Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.

I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.

[Lord Collins of Highbury (Lab)]

My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.

The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.

As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.

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[Earl Howe (Con)]

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

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

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

[Lord Collins of Highbury (Lab)]

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

[Earl Howe (Con)]

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

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

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

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[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.

If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.

[Lord Collins of Highbury (Lab)]

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

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

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

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

[Earl Howe (Con)]

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

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

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

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

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

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