to the Minister that we need in the Bill a recognition that there are contradictory guidelines and that there will be guidelines to explicitly outline how duties and laws at universities will interact. That would relieve of a lot of pressure. We want surety that the guidelines will have that element to them in perpetuity, so that whatever new Government or office comes in, the guidelines will always outline how the Acts and duties interact with each other.
In that sense, I understand and agree with the spirit of the amendment, but the Bill probably needs something that goes further and has more detailed wording. I also understand that there have sometimes been cases in which either the Prevent duty as it is now, or the Prevent programme as it was, was used and had a chilling effect. We have heard that from different organisations. The Nottingham Two have been mentioned; that was a case of a PhD student researcher and a lecturer at the University of Nottingham. The university felt that it was its duty to report them to the police; they were arrested for downloading and disseminating the al-Qaeda manual and were refused bail for a period of time. There has been a lengthy court case on that. Compensation was paid to the two individuals because they were researching how terrorists radicalise people—the very thing we need researchers to be working on.
The law has helped to correct itself through the court process. I am not diminishing the awful effect it must have had on the two researchers, but they have received compensation and to some extent, unfortunately, these things do happen. Most institutions have already corrected their reporting mechanisms to ensure that that kind of thing does not happen. I am sure the example right hon. Member for South Holland and The Deepings gave us of the chaplain will be a one-off example that will help us to correct in the other direction as well. Those correction moments are sometimes needed, rather than using statute or legislation to do it.
One thing that should perhaps be included in guidelines is some idea of a process for when you are dealing with contradictory things, such as something that might breach the Equality Act but is necessary to talk about difficult issues that are discriminatory, or that might breach the Prevent programme in a literal reading, rather than its intended spirit. It is the same in universities when dealing with issues that might trigger a safeguarding process; a lecturer or researcher would write to the university to explain what they plan to do in order to get prior authorisation.
Mr Jones
There are no key principles for how somebody gets referred to Prevent; it is actually about assessing someone’s vulnerabilities and a pattern of behaviour. There may be an example raising one issue that would automatically get people put into Prevent, but I think the structure is already there.
Lloyd Russell-Moyle
I totally agree. However, an example might be if a lecturer wishes to run a course about Islamic radicalisation. They might say to the university, “I need some extra safeguards put around this course because of the students it might attract and the topics we might be dealing with. It is important to teach this course for academic rigour, it is important to understand these issues, but it might attract people to join the course for undue reasons.” That is not to stop them from doing it; it is just to make sure there is a safeguarding approach. All of that kind of stuff needs to be in the guidelines, not here. I hope that that is what the Minister will say. I think a safeguarding, prior notification approach is what is needed here.
I did want to touch on the interesting contradiction brought up by this amendment. Prevent—although there is debate about its understanding and its use, I do not think that is relevant here—is an important programme to try to safeguard and stop the radicalisation of people in our country. However, it applies to the institutions, and the institutions cascade to bodies that work within them, such as student unions. It does not apply directly to student unions in terms of the duty. This does, which is an example of where this Bill overreaches.
If the Bill is going to have a deeper, more intrusive reach than the Prevent programme, we need either to revisit the Prevent duty or to say that this Bill is a bit of an overreach, that it is not necessary for it to be regulating as deep down as student unions and student clubs. This amendment helps to highlight that. That is an argument I have made many times in this Committee, so I will not go any further on that point.
Michelle Donelan
Under amendment 70, higher education providers would not have to comply with certain academic decisions such as those concerning delivery of curriculum or research in relation to the Prevent duty. The Government are clear that the Prevent duty should be used not to suppress freedom of speech but to require providers, when exercising their functions, to have due regard for the need to prevent people from being drawn into terrorism. There is no prescription from Government or the Office for Students on what actions providers should take once they have that due regard.
Specific guidance has been published by the Home Office on how higher education providers should comply with the Prevent duty. The legislation imposing the Prevent duty in higher education already specifically requires that providers have particular regard to the duty to ensure freedom of speech and the importance of academic freedom. That means that providers already have special provisions on the application of the Prevent duty to enable them to take proper account of academic freedom, so there is no need for this amendment to go further.
The Government have commissioned an independent review of the Prevent duty and are looking at how effective the statutory the Prevent duty is, to make recommendations for the future. I hope that reassures the Committee.
Matt Western
I beg to move, That the clause be read a Second time.
This important provision is all about having sufficient resources. As we have debated at some length, student unions will bear a considerable burden of cost and resource to make the duties work on campuses. It is an administrative burden that hitherto they have managed to cope with, but this greatly exceeds what they would have done in the past.
We have to remind ourselves that we are talking about the full plethora of institutions from larger universities to smaller higher education institutions and further education colleges. The Department for Education’s impact assessment quotes a cost to student unions of £800,000 a year to implement and update the code of practice. The impact assessment also makes it clear that student unions will face the heaviest burden because of their unfamiliarity with the new administrative requirements; most universities already have in place good codes of practice on freedom of speech.
The Bill disproportionately affects a variety of SUs, such as those at FE colleges. The Association of Colleges points out in its briefing that 165 FE colleges are registered higher education providers on the Office for Students’ list. The recent submission by Durham University, which I am sure is of particular interest to two Committee members, makes it clear that clause 6 could represent a significant additional administrative burden on organisations. Jim Dickinson of Wonkhe highlighted in his submission that
“the funding and resultant capacity and capability of an SU to undertake these duties is usually wholly dependent on a negotiation between the SU and the provider. Without a duty on the provider to resource the SU appropriately to carry out the duty there is a material risk that they will be unable to. Vexatious complaints surrounding, for example, SU elections may not succeed but would cause an SU committee to need to seek costly legal advice which it may not be funded to obtain.”
Given that the Government have voted down all our attempts to amend the Bill in a satisfactory manner, the new clause is a form of backstop to ensure that the legislation will not challenge the viability of SUs up and down the country through the need to withstand these costs and the potential for vexatious litigants. The new clause is yet another constructive amendment that we want included in the Bill to recognise the immense financial burden and responsibility faced by student unions in the wide mix of institutions and colleges that the measures will affect. We think it important that the Government recognise that student unions will face that burden, which could seriously affect their viability.
Lloyd Russell-Moyle
In local government, the health service, education and other areas, there is a doctrine known as the new burden doctrine. It is a sensible doctrine whereby if a new burden is put upon a body—particularly in local government and in educational bodies under local government—the Government shall make provision to pay for that new burden, or they will provide for that body to be able to raise revenue to cover the new burden.
Higher education institutions have income-raising capacity, although I am sure they would say that the cap should be lifted or the funding formula should be changed. They can make that an argument to the Chancellor at the spending review, and I know that many of them have. I desperately hope that the burden is not put on poorer students, as we are reading in the papers. Personally, I would move to a proper graduate tax, or even free education. A new graduate tax could be introduced for the young, and an old-age social care tax for those who are older, so we could have one joint intergenerational tax that allows a bit of intergenerational solidarity—but I digress.
Despite my desire for free education or a proper graduate tax that does not put people in debt, universities can go and make their case to the Chancellor. They have powers to raise revenue, either by seeking research funding or through student fees. They can get more students in, in fact—they could squeeze two or three more students into lecture halls. Student unions have none of those abilities. They do not, on the whole, raise revenue. Some, which are now the exception, still run some commercial businesses, but that is a rarity in higher education—even in campus universities. Most campus university student unions do not even run their own bars now.
Government Members who think that student unions can raise the money need to look again at student union finances, the vast majority of which come from the good will of the institution. The problem is that if the institution deprives the student union of money, the financial penalty for that student union and its duty do not transfer back to the institution; the liability is not reduced. I suspect that the liability will be covered by the student union’s paying basic insurance, but if it is deprived of money it will have no ability to pay for that, while still having the liability.
The new clause does not specify an amount; all it says is that the institution, in appointing the student union—because it appoints the body that is the student union; its job is to say, “This is our registered student union”—has to make sure that the student union has sufficient resources. If the student union has bars and commercial services, the institution can say, “We’ve ensured that you have the right resources because we can see that you have an income. No problem.” If the student union has none of those resources, all the new clause requires is that the institution takes steps to ensure that it has. Perhaps it will give a bar over to the student union to run, so that it generates the resources, or perhaps it will give over an amount of money. The new clause requires that to happen. The guidelines will explain how that happens, of course, but without this provision I am deeply worried that we will be imposing a new burden.
Mr Richard Holden (North West Durham) (Con)
I have been reading the impact assessment and I can quite understand where the hon. Gentleman is coming from. It suggests that the annual enforcement costs would be around £400,000 a year and that the total ongoing costs directly applying to student unions would be £1.2 million a year nationwide. However, there are over 100 academic institutions and many student unions across the country; if we divide that cost by 100 academic institutions, we are not talking about a huge amount of money per institution. Does the hon. Gentleman not think that student unions should be able to deal with the small extra costs?
Lloyd Russell-Moyle
I go back to my point. This is not a huge burden on institutions, but we should require institutions to ensure that there are those resources, given that some student unions have almost zero resources—only a few hundred pounds in the bank account. For many student unions there will be no problem, but provision will be needed for others. The new clause just says to the institution, “Check that your student union can do this.” It might just be a matter of a few hundred pounds for the insurance premium. It is fair for the institution to be required to do that. I hope the Minister will take that on board, either in the guidelines or in Lords amendments.
Michelle Donelan
Earlier, I was too eager to get to new clause 2. The new clause would require providers to take steps to ensure that student unions have sufficient resources to carry out their duties under proposed new sections A4 and A5 of the Higher Education and Research Act 2017.
There is universal agreement about the importance of freedom of speech in university life. We saw that in the evidence sessions. There is also broad consensus about the important role that student unions play in protecting freedom of speech on campuses. Many student unions do fantastic work in that area, including having their own codes of practice, which often involve collaborative relationships with the provider. We fully expect that to continue, and for providers and student unions to work together, hand in hand, in relation to freedom of speech. That may include, where appropriate, a provider taking steps to ensure its student union is adequately resourced to carry out its duties. It may also involve the sharing of good practice, or a provider assisting the student union with the development of its own code of practice.
The measures are about protecting fundamental principles, not creating more red tape. There is huge diversity among student unions in the ways they are established and funded, reflecting the huge variety in the higher education sector as a whole and in further education. It is important that we reflect that variety in the Bill and do not seek to regulate the relationship between providers and student unions with a one-size-fits-all policy. Some student unions are heavily reliant on funding from their university; others may be more financially independent. Many have developed innovative portfolios as a way to generate income to contribute to a fulfilling university experience for students. The amendment does not reflect that variety or the differing, often complex arrangements that exist between providers and their student unions.
It is also important to note that the duties in proposed new sections A4 and A5 apply only to student unions of approved fee cap providers. Student unions of small, specialist providers that are not approved fee cap providers are not in scope of the Bill. In that way, we are ensuring that the Bill’s measures are not overly bureaucratic and follow the approach in the Education Act 1994, which sets out regulatory requirements relating to student unions at a number of institutions, including approved fee cap providers, but not other providers. In contrast, new clause 2 would place an additional, unnecessary regulatory requirement on providers in relation to student unions. In addition, we expect that there will be guidance from the Office for Students in due course that will help student unions to understand how to comply with their duties and assist them in drafting their code of practice.
Lloyd Russell-Moyle
If the student union has nothing more than a petty cash box and no staff or sabbatical officers—there are some such student unions—how does the Minister suggest that they draft a professional code of conduct without the institution ensuring that they have the resources to do so? The new clause does not talk about cash; it could be secondment of staff.
Michelle Donelan
I thank the hon. Member for that very good point. While not wanting to predetermine the work of the new director, I fully anticipate that they will look at drawing up templates of such codes of practice to assist.
I trust that I have been able to reassure the Committee that we are taking appropriate and proportionate actions to ensure that student unions can address freedom of speech in a way that is not overly bureaucratic and that reflects the variety in their composition, size and financial arrangements.
Higher Education (Freedom of Speech) Bill (Eleventh sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My hon. Friend is explaining exactly what Trevor Phillips described. He said that a regulator does not go to the final fine or nth degree immediately; it works with, issues guidelines or goes in to provide support, and sometimes that is compulsory. The amendment would provide for what our witnesses said needs to happen.
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.
Fiona Bruce (Congleton) (Con)
I want to speak to the amendment because it is important that there is public understanding of what the amendment calls the “nature of complaints made”. I am not sure whether the amendment would add anything to the regular reviews and reports in the amendment proposed by my right hon. Friend the Member for South Holland and The Deepings, which the very thoughtful Minister—she has promised to do a lot of thinking following comments made during this Committee—is going to consider.
It is essential that there is a good, clear understanding of the deliberations of the director. I very much support clause 8 and having the office of an individual who is responsible for looking at this kind of issue. It is really important that there is clarity on the deliberations and decisions of the director about the concerns referred to him.
I want to highlight an example of the nature of complaint that we are talking about. Yesterday, after the Committee last sat, an article entitled “Oxford college run by former equalities head apologises for hosting Christian conference” appeared in The Daily Telegraph. It said:
“New case of 'cancel culture' as Worcester College acknowledges 'distress' caused to students.
An Oxford college run by the former head of the equalities watchdog has apologised to students for hosting a Christian conference…In what has been described as the latest incident of ‘cancel culture’ at British Universities, Worcester College acknowledged the ‘distress’ that it had caused students by hosting a Christian Concern training camp… Christian Concern held its annual week-long Wilberforce Academy at the beginning of September, whilst Worcester College was closed for the summer break. The evangelical… group says that more than 100 young people were ‘very warmly welcomed, including by the Provost, received many compliments from the staff, and were not aware of any complaints or concerns’.”
However, students, presumably from Worcester College, are
“understood to have complained that the curriculum for the residential camp was Islamophobic as it included a discussion on the ‘nature of Islam’”.
Lloyd Russell-Moyle
The hon. Lady is describing an event that went ahead—it was not cancelled. Some students had complained about it and the college has acknowledged the hurt, but it is not proposing to cancel it in the future. So what is the point?
Fiona Bruce
Actually, I think the endeavour is to cancel this in the future.
Fiona Bruce
No, but it is my opinion that the endeavour is to cancel this in the future.
The definition of Islamophobia was actually debated in this place just a few days ago. The Under-Secretary of State for Levelling Up, Housing and Communities, my hon. Friend the Member for Walsall North (Eddie Hughes), said:
“we cannot accept a definition of Islamophobia that shuts down legitimate criticism and debate. Freedom of speech is the foundation of a healthy society, allowing for debate and disagreement underpinned by the values that bind people together—tolerance, equality and fairness.”—[Official Report, 9 September 2021; Vol. 700, c. 204WH.]
It seems to me that the mere discussion of the nature of Islam, which seems to be the allegation here, cannot possibly be construed as Islamophobic.
Michelle Donelan
Amendment 79 would make the director for freedom of speech and academic freedom responsible for providing an annual update to higher education providers and student unions on the number and nature of freedom of speech complaints that the Office for Students has dealt with, as well as examples of unacceptable infringements of freedom of speech.
It is important that the OfS is accountable for the operation of the complaints scheme. That is why clause 4 provides that the Secretary of State may require it to include a special report in its annual report on matters relating to freedom of speech and academic freedom. Such a report must be laid before Parliament so that Parliament and the sector may scrutinise it. Equally, paragraph 12 of proposed new schedule 6A to the Higher Education and Research Act 2017 provides that the Secretary of State may request that the OfS conduct a review of the complaints scheme or its operation and report on the results.
As for what the OfS believes constitutes unacceptable infringements of freedom of speech, it will issue guidance to providers and student unions to help them to comply with their duties under the Bill. In particular, it will consult on and issue changes to the regulatory framework, under section 75 of the 2017 Act, which states that the OFS
“must include guidance for the purpose of helping to determine whether or not behaviour complies with the general ongoing registration conditions.”
That guidance may specify
“descriptions of behaviour which the OfS considers compliant with, or not compliant with, a general ongoing registration condition”
as well as
“factors which the OfS will take into account in determining whether or not behaviour is compliant”.
Similar guidance will be included for student unions.
Lloyd Russell-Moyle
Does the Minister imagine that inappropriate apologies will now not be allowed under that guidance?
Michelle Donelan
I do not want to get into the individual example, because I am not fully familiar with the details. My hon. Friend the hon. Member for Congleton said that she was concerned that that event would not happen in future because of that apology. I will look into the details.
Clause 4 also provides that the OfS may identify good practice relating to the promotion of freedom of speech and academic freedom and give advice about that to providers. The Government expect the OfS to work with the sector and a range of relevant stakeholders to ensure that there is clear and relevant advice to help higher education providers and student unions feel confident in fulfilling their duties. I therefore hope that Members will be reassured that the Bill ensures transparency in relation to freedom of speech functions at the OfS, and that guidance will be given to the sector to help it to understand how it comply with its duties. However, as I have previously committed, I will take away the issue of reporting and consider what more we can do on it.
John McDonnell
The simple point is that this is possibly one of the most contentious appointments in government, because it deals with contentious issues. Without some element of robust non-partisan protection in the appointment process, the whole operation of the Bill might be undermined. That is why extra safeguards are needed to ensure a buffer between the individual and party political activity. That is what one of the amendments seeks to address.
Lloyd Russell-Moyle
Historically, universities were set up by royal charter, specifically to ensure that Governments of the day were not meddling in appointments at university and that free speech was thus preserved. That was the ancient, as well as the more modern right of universities. Surely there is a requirement for those principles to be extended to the body that will now interfere in the operation of universities. Otherwise, we undermine the whole principle of independence, autonomy and therefore free speech in our higher education sector.
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.
Higher Education (Freedom of Speech) Bill (Tenth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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John McDonnell (Hayes and Harlington) (Lab)
I make this simple point. Like my hon. Friend, I have met the National Union of Students to talk about the legislation. One question asked was, “What have the Government got against young people?”, because this seems to be an attack on an organisation that young people rely on. I do not understand it. If the legislation is to act as a deterrent against poor behaviour, the Government need to set out what the deterrence is. If there is an element of risk if procedures are not adhered to, that needs to be set out. Normally when introducing sanctions, at least there is a tariff system of some sort. In this legislation, there is no tariff. We are completely in the dark.
The obvious solution is to simply consult people about what the levels should be and how they should relate to certain types of behaviour. In normal circumstances when we impose sanctions, that is what Governments do. Even when it comes to criminal sanctions, there is extensive consultation. Certainly when they introduce civil elements of a sanction, there is detailed consultation throughout with the relevant parties, but that has not taken place in this case. All the amendment would do is ask the Government to sit down with the relevant bodies that will be affected so that they can agree, or at least be consulted on, the nature and level of the sanctions that will be introduced, and—we have referred to this in previous debates—a realistic maximum that does not break the institutions that the Government seek to work with.
When the Government introduce contentious legislation such as this, it is best to take people and the organisations that will be affected with them. The best way of doing that is to engage them in consultation and discussion about the detail of the legislation as it is rolled out. I hope the Minister can give us some assurances—
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
It is important to set out in this Bill the thresholds of the compensation that can be paid because that will also help the court process. We heard in evidence that a large amount of the cost to the court could come from arguments and wrangling about what the actual damage cost is. If that is laid out by the OfS, that reduces the burden of the cost to the courts.
Michelle Donelan
I have reiterated many times, as Hansard will show, that it is not our intention to hit, penalise or alienate student unions. We are talking here about proportionate measures to protect freedom of speech. We will ensure that there is a consultation and that the voices of student unions are heard so that the regulations are right.
Lloyd Russell-Moyle
The Minister mentioned “proportionate measures”, so will she commit to ensuring that the regulations reflect the size of the institution or student union, and the ability of the student union to comply? I am worried because if, after consultation, there is a flat rate, that would be disproportionate.
Michelle Donelan
Before I finish, I will repeat what I said a moment ago. In making the regulations, careful consideration will be given to the status and financial position of student unions and their varying sizes. I hope that having that confirmation on the record will satisfy hon. Members.
Matt Western
I stand corrected. The hon. Member obviously misspent more of his time than I did watching that. Whatever part of the anatomy it was, it was coming down rather heavily on the small person. That is what the Government are seeking to do. It is quite clear that the intention in No. 10 and its policy unit is to drive out student unions in this case and change the representation on how bodies may be affiliated on our campuses.
Too much of the clause is down to guidance and none of it has been done in collaboration with student unions. Student unions are not professionally organised with huge resources behind them to counter this and take the Government on. I would have thought the Government would be much more willing to work with student unions and with the National Union of Students and say, “We want to collaborate with you. We do understand there is this issue, and you perhaps appreciate there is a bit of an issue in certain places. How is it that we go about best addressing this issue across certain campuses?”, realising that it is not the case across 98.9% of events. We cannot support this. The obligations and duties on student unions are far too onerous, and we will be voting against the clause.
Lloyd Russell-Moyle
As we have heard, this is one of the most worrying parts of the Bill because it seeks to regulate private associations even further. It is a very dangerous step because it starts to undermine freedom of association and the ability of people to do what they wish. Student unions, of course, came under the regulation of their institutions through the Education Act 1994. That Act also allowed students to opt out, which was widely touted to be an attempt to bring in an Australian-style opt-in for student unions, in the hope that it would destroy them, as happened in Australia. That failed, and more than 25 years later this is the next attempt to try to undermine and obliterate student unions and to obliterate the poorest or most fragile parts of our HE sector.
Lloyd Russell-Moyle
It does possibly explain a lot. He was also clerk to one of the parish councils that I served on, so our lives have been intertwined.
That case said that student unions are excepted charities. As a result of the Charities Act 2011, student unions are not only excepted charities and therefore exempt, but regulated directly by the Charity Commission. As charities, they have a duty to be non-partisan, to be balanced and to ensure that they fulfil all the requirements of the Charity Commission, and we know that the commissioners have great powers to step in if charities are being partisan. So we have a great deal of regulation for student unions already.
Of course, in the HE sector, which this clause covers, student unions are part of that broader assessment that Ofsted has to make when assessing the student unions of the further education college, so now we have a fourth piece of regulation.
Emma Hardy
I want to give a tangible example, just in case the Minister has missed this. This regulation, as written here, will apply to Basingstoke College of Technology’s student union. By dint of the college being OfS-registered, because of its HE provision, its student union, which is currently governed by some 17-year-olds keen on running Rag Week, will have to comply with the regulations written here and, as we have heard from the Minister, there will be a fine of an undisclosed amount if they do not, yet still JCRs will not have to comply. Does the Minister not accept that applying this to every single student union, regardless of whether it forms part of an FE college or an HE college, is a little over-bureaucratic?
Lloyd Russell-Moyle
My understanding is that this relates not just to the student union’s activities be in the HE sector, but to the whole of the student union’s activities, even in the FE part of the institution, so student unions in that sector may face more administrative and regulatory burdens than their parent institutions. It is a bizarre situation. That is why this whole provision must be withdrawn, or voted against, or at least rephrased. The Minister must make sure that this is restricted to only that part of the activity that is HE, and that the regulation is light-touch, and she must make reference to how this relates to Charity Commission regulation. That does not apply for higher education institutions, because they are not regulated by the Charity Commission; they are exempted charities. Since 2010, student unions have not been exempted, so they have to register. They are regulated charities, and this measure is totally contradictory to the current regulation.
Michelle Donelan
It might be useful if I clarify for the hon. Member that, where student unions are registered charities, charity law will still apply to them. The OfS will only regulate student unions on freedom of speech matters.
Lloyd Russell-Moyle
Of course I understand that, but a complaint is not simple and will not be simple. For example, a charity that is seen to prejudice one part of speech, particularly political speech, would be in breach of charity regulations already, because we cannot privilege one part of speech or one part of activities as a charity because it is political speech. That is quite right, excepting the ruling of Baldry v. Feintuck, which says that political party associations of students can be supported within the student union if it is self-organised, because it is not the political activity it is supporting but the educational activity of students mocking up being in a political party, so they can hold mock elections and so on.
There is detailed case law and detailed legislation. The danger is that this Bill runs roughshod over that. People would have two places where they could complain. The complainant can go to the Charity Commission, where there is a basis of case law that is already very nuanced, and they can go to the OfS, where there is no case law and no such basis. Because we know the OfS will not necessarily be built with lawyers or making its decisions based on case law, the danger is that we will end up getting semi-contradictory decisions.
Baldry v. Feintuck says that student unions are free to support a Conservative club, for example, and to give money to that student Conservative club for its operations, as long as it offers the same amount of resources to the Labour club, the Lib Dem club or whatever different clubs might come along. There is a danger, however, that free speech regulation will say, “Actually, the regulations need to be different and will require the clubs to accept a broad range of views.” That is different from the basis on which those clubs have been set up.
I ask the Minister to reconsider ensuring that there is a direct reference to the Charity Commission and to the order of priorities in which someone would make a complaint to a student union. Currently, they could make a complaint to the institution, to the Charity Commission and the OfS.
Lloyd Russell-Moyle
And the OIA. I would appreciate the Minister doing that, because it is a minefield. We heard as much from the representative of Universities UK, who said that they were deeply worried that this would confuse the matter and make things more difficult in terms of regulation.
Before I finish, I will touch on the finances. Universities effectively have the powers to raise finances through their recruitment of students and the research grants they get. Universities live and die, in that sense, in their corporate actions. Student unions, for the most part, raise no money themselves. Gone are the days of the student bar and the student club. If Conservative hon. Members think that student unions get money from those, I am afraid they are misguided. The vast majority of student unions rely solely on a grant from the university. They are solely dependent on the university, higher education institution or further education institution.
Michelle Donelan
Listening to the debate, I am quite perplexed. On the one hand, the Opposition argue there is no problem with free speech, but on the other, they argue that once the Bill is introduced, virtually all student unions will be fined because they will be breaching it, and they will not be afford the fines. I am a bit confused about the argument here.
Lloyd Russell-Moyle
My argument does not necessarily only deal with fining; I am talking about regulation as opposed to fining, and we have had a debate on that. The point on fining is that we are worried that we will end up seeing a chilling effect and people coming forward vexatiously. That is a real concern—[Interruption.] The hon. Member for North West Durham groans, but he should stand up and say why he groans—give a speech or make an intervention supporting the Bill. He has said very little.
Mr Holden
I think that is a bit unfair. I do not quite understand where the hon. Gentleman thinks all of these vexatious claims will come from, and why they are about to happen. Why, in this instance, with student unions specifically, does he think that there will be millions of vexatious claims trying to close them down at the drop of a hat?
Lloyd Russell-Moyle
We have heard that “where there’s a blame, there’s a claim”. We have seen it in road traffic, and we have actually seen an increase in litigation in the higher education sector, which is deeply worrying. Government witnesses talked about the commercialisation of the HE sector and students demanding that they get the results that they want.Those demands have actually led to universities being more restrictive in what people can say. This will increase that.
Mr Holden
The evidence that the hon. Member is pointing to is on students and their universities, and I can quite understand that. This point, however, is all about student unions, so I would like to understand why he thinks that student unions will be targeted, rather than education providers.
Lloyd Russell-Moyle
Because, so far, student unions have not had that contractual relationship, with the ability of students to take them to court for failing to fulfil a service. That is my point about where the money comes from. At the moment, the student gives the money to the university. The contract for a basic service is between the student and the university. This extends that, so the student then has a direct contractual relationship with the student union.
If the hon. Member thinks that every single student will agree with what their student union is doing, and that no student will try it on, then I am afraid that his university experience was far too bland. My experience was of debate and contestation, and of people arguing and wanting to push the boundaries—quite rightly. This will not help that, because it will regulate student unions in a way that means they cannot then defend themselves properly. The reason for that is the financial point, which I was trying to come on to.
The university gets money from the student. They then give a grant—usually a small one—to the student union, which then spends, effectively, the university’s money. My understanding is that, according to the Education Act 1994, the university has an oversight role for how that money is spent. Yes, the student union can spend it how the students want, but within a framework that the university sets out and lays down. If the student union is liable, whose money are they liable with? That is what I am trying to get at.
If the OfS puts forward financial sanctions, whose money are they sanctioning at the student union? The student union’s money is just the university’s money, held in trust and spent on behalf of the university. Would student unions need to raise unrestricted monies, somehow? We know that most student unions do not raise unrestricted monies any more, because gone are the days of the bars. Or would student unions, if they were fined by the OfS, need to use their restricted university grants on this? If so, that clashes with the concept that that university grant is restricted to only the educational activities of the student—not for liability claims against the union. It seems strange that they would face this double regulation, and money able to be drawn from all different quarters, when they have no money themselves.
Mr Jones
It is a bit unfair to call the hon. Member for North West Durham—my neighbour—“bland”, but anyway. Surely, what will happen is that student unions will take out indemnity insurance, whether they need to or not? That, again, is more money going away from education and into the coffers of insurance companies.
Lloyd Russell-Moyle
Either they will get indemnity insurance, or they will find a way to be covered by the institution’s indemnity insurance, which, again, defeats the whole point that student unions are regulated directly. We might as well regulate the institution, which would then have a duty—as they already do—to ensure that the student union is following the rules.
Emma Hardy
Another alternative is, of course, based on examples like the one I gave of Basingstoke College of Technology’s student union, and the other smaller student unions that exist out there. They simply stop having a student union and stop engagement, because some of these smaller colleges and institutions, which I have drawn attention to several times, could not afford the insurance. Those unions do not get much money from their colleges, which are their main providers, and therefore might not exist in the future. It would be a devastating impact of this Bill if we ended up with fewer student unions around the country.
Lloyd Russell-Moyle
We have talked in great detail—possibly too much for some Members. The point is that, in regulating the institution, where it is institutional money and resources, the regulation already flows down to the student union. That is the argument that the Minister has used for the junior common rooms. That already exists.
Double regulating the student unions actually confuses the matter. It makes it more difficult for complainants to seek redress, because student union premises are usually university premises. Who are they seeking redress from? Also, it potentially produces financial settlements that student unions would not be able to pay and that the university would effectively have to bankroll, but it would not allow the university to make representations to the OfS, in this case because the representations are directly with some 17-year-old who is the president of the union. It makes no sense whatever.
The legislation should be, as with the Education Act 1994, in the institution, which then supports the students to get it right. That is why the clause should be withdrawn. It would be a better Bill for it.
Question put, That the clause stand part of the Bill.
Higher Education (Freedom of Speech) Bill (Ninth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
My partner works at the University of Hull on the degree apprenticeship programme.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
I am a trustee at the University of Bradford union. I have received payment from the University of Sussex to provide educational opportunities, and I have received money from the University and College Union.
Mr Richard Holden (North West Durham) (Con)
I am vice-chair of the all-party parliamentary group for friends of Durham University
Clause 3
Civil claims
Amendment made: 4, in clause 3, page 5, line 21, at end insert—
“(aa) a constituent institution of a registered higher education provider, in respect of a breach by the governing body of the institution of any of its duties under section A1, or”. —(Michelle Donelan.)
This amendment is consequential on NC1.
Question proposed, That the clause, as amended, stand part of the Bill.
The Minister for Universities (Michelle Donelan)
Clauses 1 and 2 strengthen freedom of speech duties on registered higher education providers and extend them to students unions at approved fee cap providers. Clause 3 plugs an identifiable and substantive gap in the current legislative framework by providing individuals with a route of redress for loss suffered as a result of a breach of these freedom of speech duties. Clause 3 therefore creates a new statutory tort. This enables civil proceedings to be brought against a higher education provider in respect of a breach of the new duties under section A1 of the Higher Education and Research Act 2017, or against a student union in respect of a breach of the section A4 duty.
Individuals can still complain in the first instance—for free—to their higher education provider or student union if they consider that there has been such a breach. They can subsequently complain for free to the new complaints scheme that will be operated by the Office for Students, and students will still be able to complain for free about their provider to the Office of the Independent Adjudicator for Higher Education. However, the statutory tort will also be available, although we are clear that it is intended to be a route of last resort.
Lloyd Russell-Moyle
If that is to be a last resort, as the Minister claims—I take her at her word on that, because she is an hon. Member—someone could as a first step go to the courts. Will she ensure that they can do that only if they have exhausted all the other opportunities?
Michelle Donelan
I thank the hon. Gentleman for his comment. The problem is that if someone is a visiting speaker at a university, there would be no internal process that they could follow. We want to be as comprehensive as possible and allow this option to be available.
Michelle Donelan
I will make some progress and then give way.
As individuals will be able to seek redress for free via the OfS or the Office of the Independent Adjudicator, we expect individuals to make a complaint to the OfS or the OIA before relying on the tort.
Michelle Donelan
One thing we must be clear on is that the current system is not working. It is failing individuals who are having their freedom of speech breached, as we also heard from multiple sources in the evidence. At the heart of this Bill is unlocking a greater choice for individuals, whether that is going down the OIA route or the one-stop shop of the director who will be responsible for free speech and academic freedom. While it is true that at the moment not many cases that are brought forward are purely to do with freedom of speech, I argue that that is because we need this Bill in place and the new director in their position.
Given that individuals may not want to incur the legal costs and risks associated with bringing a claim before the courts, we do not expect this provision to give rise to many claims. It will operate more as a backstop for complainants, to cover claims by individuals who may feel they have no other recourse.
Michelle Donelan
I will, but we are going to have to let me do more than two lines at a time or we will never get through the Bill.
Lloyd Russell-Moyle
I am grateful to the Minister. She talks about last resort, and in response to my last intervention she said that that could not be put in legislation because external speakers will need it. Is she therefore saying that external speakers have no form of redress apart from the tort—that they do not have access to the other forms of redress?
Michelle Donelan
To clarify my comments, I believed that the hon. Member was talking about going through internal processes before addressing the tort.
Michelle Donelan
There will be a variety of options available. Going to the director will be the free option and the first instance, but we cannot mandate that they have to have gone through the internal processes of an institution, because those will not be available to everybody that the Bill seeks to represent.
For example, this clause will provide a means of redress for individuals who do not have employment protections, such as visiting fellows—the point I was making earlier. Let us bear in mind that the purpose of the tort is to bolster the enforcement of the new freedom of speech duties on higher education providers and student unions, so that there are clear consequences for those who breach those duties.
The clause will ensure a clear route to individual redress for all who have suffered loss where freedom of speech duties have been breached, and will give those duties real teeth. This is therefore a vital part of the Bill, as part of a suite of measures to strengthen free speech in higher education.
Matt Western
We have tabled amendments proposing how universities and student unions should find their way through that, and we will come to some of them later.
To finish, I want to raise the much-cited case of David Irving, who was uninvited from speaking to the Oxford union as long ago as 2001 because of pressure from academics and members of the student union, who were furious that he was being given a platform for his views on the holocaust. A High Court judge had previously described him as “racist” and “antisemitic” during a libel trial. During the evidence sessions, one of the witnesses hypothesised:
“If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 102, Q211.]
Lloyd Russell-Moyle
The contradiction in using that example is that the Bill would not make any difference, because it excludes the Oxford Union. The very thing that Government Members are worried about will not be dealt with, because the Bill excludes the bodies that have done this in the past and includes bodies that have never done it, such as further education college student unions. It is a blunt implement pointing in the wrong direction.
Matt Western
My hon. Friend is absolutely right. The examples that are being cited by lobbyists—perhaps more on the Government side—of where there is perhaps an issue are centred around those bodies. Currently, as we debated on Thursday, they are not included in the Bill.
We believe the tort should be scrapped. We believe it is unnecessary, encourages lawfare against universities and will ultimately end up restricting discussion and debate on our campuses. At the very least, we believe it should be amended with maximum fines. A threshold of harm should be introduced, and it should be restricted to those who are directly affected.
Lloyd Russell-Moyle
The difficulty with the inclusion of FE colleges is that, broadly, they are regulated by Ofsted; they have a completely different framework; and they have no relationship with the Office for Students, except in relation to some of the courses that they may run, although they usually do that via other affiliated institutions. Including FE colleges therefore brings into their sphere a whole new regulator that they have never dealt with before, creating even more bureaucracy and confusion.
Matt Western
My hon. Friend is absolutely right: there is yet another body to stir into the mix. We have not heard from the Government about how that will play. It further underlines the extraordinary complexity that the legislation will bring to our campuses, colleges, student unions and HE providers across the UK.
I repeat that all bodies mentioned the need for an exhaustive process, so that every sinew is strained to ensure that any complaint goes through the university, the Office of the Independent Adjudicator and perhaps the Charity Commission before it is escalated. There is an absolute desire—it has been demanded—that the tort should be a backstop to the existing grievance process. Otherwise, people will rush to lawyers’ doors, or the lawyers will rush to them, to seek damages at great expense to individuals, and to SUs and institutions in particular. On Second Reading, the previous Secretary of State, the right hon. Member for South Staffordshire (Gavin Williamson), claimed that the tort would be a backstop, but the Bill, as drafted, does not make that clear.
We believe that the clause is unnecessary. We fear that it will encourage vexatious claims and create additional bureaucracy, and we have talked about the £48 million that it will be incumbent on universities and SUs to fund. We believe that the clause will cause confusion to claimants about their various routes to redress through Ofsted, the Charity Commission, the OIA, the OFS and the universities themselves. The clause will also undermine existing disciplinary procedures. For those reasons, we oppose it and wish it to be removed in its entirety.
Lloyd Russell-Moyle
We have heard why the clause is dangerous, and I will talk briefly about two reasons why it should be opposed.
First, I will touch on the real chilling effect that I believe the measure will have on institutions. It is a lawfare charter, or an ambulance-chasing lawyer’s charter. Lawyers will go around knocking at institutions’ doors, and they will say to those three students who did not fill in the paperwork correctly to register their student club, “Do you think you’ve been slighted?” because the clause gives them the right to seek damages if the club is not registered. Those people, not the students or staff, will push the boundaries in all different directions.
There are people out there who look to make a quick buck when law is bad. In the past, we have had to rewrite law in this place and remove such opportunities because we had allowed massive loopholes. The easiest and cleanest way to stop that from happening is by following the evidence that we have heard, according to which the tort should be a backstop, not a front foot. At the moment, the Bill allows it to be a front foot.
The Amber Rudds of this world may not go running to the lawyers, but lawyers may come knocking on the door of a poor student or someone on a casual contract who is struggling to pay their rent. Large numbers of university academics struggle to pay their rent day in and day out, because their occupation is a very poorly paid one with low job security, except at the very top. We all have experienced something similar after car crashes, and it drives people crazy. It drove me crazy when I had a little prang at Bradford airport, which did not even cause a dent on either car, because for months afterwards I had lawyers ringing me and saying, “Do you want to claim compensation for whiplash?” The crash caused no damage to me whatsoever, but if I had been struggling to pay my rent or make ends meet, that would have been a temptation. I am afraid this clause opens up that possibility.
The first way to stop that happening is by requiring people to pursue the complaints procedures internally. I do not understand the Minister’s point about an external speaker being unable to complain using an internal process. In fact, we heard how an hon. Member in this room had managed to complain, although it was difficult. Perhaps external people should be able to complain internally. I think most people would like there to be a clear complaints process for external speakers as well.
Fiona Bruce
I remind the hon. Gentleman that even though the complaint that I made was upheld, it was futile, because only a year or two later there was an attempt to no-platform me again by the same group, in the same college. That is why this Bill and the recompense—this tort that we are talking about now—are so necessary.
Lloyd Russell-Moyle
The hon. Lady is exactly right that it is necessary to clarify that process to ensure that it is streamlined and clear, but under this Bill she might have complained first to the institution, the next time to the Office of the Independent Adjudicator and the next time to the person for free speech. There is no process for creating case law, for want of a better word, and setting a decent precedent. There is no precedent to be set here.
In fact, there are so many ways to complain that it will frustrate the process even more. It would be better to say, “This is the process you have to go through,” so the regulator can see that there is another complaint coming through about the same thing and can escalate it. One way would be to require people to go through a single process; first a free process in the institution and then a free process with one of the regulators. I am easy about whether it is with the Office of the Independent Adjudicator or the director for freedom of speech, as long as it is clear what powers they have.
If all ends are lost or the complainant feels that those offices have come to the wrong decision, they can take it directly to tort. That would allow a quasi-appeal process. At the moment, the director for free speech does not have an appeal process, so if someone thinks that it has come down on the wrong side, they will be stymied and unable to do anything. If it were clear that after going to the director for free speech, people could go to courts for tort, there would be an appeal process.
We do not know who the director for free speech is. Although I trust lots of people who are experts, everyone is fallible and will sometimes make the wrong decision. It seems wrong and unfair to rely on the director for free speech alone to make decisions that people will always be happy with. The director will not rely on case law or precedent, because they will be a law unto themselves when it comes to precedent.
The other way of making this tort section half-decent would be to limit costs. Most student societies have probably about £100 in their bank account. Are we asking a student society, which we have been told will be covered by this provision, to have a liability that is beyond what is in its bank account? Or are we saying that the student union should hold the liability for every single private student association?
Let me make the situation very clear. A student club in a university is a private association of private individuals, which sits under the university and chooses to affiliate to the union. In this Bill, we are proposing, as a Parliament, to include such associations and make their actions a liability of the student union. I know of no other organisation that is liable for the actions of a group of private clubs that happen to affiliate to it. It would be like making working men’s club associations or Conservative club associations—I cannot remember their detailed names now—liable for what happens in every single constitutional club or working men’s club in the country. It is absolutely bonkers, wrong and beyond the pale to engage in giving institutions this level of liability for small clubs that have very little to do with them, apart from an affiliation with them and the fact that one or two students might be members.
Another simple thing that could be done with the tort is to make it very clear that damages can be sought only if damage has been caused directly by the institution or the student union, not just by some of its affiliate bodies, over which it might have no regulatory role. The other way to make the tort sensible and limited is to put a cost cap on it. At the moment, unlimited liability means that institutions and student unions will settle, because there is a risk. If there is no cap, they cannot go to court and say, “We think we might have a bit of an argument here, and we think we have made best endeavours.” As the Minister will say, it is about best endeavours, and there is no case if the university has done its best and things still could not go ahead. That argument will be irrelevant, because if there is unlimited liability, there is a real danger that the university will say, “Okay, we’ll pay out £1,000 out here, and we’ll pay it out there.” Soon, those thousands of pounds will be tens of thousands of pounds.
That could cripple a student union in one go. I know that Government Members might not really understand this, but most student unions are small institutions that have only a few thousand pounds in their bank account. They do not even have £10,000. This idea that student unions are some big organisation that people can draw some sort of tort from is so out of touch with the sector.
It is so disappointing. I might disagree with the need for this measure to be in a Bill—I think that the same thing could have been done through regulation or by bumping up the Office for Students within its framework, but we can agree to disagree on that, and it is the Government’s right to introduce legislation if they wish—but bringing in a tort destroys the whole point of trying to secure people’s free speech. It will mean that student unions will say, “No, we can’t have your societies registering with us at all. We can discriminate against all, or we have to regulate every single thing that you do, so now you just cannot affiliate.” With all those student societies—including the student politics society that I will speak next week or the week after at Sussex University, or the Labour club at Bradford University where I plan to speak in a few weeks’ time—the universities will just say, “It’s too complicated. We’ll shut them down.”
It will be the same for Government Members. They consider free speech societies to be so important, and I agree; they are important for a student’s educational experience. Those societies and the Conservative clubs, or Conservative Future clubs—whatever the youth wing of the Conservative party is called nowadays; I can never keep up—will all be automatically disaffiliated. We have already seen that happen in Oxford; I am not making this up. Oxford University student union did it with the UN women’s society. The student union just disaffiliated that society, which still exists and still meets. The society can be as rude as it was with Ms Rudd, because it is no longer affiliated.
Higher Education (Freedom of Speech) Bill (Eighth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Matt Western
The lack of corporate knowledge or rock of collective experience that legislation should be based on is really surprising. I would have thought that such errors would be corrected and noted, and always and forever be related to anything in the higher education realm. I would have also thought that there were many in this place—there may be more of them on the Government Benches—who have been to the likes of Oxbridge or Durham and who would be more familiar with them. I do not mean that lightly; I think it is factually true. Personally, I did not attend them, so I am not so familiar with how those institutions work in terms of their governance. It is a simple point, but the error should not have been repeated.
On Second Reading, the shadow Secretary of State for Education, my hon. Friend the Member for Stretford and Urmston (Kate Green), forcefully made the point that numerous collegiate institutions affiliated to a central university would be outside the scope of the legislation in its current form. It is easy to think about existing Oxbridge-type institutions, but what about future-proofing the higher education sector and the changes that may affect affiliate and collegiate associations between higher education providers? That important point was picked up by Members on both sides of the House, and rightly so. It is good to see the Minister taking the feedback on board, and I hope that we will see some further evidence of that arising from yesterday’s sittings.
I have a small point to raise in relation to amendment 3 and an apparent exemption. The Minister spoke about the MCRs and JCRs at the likes of Oxford, but I do not know why they should be exempt. Any groups associated with a university or a higher education provider, whatever its size or shape, should be covered. If the legislation is honest in its intent, why should any be excluded from it? What justification could there be for preventing a student body at an Oxbridge college from being covered by the Bill?
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Is it not in fact troubling? The JCR system is operational at only a few universities, so a few universities will end up being exempt, or have student bodies that are exempt, while the vast majority will not. There is clear inequity there. Will it not prompt other bodies to be unnecessarily created, or reconfirm the unfair and often undeserved privileged status that some so-called elite universities have in this country?
Matt Western
I thank my hon. Friend for his well made point. It could indeed reinforce those existing privileges, or lead to a complete breakdown of the SU structures and change to institutional structures too, with disaffiliations and so on. We must be careful about the message that that sends out.
Michelle Donelan
I really am going to conclude now, as we must move on. Colleges have a vital role in the protection of freedom of speech, which is a fundamental value for all of society, but especially in our world-leading higher education providers, as I am sure hon. Members agree.
Question put, That the amendment be made.
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.
Lloyd Russell-Moyle
I am thinking not about invitations to external speakers but about students—students’ unions, where there are students of opposing views. The Bill says:
“the use of any premises occupied by the students’ union is not denied to any individual or body on grounds specified in subsection (4)”—
belief and so on. We need to be clear—perhaps the Minister can come back and clarify this on the record, which would help—that when we say “any premises”, we do not mean that the students’ union cannot decide which rooms are used. It is not that someone has the right to say, “I want to meet in the Christian prayer room,” or, “I want to meet in the Muslim prayer room to talk about things that would be inappropriate for those spaces.” Students’ unions must have the right to say, “Yes, we give you a free speech platform, but we decide where within our premises we do that.” Or sometimes they might say, “Not those premises, but we have other premises down the road that you can meet in.” The phrase “any premises” gives that indication. Often, chaplaincies use university premises.
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.
Matt Western
My hon. Friend is right: there is an issue about how this will work across diverse organisations in the sector. It is problematic because it means that yet again there is one rule for some and another rule for others. When we are discussing, debating and writing legislation, we cannot allow that difference to be compounded in it. It seems absolutely wrong.
I listened with real interest to the conversation that my right hon. Friend the Member for North Durham and his counterpart the hon. Member for North West Durham had about some of the issues that they face on a local campus regarding certain organisations. My right hon. Friend cited particular problems with some of the Chinese-based societies and how they might be acting. This is nothing specific about China—it includes other groups as well—but to amplify that point, if we are not careful such groups will ensure that they are extracted from the remit of the legislation so that they are able to act freely and beyond this law. I urge the Government to take on board this very straightforward, sensible, consistent and pragmatic new clause and include it in the legislation. It is really important, and I am sure that we will hear more from my colleagues.
Lloyd Russell-Moyle
The reason the new clause is important is that it would include all bodies that students might interact with in their role as students, to ensure that the promotion of freedom of speech happens. I will come on to rebut some points that I think the Minister incorrectly made about JCRs, but I first want to talk about the chilling effect. We have heard a lot about it, but if we are to believe what we hear about the chilling effect, it is because a culture has set in—particularly in the student body—in which it is allowed to run rife.
As we know, large parts of student activity are not necessarily in the classroom or lecture theatre; in fact, many students complain that they do not have enough lecture and seminar time. That is a regular complaint of students nowadays because fees are so high. We could have an interesting argument around what the purpose of university is—whether it is instruction, or to enable students to have a wider experience of intellectual endeavour—but I will put that to one side.
However, if the effect is to exclude a swathe of student life and to allow that chilling effect to continue to circulate, the whole point of the student part of the Bill is defeated. The education part or university part? Okay, that is fine. But with the student part, what will still happen, of course, is that students will still be afraid to speak up in lecture theatres, because in the non-regulated part of their student experience they will still not have the culture of free speech and they will be shunned if they do speak up. They will not speak up and feel like they can have their own views, because in one part of their life the chilling effect is not because of formal institutions, but partly because of informal cultures. And if we are not tackling those cultures in all aspects, then we will not deal with this issue. That is why, for example, this measure should extend to JCRs and MCRs.
Earlier, the Minister said that JCRs do not run their own booking systems. That is not correct for all JCRs. St Mary’s College at Durham University runs its own booking system for its JCR. When a student wants to make a booking, they go on to the JCR website and fill in a JCR form, and the JCR allocates a booking. With some of the Oxford colleges, students have to go into the Oxford system, for the whole university, and I have just found that out after 10 minutes of Google research into how the booking systems work. I am sure that a fuller analysis would show that the picture is more complicated, which is why we need to include JCRs and similar facilities explicitly in this measure, so that it is clear.
David Simmonds
It may be that there is a degree of misunderstanding. When I was a student at a college that had a structure with a JCR, MCR and senior common room, the president of the JCR was someone who would become a future Labour Member for Corby.
David Simmonds
He was a very good man, and is a good friend of mine. However, a key point about that organisation is that it is not autonomous. So although the JCR has its own bar, the JCR, the MCR and the SCR—the three academic components of the college—are all supervised by, and under the control of, the college’s governing body. So they are not autonomous.
Therefore, although it is the case that a student could book a room, rent a tennis court or something like that, if it is in the ownership of that JCR, the college—as a constituent part of a university—supervises and controls the JCR’s activities. So the JCR is directly accountable, as a part of the college and a part of the university, and it is not autonomous in its own right.
Lloyd Russell-Moyle
Neither are student unions. The Education Act 1994, which I am probably the only Member of Parliament to bang on about, because most MPs will talk about previous Education Acts, requires universities to supervise all student unions, just as they would JCRs. It requires universities to ensure that the finances of student unions are conducted fairly and to oversee the policy of the student unions, so that the universities fulfil their duties under other Education Acts, such as ensuring freedom of speech. So what the hon. Gentleman just said is the case with all student unions.
However, this Bill sees fit to mention student unions specifically, even though they are regulated—in terms of their policies, their funding, their use and their terms regarding discrimination—by the university and by the Charity Commission.
Emma Hardy
On the point about the regulation of student unions, it is worth pointing out that one of the criticisms of the Bill is that it introduces new and varied ways of regulating student unions, which, as we know, are also regulated by the Charity Commission. So some of the issues that we will seek to address as we get further through the Bill are about exactly which layer of regulation student unions are meant to follow first, because, as the Bill is drafted, the situation seems to be incredibly confusing.
Lloyd Russell-Moyle
That is quite right. One of the problems with the Bill, as my hon. Friend suggests, would be where there was an activity run by a student union, and someone felt that something had been denied and wanted to seek redress. But the student union is funded by the university, which most student unions are now—most do not rely on commercial income for the bulk of their income, because of the changing nature of students. The money is not gathered from bars that make a big profit. Gone are the days of NUS Services Ltd being the biggest beer purchaser in the country. My uncle, who used to be the director of Whitbread, used to love going to the NUSSL conferences and flogging cheap beer. Those days are just gone. The students union gets money and it uses the facilities of the university, but despite that we will now have a situation where someone could complain to the student union and complain to the university. That is very confusing, but it is not quite the point of this new clause, so I must redirect back to that.
David Simmonds
Without wishing to labour the point, I think the Minister is absolutely correct in the position she has taken. The junior common room is a component part of the college, so all its complaints processes and its supervision are inherent in its nature as a component part of the college. There is not a requirement to bring it within the purview of the legislation in the same way as there is for a student union, which is a separate institution with its own governance. It is already covered by its very nature.
Lloyd Russell-Moyle
That may be, but the Minister said that JCRs do not have control of their own bookings, their own policies or their own finances, and that is not quite true, if we compare them with student unions. I do take the hon. Gentleman’s point that junior common rooms are not automatically registered with the Charities Commission, for example, but I am not sure that, legally, there is anything preventing them from registering. That would be an interesting legal point.
Each junior common room, again, is slightly separate. We had a quasi-junior common room system set up at Lancaster University when that was created, to model the Oxford system, but it was significantly different, because the system of Lancaster University was different and was based in halls and housing, much of which is now run by private institutions based at the university campus because of the private finance initiative systems and so on that we have in many universities. Again, for those junior common rooms that are now often in private student halls because they had a residential-based junior common room system, how is it regulated? They are on campus, but they are private blocks now, run by private service providers. It would be clearer if we included everyone.
Emma Hardy
This debate highlights the wildly differing amount of resource that many of these different student unions and organisations have. It seems ludicrous that we would not directly include a JCR or MCR, with the resources and finances it has, but we probably will include, as I have mentioned before, my beloved Hull College higher education institution. It comes down to an issue of fairness. I respect the point the hon. Member for Ruislip, Northwood and Pinner makes, but if we are going to directly regulate one form of student activity within organisations, why not simply regulate and direct them all?
Lloyd Russell-Moyle
I will move away from the JCR, where we will maybe not seek agreement. I must admit I am not as au fait with the Oxford-Cambridge-Durham JCR system as maybe I should be, because I am a child of 1960s-based universities—quite literally; I went to a crèche in one—but there were, and are, equivalent JCRs run in different forms that do not follow the Oxford and Cambridge form, which therefore might not be included in this.
I come on to what I would call not a JCR, but a student space—student facilities provided alongside accommodation. Accommodation, even when it is on university campuses, which for the larger part it is not, is mostly run by private providers. The university will recommend that provider; it might even have a contract with that provider to provide a certain number of student halls. The facilities for those students—sometimes including the bar, and often including meeting spaces and recreational activities—are all provided by that private provider. Bookings are done by that private provider. The private provider might well organise a student committee of the residents to help to run that and facilitate it—in a way that is similar, I guess, to how a JCR committee would run those facilities. But they are not a student union; they are not a JCR in the Oxford-Cambridge sense. They are running a common room for students who live in those halls, but they would not be regulated by this provision, and the danger is that those spaces more and more often are being used to invite speakers, because students are self-organising, and of course people will go through all this stuff again—the ridiculousness of having to close curtains or shut down meetings which would seem totally legitimate. From a student point of view, they are using a student space that is designed only for their educational use.
Emma Hardy
Listening carefully, as I am, to my hon. Friend leads me to think, which I had not done before, about purpose-built student accommodation and the common spaces there. When I shadowed this brief, we had huge issues about students paying rent for things that they could not use, and that deepened my understanding that purpose-built student halls of residence are often provided by private providers. The question is whether this Bill would apply to their common room space as well. I would seek clarity from the—[Interruption.] The Whip just shouted something over to me that I missed. Perhaps the Minister could clarify the matter when she comes to make her remarks.
Lloyd Russell-Moyle
It might well be that the Minister can—[Interruption.] I am not sure that I am allowed to ask the Whip to speak, but he was muttering something under his breath that I did not quite hear. Let us say that we had another amendment, with slightly different wording, which was specific to, for example, student halls, places that are focused on students, places that the university authorises for students to be exclusively at—like student halls but also other student clubs. For example, I have known universities that, rather than having a student union-run bar, will make an arrangement with a commercial bar provider to provide a student-specific bar with student-specific meeting rooms. It might well be that an amendment that just ensures that the duty is extended to commercial providers would be better than this amendment. I am open to that, but we need something; otherwise there is a real danger, particularly with universities moving more and more to commercial partnerships.
Lloyd Russell-Moyle
I give way to John—my right hon. Friend the Member for Hayes and Harlington.
John McDonnell
I have never known him to be so affectionate. [Interruption.] I can’t help myself. The complexities of this are amazing. The hon. Member for Ruislip, Northwood and Pinner and I are both ex-Birkbeck. If someone joins the Birkbeck student union, they are then a member of the junior common room at the School of Oriental and African Studies and therefore have access to the SOAS junior common room bar, and can book it for meetings, invite speakers and so on. Again, I am not sure of the status or the independence of the student union at Birkbeck, or the status of the relationship with the SOAS junior common room, and therefore of the line of accountability for control of the premises. Unless the Bill is all-encompassing, it will introduce myriad problems.
Lloyd Russell-Moyle
We had the equivalent discussion with regard to academics; we talked about what would happen with a visiting academic. Yes, they would be protected in their own institution, but they would not necessarily be protected as a visitor, so that is why we put forward amendments. We have the same issues about, in effect, visiting students. This applies particularly to London. London University, as a federal university, will have overlapping student unions. Unfortunately, we have seen the demise of the University of London union, which is a great shame for the University of London. I think that, bizarrely, was done for political purposes. I am convinced that the last few presidents and leaders of the University of London union were too-left-wing rabble-rousers. It was fed up with it, and fed up with the London Student newspaper being too much of a pain, and it shut it down, so that is an example. Would this Bill prevent the shutting down of the University of London union, which was shut down in my—
The Lord Commissioner of Her Majesty’s Treasury (Michael Tomlinson)
On a point of order, Mrs Cummins. I wonder about the relevance of this. The hon. Gentleman will forgive me for having interrupted him earlier by muttering from a sedentary position, which I do not do now; I rise to make it perfectly clear. Is this at all relevant to the amendment or clause?
The Chair
I am sure that the hon. Member for Brighton, Kemptown heard that point of order, and that he will bring his remarks, which will be directed at the amendment, to a conclusion.
Lloyd Russell-Moyle
The point here is other student bodies. It is about when they are not directly a student union, which is what we are debating now. Our amendment would extend to all student bodies, whether or not they are directly part of the institution. That is why it is relevant to this clause. It seeks to cover an exclusively student body––not a general pub down the road––that has a relation just with students from that institution or from other institutions and that should also have some of these basic duties. If it does not have them, there is a real danger of loopholes here.
I will move on from talking about the type of provider, but there are other areas where this is relevant and important, such as non-affiliated societies. According to the lawyer we heard in evidence, the Bill would extend to the day-to-day activities of each individual society. I can understand saying to the student union, “You must allow the society to meet.” That is fine. This is about allowing societies to do that. But our understanding is that that society must fulfil the principles of the Bill. That would mean that there were two different legal frameworks for a non-affiliated society that was for all other purposes a student society in that university, and for an affiliated society.
If we go back to the essence of the chilling effect with an external speaker, a student does not necessarily know whether it is an affiliated or non-affiliated society. When an event is cancelled or a speaker is no-platformed or whatever we are worried about happening––again, I am not sure that the Bill is necessary, but these are the accusations and evidence that we heard––the danger is that the chilling effect still happens. The speaker is cancelled, the event is postponed, the society is shut down and students say, “I cannot talk about those things,” even though it might have happened in a non-affiliated space. It is important to extend that duty to all exclusively student bodies.
Emma Hardy
I hope that the Minister is listening, because we are trying to be as helpful as possible. Affiliated societies tend to rely on the assurance offered by being affiliated directly to the student union, and are therefore less likely to have huge sources of their own income. Non-affiliated student societies tend to have external financial support, from other countries or organisations. It comes down to equity and fairness, which is the point my hon. Friend is making about non-affiliated organisations with external support. I cannot see how the Bill would be relevant to them if they are not part of the student union, even though as my right hon. Friend––my hon. Friend rather––keeps saying, they are comprised almost entirely of students.
Lloyd Russell-Moyle
Exactly. We know that a number of these non-affiliated societies already exist. There is a particularly large network of Chinese student unions or Chinese student societies that receive large amounts of funding from the Chinese Communist party. Of course, their role is to be beacons of a chilling effect around campuses. They will have a property on the edge of the campus that might not be affiliated to the campus but will be open exclusively to students at that institution, and that institution will often advertise that society as the place for students to go. There are a number of ways around this. Again, I am not saying that the wording of the new clause is perfect, but we could say that the institutions would have to make it clear that such societies are not to be recommended unless they fulfil the general duties in the guidelines. We could say that institutions cannot recommend organisations that have not fulfilled the basic guidelines. That would include housing providers, but it would also mean that Chinese student societies that do not fulfil the duty could not be recommended as places for students to go locally. All of these are options that I urge the Minister to look at; otherwise, we have inequality, and there needs to be some balance.
The Chair
Before I call Lloyd Russell-Moyle again, although we want as wide and inclusive a debate as possible, I ask Members to ensure that interventions are interventions.
Lloyd Russell-Moyle
This is a significant new clause, and it is the only new clause relating to this matter. As people will know, I am particularly passionate about student unions and student representation, so I hope the Committee will forgive me for my detail and enthusiasm in this area.
There is another way that this issue could be dealt with by the Minister, if she does not want to accept the new clause but will accept something else. That would be to say that, although there is a general duty on student unions to ensure that all who wish to have access can do so, it does not regulate the detailed workings of student societies. In my view, that would be preferable. However, I am not sure it would necessarily fulfil the desires of some of the Members on the Government side. For example, it would mean that the UN women’s society at Oxford, which disinvited Amber Rudd and got the wrath of the national papers, would still be entitled to do that. We have to make a choice: either we want to allow societies to be bloody rude—I think it is extremely rude to invite someone and then disinvite them, and I have no truck with that—
Lloyd Russell-Moyle
I am terribly sorry. I did try to reconsider my language. It was a very rude thing to do. “Bloody” should be used only in the sense of the blood that runs through our veins, and nothing else.
It is very rude to invite someone and then disinvite them, and I do not condone anyone who does that, but we have to have equity. We either have to have all societies able to invite and disinvite people, and to be as rude as they want, or we have to say that it is not acceptable in an academic space because it creates a chilling effect, and then we have to say that no society can do that. We cannot have a two-tier system whereby we say, “If you happen to have affiliated to a student union or institution, you get it, but if you set up shop outside and everyone thinks that you’re that society, it is acceptable.” There lies the real danger, but there are options here.
Finally, I want to touch on the role of such unions as the Oxford Union, the Cambridge Union and the Durham Union. They have been real bastions of free speech, and I do not suspect that they would have any problems with the duties covering them, too. We all know that often they have been the ones that have continued to say, “We want all different people to come, debate and talk.” But we cannot create a law based on the long-standing position of the Oxford, Cambridge and Durham unions—to name the most famous but not necessarily best student debating societies in the country—because they have had an historical foundation, whereas almost every other debating union and society in our country is regulated because it forms an affiliated part of an institution. I do not think it is fair that a few ancient universities get different privileges from the newer universities. That is a dangerous division.
We need to ask whether a debating club made up exclusively of students is regulated or not. The Minister needs to make a decision. I hope that she will say that she has accepted the point. She may not agree with the detailed wording, but I hope she says that she will go away and make sure that the provision applies to either all student societies or none, and either all student spaces or none. That should also cover the commercial sector—bodies with whom an institution may have commercial relationships.
Michelle Donelan
Any transgression of freedom of speech and academic freedom goes against the fundamental principles of the higher education sector in England. It is therefore essential that our universities are places where freedom of speech can thrive for all staff, students and visiting speakers, so they can contribute to a culture of open and robust intellectual debate. Student unions provide support and services to their members and their universities. It is therefore appropriate and essential that the legislative framework is extended to cover student unions directly.
The extension of the duties imposed only on higher education providers will ensure that freedom of speech is protected to the fullest extent. This will ensure our universities can continue their long and proud history of being a place where views may be freely expressed and debated. Clause 2 will provide the legislative framework to extend these important duties to student unions at approved fee cap providers—a category of registered higher education providers. It will insert two new provisions into the Higher Education and Research Act 2017. Proposed new section A4 provides that student unions will be required to take reasonably practicable steps to secure lawful freedom of speech for their members and staff; for students, members and the staff of the provider; and for visiting speakers.
Matt Western
I thank the right hon. Gentleman for illustrating and articulating the point that I was alluding to, but was not being specific about. I am sure the Minister will have listened to the important point he makes.
I understand the Minister’s point about these groups being covered on campuses, on premises that the university may control, but how would that apply to, for instance, the private properties in Leamington that are used by Warwick University?
Lloyd Russell-Moyle
The Minister said in her useful intervention that if it is a university property, it will be regulated, but we are talking about private property that the university does not run but just directs students to. The university has a big signpost saying, “This is our accommodation,” but as soon as students step over the threshold, the university has no regulatory role, no delivery role—no anything role. What is provided in that property is student space, meeting rooms and accommodation. That is the nub of what we are trying to get to.
Matt Western
It is exactly that. I will not spin the wheels and repeat exactly what my hon. Friend has said, but perhaps the Minister would like to respond.
Matt Western
I understand the hon. Gentleman’s point. My colleague wants to make a short related point, and I will respond to both together.
Lloyd Russell-Moyle
This is the nub of the contradiction. That is why some of us suggested that the Minister could, to be consistent, remove student societies from the regulation. If students come together and organise a club that just happens to affiliate to the student union—even if they are totally autonomous and there is no role for the institution—the Bill regulates them. If they decide not to affiliate to the institution, but do everything else the same, the Bill does not regulate them. All I am saying is that it needs either to regulate them or to say that it regulates the student union but does not go down further to regulate the constituent parts—for example, a speech at the student Conservative club should not require monitoring by the office of diktats.
Matt Western
It is about affiliation, or the decision of groups to disaffiliate from the student union, as well as how private property will come into play. We have simply said that it should be all or none. We cannot have a two-tier system for this regulation.
The new clause is very simple and straightforward. It is pragmatic and would bring about sensible changes and protections, which is what I thought the Government were trying to do. At the end of the day, without such changes the whole legislation is exposed for what it is and will not deliver the protections that the Government believe they are going to introduce.
Clause 2, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Higher Education (Freedom of Speech) Bill (Seventh sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
My right hon. Friend reminds me that one of the first acts of the right hon. Member for Maidenhead (Mrs May) in 2010 when she became Home Secretary was to ban a march of the English Defence League in Bradford, not because she was a dangerous person undermining free speech, but because only nine years earlier, we had devastating race riots in Bradford that left a long scar on the community. I do not say that because I think there is a danger that the English Defence League will march through university campuses—although I do not rule it out. Because it was a public space, the Secretary of State had the ability in that instance to make a ruling that, even though what the English Defence League was marching about was legal in that it was not directly inciting hatred—many people say that it was doing so indirectly—there was a public order issue that she was concerned about. We need the ability in the code of practice for universities to look at that balance of ensuring public order and safety on their campuses.
Emma Hardy
I refer the Committee again to Sunder Katwala’s evidence. He said:
“I feel that an event at a student union, ‘No blacks in the England team—keep our team white,’ does not seem to be the kind of event that we want to protect, and yet that is lawful but reprehensible speech, which we want to stigmatise, even though it is free speech within the law.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 130, Q213.]
Unless we build some protection—some ability to consult—into the law, such events could take place. As our right hon. Friend the Member for Hayes and Harlington said, they would be likely to lead to confrontation.
Lloyd Russell-Moyle
I agree. I am sure that the Minister will point to clause 1 and proposed new section A2(2) of the Higher Education and Research Act 2017, which provides that universities must create a code of practice that considers the conduct required of people speaking at the university. She may say that that is sufficient, but given that the Bill provides for a code of practice, it is a perfect time to consider how it is drawn up. It is not the Opposition saying that there should be a code of practice or that there should be limits on how people behave in public meetings or even in academic practice; the Government have included the provision. The Government are saying that universities must have a system to determine and delineate.
However, we have heard that what management thinks is acceptable is often very different from what the academic community and students find acceptable. Management might be motivated by thinking about good PR and what looks good in their recruitment, whereas academics might consider what is important for academic rigour, creating new debate and so on. The amendments are important because they propose including students and staff in the discussion about and creation of the code, and therefore the voting to approve it. Without including them, there is a danger that the code of conduct will be written up and created by universities and do everything that some people do not want it to do.
John McDonnell
The point of including in amendment 74 a consultation process on amendments is that things change over time. There are bound to be amendments to the code over time, so is not it better to ensure that a consultation process is built into the drafting? We talked in previous sittings about how attitudes to LGBT issues have changed. That sort of thing has to be reflected in any codes in future. That is just a pragmatic approach to how we develop.
Lloyd Russell-Moyle
Amendment 75 allows for consultation on the uses of premises, and would ensure the issue was covered by the code. As he mentions, amendment 74 is about future amendments to the code.
The Education Act 1994, introduced by a Conservative Government, regulated how student unions affiliate and who can affiliate with them, and created a democratic element to that. The Act requires a certain threshold of student turnout, and regular student polling to ensure that student unions do not affiliate with organisations that the student body might no longer feel it appropriate to affiliate with. That is why, up and down the country, student unions must have regular ballots on whether they should continue to affiliate with the National Union of Students. Some student unions—very few—choose not to affiliate with it. Southampton was one in my day, although it might have affiliated since; I cannot keep up with these things. Those requirements are quite right.
The procedures introduced by the Bill, particularly about a code of conduct that will regulate who can speak on campus and how, need to have that democratic aim. I would be more than happy if the Minister said, “This isn’t quite the wording. We want to incorporate some of the wording from the 1994 Act, as there are some parallels.” That would be great. However, there needs to be an appreciation of how students and staff will be balloted on both the use of premises and, more broadly, on the creation of the code of conduct and any amendment of it. Otherwise, there is real danger that the code will be written for a university’s public relations purposes, rather than to ensure a university’s academic rigour.
Fiona Bruce
I have listened to the debate, and I am troubled by amendments 75 and 76. I believe I heard the the right hon. Member for Hayes and Harlington say that the best form of consultation is ballot. I would normally construe that to mean a secret ballot. I am happy to be corrected if I misinterpreted his words. The whole aim of the Bill is to promote and secure freedom of speech—to open up dialogue at universities. We could end up with the almost bizarre situation in which people could vote in a secret ballot for what witnesses described as the monoculture, or even vote a certain way because of prejudice against a particular speaker, without having to give any reason why. I strongly believe that if the decision is made not to allow a speaker, or not allow the use of premises, those making that decision should publicly justify it; that goes to the heart of the Bill.
Higher Education (Freedom of Speech) Bill (Sixth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Fiona Bruce
I rise to speak to amendment 59. Freedom of speech and academic freedom are the lifeblood of higher education. Without the protection of these freedoms, and recognition of their value to society, universities risk losing the ability to be centres of intellectual debate, where prevailing norms can be challenged and where academics and students are able to pursue unconventional lines of inquiry. This is an issue of critical importance. Universities function as critical influencers across society. The students of today will be the leaders of tomorrow, who will shape—and hopefully improve—society as a whole.
The Government have rightly sought to ensure that the meaning of academic freedom is clarified in the Bill to include the ability of academic staff members to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of being adversely affected, either as a result of losing their jobs or privileges or reducing the likelihood of future promotions or other employment opportunities.
However, we heard in evidence from several witnesses that academic freedom is a right that needs to exist to protect not only academic staff but students, who are often more vulnerable to pressure and self-censorship. They may worry, for example, that they will be marked down and that their expression of unpopular or unfashionable views will have an adverse impact on their educational progress.
I will give a few examples. In his evidence, Professor Biggar mentioned a junior research fellow who would attend one of his events only on the condition that he was not photographed or named. He feared there would be repercussions for his present academic pursuits and future career if he associated in any way with Professor Biggar. That was a junior research fellow. How much more a student, who may feel a greater pressure to acquiesce to the prevailing culture and refrain from rigorous academic pursuit to ingratiate himself with his academic supervisor?
Another, deeply concerning case in the press last year involved Julia Rynkiewicz, a 25-year-old Catholic midwifery student, who was suspended from entering her programme’s hospital placement phase after her university learned of her leadership of a pro-life student group. She was subjected to a four-month fitness to practise investigation in 2019. Ultimately, she was completely vindicated of any wrongdoing and received an apology from her university, but she had already lost one year of her academic studies, and was, understandably, deeply distressed.
In their evidence, Professors Goodwin and Kaufmann were clear that the protection of academic freedom should apply not just to established academics, but to doctoral students. Indeed, their evidence was that students are the most likely to self-censor. Students do not want to irritate their colleagues or suffer reputational or educational consequences that will harm their career prospects. Professor Goodwin told the Committee:
“we know clearly from the King’s study…that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q186.]
My concern is that the very welcome clarity in the Bill concerning the protection of academic freedom for staff will function as a double-edged interpretive sword by excluding academic freedom for anyone who is not a staff member. Without the express inclusion of students, there is a risk.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The hon. Lady is making an important point for research students. I am just not quite sure how these points relate to all taught students. Being a taught student sometimes requires instruction in order to learn the basics. Although we like to think higher education institutions are purely about thinking and knowledge generation, the reality is that the first year and the foundation years run out of universities are instructional and directive. That is important because students have to understand the basics of current academic knowledge before they can challenge it. I am just worried. Does the hon. Lady see the amendment including instructional elements for students so that they could reject information about, say, how lenses work, if they are studying to be optometrists? Or does she mean research students and other students involved in the creation of knowledge? Would an amendment that explicitly said “students involved in the creation of knowledge” therefore be better?
Fiona Bruce
I hear what the hon. Gentleman says. I would like to think that the very concerning case of the midwifery student is a case in point.
Matt Western
Yes, learning—going through that development. That is why students are attracted to going into higher education. It is to understand about the process of that academic rigour and methodology.
Lloyd Russell-Moyle
Some of the evidence that we heard from a number of the Government and Opposition witnesses was that, actually, part of the problem is the commercialisation in higher education, whereby students see themselves as customers and consumers and then demand more and demand their rights. There are some advantages to that, but there are clearly some disadvantages to it. There is a danger, is there not, that if this were used in the consumeristic mind of certain students, it could prevent the instruction of certain basics that students must accept to progress? Students could claim, “You’re not letting me progress even though I reject the way light moves through a lens.” It is perfectly legitimate for an academic to do that at a higher level, but if someone is teaching optometry, they require the student to accept certain basic principles to be able to progress and to look into people’s eyes. There is a danger that, with a consumeristic mind and with a more litigious mind, some students might end up shutting down academics and actually stopping them doing their instructive part rather than their research part.
Matt Western
I thank my hon. Friend for his, as ever, valuable contribution—and specialism of optometry. I always try to look through a rose-tinted lens. More seriously, the point he makes is made very well—[Interruption.] I missed that point. To be serious for a moment, my hon. Friend’s point is well made. It is about consumerism. I guess one of the things that motivated me to get into politics was that, as a kid of the 1960s and ’70s, I enjoyed education and access to all sorts of things without the privilege of money. We need to row back on how consumerism is becoming so corrosive of relationships between all sorts of authorities—I am not talking only about universities. How people view public service, in whatever manifestation, seems somehow to be about getting one’s money’s worth, whether on council tax or, in this case, educational fees.
John McDonnell
There are even elements in science itself where there are really contentious issues and we know that some scientific theories are being brought forward for political motives—we have seen that around race in the past, about genetics linked to racial groups and so on—but an academic would throw the whole essay out on that basis. There are some really contentious issues here.
The hon. Member for Congleton is right to point out the issue of non-inclusion of students, but we must find a definition that enables us to ensure that there is a level of academic expertise at which the student should be operating, which qualifies that person to have academic freedom and the right to free speech. I think that is very difficult.
To come on to the point made by my hon. Friend the Member for Brighton, Kemptown, in academia, people are now extremely litigious. They will challenge individual gradings or the award of the degree classification. What we often find now—ask any university—is that a large amount of money and time is being spent on defending the awarding of degrees due to this sense of being a consumer, of buying a product. It is as though they are challenging the quality of the degree awarded as though it were a washing machine. There is a real issue here.
Lloyd Russell-Moyle
My right hon. Friend makes some good points about the litigiousness, but also about the ability that people have to challenge the status quo to create knowledge. That is when they then take part in research, and that is when they then take part in the production of knowledge.
For undergraduates, however, and even sometimes in taught masters programmes, particularly for professional qualifications, it is about instruction. Very often, in that purpose of instruction, students should be able to make an argument that is not their own. Their teachers want to say to them, “If you just make your own argument, I am going to mark you down.” We talked in the evidence sessions about debating societies. Teachers want to say to their students, “If you produce an essay which is your own argument, that is not going to be highly regarded. I want you to produce something you might vehemently disagree with, but that is the point of this exercise.”
There is a danger that, if students are given personal academic freedom, they will say, “Well, that is not my view. I have got an academic freedom to express what my view is.” The distinction must be between taught and research, and between the creation of knowledge and instruction. The flipside is a researcher or university member of staff enrolling in a course for academic interest, and then taking on a different role as a student and being instructed. The freedom does not stay with the person; the freedom is the role that the person is undertaking at that moment.
John McDonnell
Right, I am waiting for the Minister to say that this will be covered in guidance. On this occasion, I might well support her, because it is complicated. It is a combination of the level of the degree and the content and status of the research. In some instances, there will be very specific examples and we will see it playing out in individual cases and challenges setting a precedent. If we are not careful, I can see the vista being lawyers making a huge amount of money at the expense of universities.
The hon. Member for Congleton has raised a genuine issue and we should address it with subtlety, recognising that it could open the doors to a whole range of activities that would burden universities and confuse the individual academics and students themselves. I look forward to the guidance.
Sir John Hayes
I will in a moment, but now that I am flowing poetically I do not want the hon. Gentleman to break into the stanza. [Interruption.] All of these things are a matter of opinion, John. There is also a point about what I might describe as top-down pressure. We know—Members who have been involved in higher education, including many on this Committee, will be familiar with this—that there is often a tension between university management and particular university departments; between the academic staff and the senior management team who are often long detached from their original academic roots. It is a concern that sometimes university authorities will instruct academics to teach particular things, possibly even in a particular way. Defending the integrity of the people at the academic coalface is really important, and that is what the second part of my amendment seeks to do.
Sir John Hayes
To whom should I give way first? I am terribly old fashioned, so I shall give way to the hon. Lady.
Sir John Hayes
I am pretty certain that the hon. Member for Brighton, Kemptown is going to make a similar point, but I will let him do so when I give way to him.
Of course, the hon. Member for Kingston upon Hull West and Hessle is right that it cannot be a free-for-all. Every academic knows what their professional duty is: to transmit a body of knowledge, but also to stimulate a range of ideas, to stimulate people to think freely and openly about the subject matter, which they are missioned to teach and their students are missioned to study. I take the hon. Lady’s point. The amendment is not saying, “Do what you like and it really does not matter”, because in the end academics have a responsibility to their students. That is an important professional duty as well as a responsibility. We must not be too permissive in our approach to what academics can or cannot say and do. However, I am just as concerned—in fact, I am more concerned—about the character of leadership in some universities.
We have talked informally outside this Committee about governance and accountability within universities. When the Minister has a spare moment after getting this Bill on the statute book and is looking for her next Bill, I think that all of us across this House, including those on the Front Bench, should spend time reflecting on and considering the very important issue of university governance.
Lloyd Russell-Moyle
I broadly agree with what the right hon. Gentleman says and with the subsequent amendments, some of which say similar things. My problem is around academic rigour, which universities must ensure is provided. Would he address the issue as it relates to basic instructional courses such as optometry, or any of the life sciences. I mention optometry because the University of Bradford has a very good optometry department. I have mentioned my connections with the University of Bradford, the University of Sussex and University and College Union before, and it is on the Register of Members’ Financial Interests. It might be dealt with better in regulation than on the face of the Bill, but might there be something to be said for the freedom of the academics to sit around the table and work out their plans without interference from management, rather than the freedom of an academic to decide what they do?
I put that forward because academics sit down together and work out a course of teaching, so they have a duty to sometimes challenge each other and say, “You need to teach this. You might not want to, but we need to get through it.” Could the wording around that be better? It would also address some of the right hon. Gentleman’s points on how academics have been removed from the management of course design over the years, and could restore their role at the heart of course design and teaching and learning. That would be a move forward.
Sir John Hayes
The hon. Gentleman is of course right about the changing balance of power within universities. Many senates no longer play the role they once did routinely. If anything, universities have become more pyramidical in their management structure. It is and always has been important to ensure rigour in the disciplines he describes, and validation of courses, including external validation, is an important part of assuring that rigour. I have been involved in that myself.
I take the hon. Gentleman’s point, but my worry is that these days there may even be ideological top-down instruction, so that one has to sanitise one’s curriculum in a particular way. It might be politically motivated, but it might be, as the right hon. Member for Hayes and Harlington implied, about all kinds of other things. It is not all about politics; it is sometimes about non-political orthodoxies. The whole point about academic freedom is that one can challenge what are assumed to be a priori assumptions. That is what the greatest among us have done over time.
I think I can find further agreement with the hon. Gentleman. The wording added may require further work to reflect the sentiment he articulated, but my purpose in tabling the amendment is to get the Government to think again about the relationship between freedom of speech and academic freedom, which populated quite a lot of the evidence we received from witnesses. The concern that we, across the Committee, and the witnesses shared is that academic freedom should, of itself, be placed at the heart of the consideration. The Minister has been reassuring about that, and what she has said so far publicly and in Committee encourages me, but I wonder if we need something in the Bill to reinforce the point.
Matt Western
My hon. Friend is quite right. We have not proposed anything that necessarily refines that. At this stage, I think, it is important to remove the words, and minds greater than mine—perhaps in the House of Lords—may come up with an alternative. It is a really important area that needs to be defined.
Lloyd Russell-Moyle
My hon. Friend has already developed the phraseology and wording in his comments about research and academic interest. Were a matter within an academic’s research and interest areas, that would be their definition. It would be broad enough; it would also go to amendment 80 and the right to teach in areas of their academic interest and research, and resolve my concerns about that amendment. It would be good if the Government were to reflect on that phraseology.
Michelle Donelan
Sorry; I commit to taking away the topic of field of expertise, which is covered in amendment 28, as well as amendment 80.
I will outline the reason why the topic is in the Bill in the first place. Academic staff will have extra protection under the Bill, in addition to the more general protection for freedom of speech. That is the reason that the additional protection only covers speech where an individual has expertise. For example, a maths professor should not have greater protection than a non-academic colleague or a student when they are speaking about matters unrelated to their role as an academic, but in that case the professor would still benefit from the same freedom of speech protections.
Lloyd Russell-Moyle
I understand exactly what the Minister is trying to say, although there is some advanced maths that could move into philosophy and so on, depending on how deep we want to go. It is about the word “expertise”. That is why I put forward the idea of academic “interest”, which is a much lower bar and means that someone just needs to demonstrate that they have had an academic interest or research in that area. Would she go away and think about the bar that the word “expertise” sets—who proves that expertise?—compared with other qualifications that might fulfil the Minister’s purpose, but give people the right to explain a broad range of academic interests?
Michelle Donelan
I thank the hon. Member for that helpful point. I commit to taking away that very topic.
Michelle Donelan
Two points are being made. One is about the right to a platform, whereby an individual can, in essence, demand to speak at a university. In no way does the Bill give anyone the right to a platform.
The second point that the hon. Member is referring to is if an individual is invited by a society, a union or a university itself. With regard to that, freedom of speech is not an absolute right; it does not include the right to harass others, or incite people to violence or terrorism. The Bill requires reasonably practicable steps to be taken to secure freedom of speech within the law. That is the crucial point. The Bill is not about unlawful speech.
Lloyd Russell-Moyle
But the Bill does require student unions to allow students to set up societies regardless of their viewpoints; such societies must be able to be registered and cannot be denied. There could be a group of three students—three deluded, holocaust-denying students—and the student union would not be able to deny them an affiliation, according to the Bill, and they would be given a right to speak in the student union. I am just trying to be clear, especially because of the tort element. That is the particular problem here, because that is not in regard to the Office for Students; it is separate to the courts. If there is not a protection here in the Bill, can the Minister give assurances that no group of three students can take a student union to court for tort, for being denied a room to preach genocide denial?
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Similarly, I am an honorary fellow of Birkbeck.
Lloyd Russell-Moyle
I have a professional connection with the University of Sussex and the University and College Union, and I am a trustee of the University of Bradford union.
Matt Western
I wish to register that my wife works at a particular higher education provider.
Higher Education (Freedom of Speech) Bill (Fifth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Michelle Donelan
I refute the point that everything in the evidence was disregarded. The Government reserve the right to stick by their opinion, which is that this Bill will protect academic freedom and freedom of speech. Academic freedom is a subset of freedom of speech.
Michelle Donelan
If I could continue, the Government recognise that a provider will be best placed to consider, on a case-by-case basis, how to fulfil its duties under the Bill while also meeting its other duties, including those under the Equality Act 2010 and the Prevent duty. The provision in the Bill requires reasonably practical steps alongside the particular regard duty, which allows for the balancing exercise to be properly done.
Once the Bill has completed its passage through both Houses, I expect that the new director for freedom of speech and academic freedom will issue comprehensive guidance to the sector on the expectations of the Office for Students. I am confident that providers will be well equipped to strike an appropriate balance when exercising their various duties. I trust that the Committee members are reassured that this amendment is not necessary.
Matt Western
I thank the right hon. Gentleman for that intervention. I genuinely respect him and would like to accept his point. However, I have profound concerns over the direction of the Office for Students and its leadership. He said that generally these things are put in place, but “generally” is not good enough for me, and I do not think it can be for any of us today.
Lloyd Russell-Moyle
Most pre-1984 universities have a reference in their charter to academic freedom as opposed to freedom of speech, and most post-’84 universities have it within their other governing documents. Is it not therefore important that the wording in the Bill reflects those governing documents, or at least ensures a clear dovetail, rather than leaving it ambiguous, which might cause greater problems, particularly if, as we know, the charter is used quite often in employment law and tribunals? These provisions, according to evidence that we heard, need to dovetail better into that process.
Matt Western
My hon. Friend is right. His knowledge and experience in these matters greatly exceed mine, so I thank him for bringing that to the table.
The Minister said that she would expect the guidance to include academic freedom. Again, I cannot accept that “generally” or “expect” is good enough when it is so fundamental, vital and central to the work and role of our higher education institutions and academics. As my hon. Friend said in his intervention, the words “academic freedom” are written into the governance of universities and higher education institutions.
We are here to be constructive. I cannot stress that point enough. We accept that there is a huge majority on the Government side. They can do as they wish, but we are here for the coming four days to be constructive and to try to make the best of what we think is very poor legislation. I wish to press the matter to a vote.
Question put, That the amendment be made.
Lloyd Russell-Moyle
I understand exactly what the Minister is saying, and the difficulty of requiring a university to secure premises that it might not directly run. The difficulty is that more and more higher education provision is done at a distance from the main location of the university, so while the university might make reasonable adjustments to provide that speaker or activity in its central location, that has the effect of denying a voice to speakers in a location that might be hundreds of miles away, and to students and staff who may never be able to access it. Making sure that there is a reasonable duty regarding premises that are “occupied by” a university does not specify a particular room, but does give an inference that the wider premises and the area occupied must be provided for. I understand that the wording of the amendment might not be the Minister’s preferred wording, but is this something she would come back to in order to ensure that there is a location-based understanding of this, as well as an ownership and long-term lease-based understanding of it, so that students who might be studying 100 or so miles away from the central premises of the university have in their locality the ability to hear and host external speakers, for example, or have lecturers who are able to have academic freedom?
The Chair
That was a very long intervention, which I allowed in order to facilitate debate, but I do not want that to be a precedent for the future.
Charlotte Nichols (Warrington North) (Lab)
I want to follow up on my hon. Friend’s comments about what the Bill means in relation to the Equality Act 2010. As someone who is Jewish, one of my key areas of concern is what it would mean for Jewish students—an issue I have raised a number of times throughout the passage of the Bill. I have raised concerns about what it would mean for Holocaust denial, after the Minister appeared to suggest on the radio that that would be protected speech under the Bill. In fact, we heard from witnesses such as Professor Goodwin that he would invite a speaker from the National Front or the British National party, if they were available, to address his students. We have heard evidence that that is what some academics would seek to do, if the Bill were in place.
We need only look at the British National party. Nick Griffin, along with a number of members of the British National party and the National Front, has been repeatedly prosecuted for hate crimes, incitement to racial hatred and Holocaust denial. Inviting someone with those sorts of views to address students on campus—for example, in a politics lecture—might mean someone like Nick Griffin laying out all the reasons why he believes that anyone who is not white British should be repatriated to a different country, why he believes that the Holocaust did not happen, and so forth. Clearly, if he made those remarks outside a university setting, in a discussion that was not about an academic or scientific matter in a higher education setting, he could be prosecuted for that, as he has been repeatedly.
The amendment would allow a loophole for Nazis, fascists and people who hold absolutely objectionable views. As we have heard, those people have, in the public interest, always had their right to absolute freedom of speech, qualified by that public interest, libel laws, the Equality Act 2010 and so on. The unintended consequence would be to drive a wedge in the Equality Act. Our university campuses would become less safe spaces than the street outside them, where those rules would still be in place.
Like my hon. Friend the Member for Kingston upon Hull West and Hessle, I have nothing but respect for the right hon. Member for South Holland and The Deepings, but if his amendment formed part of the Bill, it could have really adverse consequences.
Lloyd Russell-Moyle
I became quite fond of the right hon. Member for South Holland and The Deepings during the evidence sessions, and during our discussions about the necessity for broader academic reform in our universities and about how tenure works. There is a lot of agreement on that. However, for three reasons, I am worried that the amendment creates an outcome that he is not actually seeking. First, Professor Stock described how her academic freedom and free speech was not limited just by—I would argue not at all by—the university and the institution, but by the harassment from colleagues, students and the academic community more broadly. They called her names such as TERF, which she found objectionable, and said that she was not academically rigorous. In effect, she described what we would call harassment, because she was exerting her right under sex protections to talk about sex, and they were harassing her for that. I disagree with her views on the sex agenda, but it is her right to express them without fear of harassment.
This amendment would be a harasser’s charter—a charter to harass her outside the university, making snide remarks online or in academic forums, degrading her and ridiculing her. We heard in the last evidence session—it feels like yesterday—how many academics feel mocked and ridiculed by their colleagues because of their activities, and that sometimes leads to harassment, because they have protected characteristics. This would be a charter for those academics to be harassed out of their practice. That would be very worrying. I do not think that is what the right hon. Gentleman wants, but I am worried that is what the amendment would do.
We also heard from Trevor Phillips, with whom I disagree on a number of matters, who said that the importance of the Bill is not about directing details but empowering a regulator to provide guidance about where these things need deliberation. Bizarrely, whereas the Minister has previously said, “This needs to be dealt with by the Office for Students”, and I have disagreed, on this issue I would take the line that the Minister has taken: this is an area where we need decent guidance from the Office for Students to ensure that universities are balancing that duty.
The right hon. Gentleman is right that sometimes universities incorrectly interpret the balance of where they should be on harassment and academic rigour. The clunky nature of this amendment might not fix that, but decent guidelines will change the way universities work, so I hope the Minister will say that she will push for them.
Sir John Hayes
The hon. Gentleman is taking us towards some sort of Hegelian synthesis of my intention, which is to ensure that, as Professor Biggar said, universities do not over-interpret their duties and define harassment so broadly that it closes down debate, while ensuring, on the other hand, that universities do the right thing, in the terms that the hon. Member for Kingston upon Hull West and Hessle was describing, in protecting people from the kind of activities that the hon. Gentleman spoke of. Maybe, as he says, that is best achieved in guidance, because he acknowledges that there is a tension, or a risk of it, as I tried to point out,.
Lloyd Russell-Moyle
The whole Bill is full of tensions, which is why many of us would say this is not best put in legislation; instead, it could be done through other mechanisms, such as guidance and support for universities, given that we already have the Office for Students. That is the Opposition’s whole argument on whether we need a Bill. However, we have a Bill, so we need to create a framework to ensure that those tensions are dealt with sensitively.
John McDonnell
May I add to my hon. Friend’s note of caution? In 2010, when the equalities legislation was introduced by the then Conservative Government, there was extensive debate. He will remember the debates around what constituted an appropriate joke, and whether that was encompassed in legislation. We now have 11 years of experience of that legislation, and precedent has built up, after court actions. I am fearful to tread into an area where I think we have a settled opinion at the moment. This amendment could be counterproductive, because it would reopen that whole debate, which I thought we had comfortably settled.
Lloyd Russell-Moyle
I totally agree. Again, that is the importance of the guidance. The Office for Students can sit down with other regulators and work out a settled opinion, which might be that there is not enough guidance for universities to interpret things correctly.
The right hon. Gentleman has mentioned a number of times the no-platform policy of the National Union of Students. That is a policy that bans National Action, a proscribed, illegal organisation in this country. It is a policy that bans Hizb ut-Tahrir, an organisation that is prevented from entering campuses under Prevent. It bans only a small handful of organisations—literally fewer than 10.
Lloyd Russell-Moyle
Six—I thank my hon. Friend. Those bans usually have national governmental guidelines behind them, because the organisations are proscribed under Prevent or under other duties. We need to be careful when we lambast the no-platform policy of the NUS, because it is a policy that furthers Government policy and guidelines for keeping our campuses safe. Sometimes the phrase no-platforming is used, but it is actually a policy that is implementing Government guidelines.
Sir John Hayes
Of course the hon. Gentleman is right that, where organisations are proscribed or by law prohibited from operating or existing, they should not come. Furthermore, it may be that other organisations are not welcomed into particular forums, but he will know that, over the years, no-platform policies have been used in all kinds of different institutions to prohibit a much wider range of outside speakers, including in some cases speakers from the Conservative party and other perfectly legitimate and indeed noble political organisations of that kind.
Lloyd Russell-Moyle
In a previous sitting, the Chair mentioned facing this issue when he was a student. That is exactly why the NUS has laid down a national policy that refers to six named organisations—so that individual student union branches or universities cannot erroneously put forward others. The right hon. Gentleman’s exact concerns have been implemented by the NUS, which has listed the organisations—only six, and all backed up by national guidelines. An individual student union cannot just say, “We do not like that Conservative,” or “We do not like that academic.” I agree with him that there is concern that that has been misapplied in the past. That is why we now have national guidelines. Again, that is an example of where these things are best settled under guidelines, through negotiations with the national unions and through the regulator, and not put in legislation, which might lead to unforeseen circumstances.
Michelle Donelan
Amendment 29 seeks to expand the notion of who is a member of a higher education provider to include affiliated academics and other individuals holding academic positions. Amendments 55 and 56 seek to extend academic freedom to members and visiting academic speakers.
Clause 1 will insert part A1 into the Higher Education and Research Act 2017. Part A1 (1) and (2) require registered higher education providers to take “reasonably practicable” steps to secure lawful freedom of speech for their
“staff…members…students…and…visiting speakers.”
Turning to amendment 29, we have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, because not all of those who work at a provider have an employment contract or employee status. To be clear, expanding the protections to these individuals is a key aspect of the Bill and ensures that all academic staff have access to redress. It is important to note that the term “staff” is already used in the current definition of academic freedom in the Higher Education and Research Act, so it is an understood term in this context. Similarly, “members” is a commonly used term in the sector, as well as in legislation. It is included in the existing provision in the Education (No. 2) Act, which is carried over into the Bill to ensure that individuals who are currently covered do not lose that protection. Members of a university include members of the governing council, for example.
I now turn to the proposed extension of academic freedom to members and visiting academic speakers in amendments 55 and 56. As already defined in the Higher Education and Research Act and strengthened in clause 1, academic freedom is necessary for academic staff who may be at risk of losing privileges and jobs or with reduced likelihood of securing a new academic role because of their views. Visiting academic speakers will therefore have academic freedom in relation to their own universities. A visiting speaker who speaks controversially at another university will have the benefit of the provision at their own university, but they do not need it at the university they are visiting, as they do not have a job or promotion prospects at that university that they are at risk of losing.
Lloyd Russell-Moyle
Very often, an academic seeking promotion has to demonstrate that they have published work and have spoken at an event external to the institution that they work in. If they are unable to prove that they have spoken at a number of events, they are unable to secure promotion. Therefore, the protection that the Minister talks about is a protection in the institution, but if academics are not protected in external institutions they will not even be able to apply for promotion. Does she understand that there does need to be an extension, and would she consider how that could be done?
Michelle Donelan
Importantly, they will be covered by the overarching protections in relation to freedom of speech when they speak at other institutions. As for members, they are specifically covered under proposed new part A1(2). Strasbourg case law has confirmed that, in determining whether speech has an academic element, it is necessary to establish whether the speaker can be considered an academic. To the extent that a member of a university could also come within the category of academic staff will be a question of fact. Quite simply, if they are covered they will have academic freedom as defined in the Bill. I hope that reassures members of the Committee that these amendments are not needed, as the members and types of academics mentioned can already be assured that they will be protected under the Bill.
Higher Education (Freedom of Speech) Bill (Fourth sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q
Professor Grant: That is an excellent question, and the short answer is no. When we did the survey, we went out to the general public and asked them a range of questions on their attitudes to free speech, and they were broadly the same as students, but we did not ask them that question about self-censorship, so I think it is an entirely legitimate question.
If I may, I just want to pick up on the previous comment, because I visited the University of Chicago a number of years ago, which had set up a programme to teach high school students about free speech, how to debate effectively and take contrarian views, and about the resilience needed to hear something challenging. I absolutely agree with Paul that in universities we could do more to help our students understand what debate is about, how at times it might be painful and the resilience needed to engage in some of that debate.
Lloyd Russell-Moyle
Q
Paul, I want to ask you about who takes responsibility for these duties. The Bill is quite unusual in putting the duty on both the institution and the student union, whereas the Education Act 1994 puts the responsibility only on the institution to require the student union. Does that duality of responsibility clarify the issue or, given that most student unions are probably using university premises and university money, does it muddy the question of who will then be responsible for reporting on these issues?
Professor Layzell: I think the existing position is ambiguous and difficult for the very reasons you mention. There is often a joint process going on. Universities are often responsible for health and safety, security and just managing a significant gathering, yet the event might be organised by the student union. I think that we get around that by having codes of practice and clear sets of responsibilities within institutions on who should be doing what, but it is a good point.
Lloyd Russell-Moyle
Q
Professor Layzell: I think we would be reluctant to over-specify the mechanics. Good relationships between universities and student unions are absolutely essential to make this work. Encouraging that would be good, but as to specifying particular mechanisms or ways of doing it, we all work in slightly different ways and have slightly different student unions, so I think we would need some flexibility.
Lloyd Russell-Moyle
Q
The Chair
May I ask you to keep your answer brief, Professor Layzell, because two more members of the Committee have indicated that they want to speak?
Professor Layzell: There is a concern around the litigation and making both student unions and universities more risk averse, without the sort of protections that we put in our written submission.
Fiona Bruce
Q
Danny Stone: It depends whether the Bill has the amendments in it that I have proposed or not—[Laughter.] The truth is that I do not know, but I can tell you that the Union of Jewish Students asked me to raise specifically that there has been disruption of where Jewish students who have a particular Zionist identity are looking to host Israeli speakers. Those talks, in numerous cases—I have 20 different examples in front of me—have been interrupted and the students have not been able, in their opinion, to host people with views that they want to be shared.
These are not controversial things; it is Israeli students and a group of Israeli minorities cancelled at short notice. There is a concern in that regard about being able to have a well thought through, rational and calm discussion about what is happening in the middle east, and whether that might be impacted. The UK Lawyers for Israel have raised that in front of the Joint Committee on Human Rights. I thought that concern might fit in answer to your question.
Lloyd Russell-Moyle
Q
Danny Stone: I will give you another answer about complexities. In some instances, that bureaucracy can be helpful. We worked on the Manchester guidelines, which meant that when a speaker was coming to campus it was advertised in a bar so that students could raise concerns if somebody was coming and they thought that there would be a problem. Then the university could put in place various measures to ensure that that talk went off without any problem. Perhaps the event was recorded; perhaps the speaker was asked to undertake to uphold the various principles that the university has or its requirements in respect of the public sector equality duty. Those things are helpful, so I do not think all bureaucracy is unhelpful, but I do not know yet; I suppose a lot will depend on how this is enacted and whether that may cause bureaucracy. Certainly as a student, the less paperwork I could fill in, the better.
Lloyd Russell-Moyle
Q
Danny Stone: The truth is I do not know how this will play out. I do think there is a difference between people in public life being on panels and deciding their engagement with particular speakers—and institutions. I do think there is a qualitative difference. I do not know—it may very well. That is why, in all these cases, whether it be in relation to the director of freedom of speech for the OfS, the code of practice or anything else, that balance and the reference to complexity and competing freedoms will be hugely important in trying to get the balance right.
Lloyd Russell-Moyle
Q
Hillary Gyebi-Ababio: That is an important concern to raise: the inadvertent or indirect—well, I do not even know whether it is indirect. I think a direct unintended consequence of this Bill could be that student unions would become more risk averse to inviting speakers, because they just cannot handle the bureaucracy; they just cannot handle the prospect of having to pay lots of money in the case of litigation. They are having to worry about doing what they already do well and facilitate very well, in a way that is much more complicated and adds so many more layers of process to what they already do very well, in order not to face the consequences of this Bill. If we are going to think about bringing student unions into this duty, we have to think about the fact that they already have regulators, regulations and provisions to make sure that freedom of speech is facilitated well and strongly on campus. I think that is a legitimate direct consequence that this Bill could create for student unions—not least the £800,000 a year in printing and signing off the code of practice.
Mr Holden
Q
Danny Stone: As I say, there have been various Israeli speakers that they have sought to have on campus, including a professor of international law at City University in 2015—cancelled. In 2018 it was the Israeli ambassador; the event was initially cancelled and then held after a legal threat. There is a suggestion by a law lecturer at City University that they had been refused a sabbatical for attending a law conference in Israel. For Israeli minorities that I spoke to, events were cancelled at short notice and held off campus, because the SU imposed charges. This is actually something fairly important; it has happened a number of times—student societies being asked to pay a fee to cover the security costs of an event going ahead.
Lloyd Russell-Moyle
As I mentioned in the previous sitting, I am a trustee at the University of Bradford union, I receive money from the University of Sussex to provide educational opportunities to its students, and I have received support from the University and College Union.
Matt Western
My wife works at a higher education provider.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Higher Education (Freedom of Speech) Bill (Third sitting)
Lloyd Russell-Moyle Excerpts(3 years, 2 months ago)
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Michelle Donelan
Q
Sunder Katwala: Completely, yes. It is the question of whether there are any boundaries where you would be allowing reprehensible content that undermined academic freedom, liberal democracy or the role of the university, if you did not get those difficult cases right.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q
Is there a problem that expanding this to student unions might have detrimental effects? Student unions traditionally allow students to self-organise ginger groups, different political groups and so forth. If you require the Conservative club to enforce academic freedom, does not that make a mockery of having a club of Conservatives in which they can talk and debate issues among themselves?
Sunder Katwala: In principle, I do not see why it should do so—unless you have organisation of it wrong. As I see it, the principle is that the Bill should protect the difficult conversations that different people want to have. In theory, it should be blocking people saying, “I don’t like you saying that about Winston Churchill or the British empire—that’s too tough,” as well as stopping other things. But the devil is in the detail.
Lloyd Russell-Moyle
Q
Sunder Katwala: Mocking academics is part of free speech, so I do not think the Bill will stop people mocking academics.
Lloyd Russell-Moyle
Q
Finally, I want to talk about self-censorship. According to Facebook, 71% of its users self-censor. The UCU study says that only 35% of academics self-censor, and the King’s study says that, among right-wing academics, the figure is only 32%. Would that be evidence that, actually, right-wing academics are the least likely to self-censor and there is no problem?
Sunder Katwala: We are looking for cultural change whereby we have more confidence in having difficult conversations. The way to do that—I have tried doing this, and it is quite an interesting thing to do—is to say to people, “Give me a list of things that you think we can’t talk about any more. Let’s stay in the room and see whether we can have a conversation about them.” I have a concern: do we have that conversation with the right boundaries and the right culture? This is where I think people are balancers on these issues.
For example, people think there is a view about language that we do not want to use and there are labels not to use about people. Political correctness has civility and kindness, and it has a value for people, but when it is a code and you did not get the memo last week and now you are on the wrong side of it, people get a bit worried about how fast it moves.
I am not an expert on this, but, for example, people find this with debates about gender and sexuality. They know that we have changed our minds about the way we treat gay people in our society, but they find that very confusing and they do not know where to go to have that conversation and ask people about that. It is that navigation. Maybe we should be putting more emphasis into seeing how we have these sites of constructive engagement with difference, rather than having a regulatory process about who do you want to fine.
Lloyd Russell-Moyle
Q
Sunder Katwala: We do not know what the cultural impact of that will be, and whether that will be weaponised or used sensibly. I think the culture of the regulator in dealing with vexatious cases will be quite important. We see it in the sector of charities now and other things; we probably see it in politics, as well. If you create a regulatory thing, then people want to use up the time of people they do not like by reporting them to things. Pushing back against that, while doing the job it is trying to do, is important.
Felicity Buchan (Kensington) (Con)
Q
Nicola Dandridge: Yes. We think that there is a serious and significant issue in relation to academic freedom and free speech in higher education, and the proposals in the Bill seek to address that and create mechanisms for tackling such issues.
Lloyd Russell-Moyle
Q
Nicola Dandridge: The Bill does acknowledge that the different mechanisms might need to be interrelated, so that a student or an academic member of staff can take recourse through only one mechanism before they engage with another. That is in the Bill. I do not think it is a question of running rings around the Office for Students. It will be a question of making clear what the advantages and disadvantages are for each route, so that the student, member of staff or any third party affected can pursue the most appropriate recourse for them.
Lloyd Russell-Moyle
Q
Nicola Dandridge: But the Bill allows for that.
Lloyd Russell-Moyle
Q
Nicola Dandridge: The Bill does acknowledge that that may be something that needs to happen. I do not know whether it needs to be on the face of the Bill, but the Bill does acknowledge that that sort of thing needs to happen, and I think it is quite important. The main thing is about making sure that there are clear and proportionate paths for claimants to follow. Of course, the advantage of the complaints system—for example, with the Office for Students—is that it would be free to the claimant, whereas going to the courts can be very expensive. Things such as that need to be made clear, so that people can make the appropriate choice.
Lloyd Russell-Moyle
Q
Nicola Dandridge: We would normally publish our reports. It depends on the circumstances, but I cannot imagine why we would not want to publish a report of this sort.
Lloyd Russell-Moyle
Q
Nicola Dandridge: My understanding is that the Bill protects against defamation—that is very common with other regulators, too—but that does not mean that the decisions of the director for free speech and academic freedom cannot be judicially challenged. All our regulatory decisions—or most, as far as I am aware—can be judicially challenged, and I do not see that the decision of the director would be any different.
Sir John Hayes
Q
Nicola Dandridge: These sorts of decisions about what is lawful and what is not are both hugely complex and very facts-specific, so I think it would be very hard for the Government to anticipate those sorts of decisions. I think it is appropriate for that to fall to someone like the director and the Office for Students, who could take all the facts into account to make the appropriate decision.