Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, from these Benches we very much welcome the government amendments in this group. We consider that “opinions” is a much safer term than “beliefs or views”. We also welcome Amendment 7, which aligns freedom of speech more closely to other conventions. I am afraid that I do not have the legal knowledge to discuss the views of the noble Lord, Lord Moylan, on whether paragraph 2 should be there.

However, we support the other amendments in the names of the noble Lord, Lord Collins, and the noble and learned Lord, Lord Hope. We are also very pleased that the Minister has signed Amendment 6, which should help to protect freedom of speech and well-being on our campuses. We realise it is unlikely that the other amendments in this group will go any further; meanwhile, we thank the Ministers very much for listening.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the noble and learned Lord, Lord Hope, for introducing this group. When we were discussing these points in Committee, what prompted me to support him was how we should try to future-proof this legislation, particularly where there was speculation about human rights definitions and things that might lead to other changes. I therefore also welcome the Government’s own amendments. They are extremely helpful, and we welcome them in relation to this issue. I must admit that I am quite happy to support a third way. It has been part of my political tradition to do so, so I will support that.

I come to Amendment 6 in my name. We had an extremely positive exchange about how we protect these freedoms and stop a nasty practice of non-disclosure agreements inhibiting free speech. I am extremely pleased that the Government have signed the amendment and agreed to support it. I also appreciate all the discussions I have had with the Minister, whom I thank very much.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I would like to address the group of amendments concerning the free speech duties. As your Lordships have already noted, we had an important debate on these issues in Committee which sought to bring clarity and consistency both to the definition of freedom of speech and what the Government mean by “within the law”. Our amendments seek to address the first of these points. I hope that my remarks will cover the latter. I am disappointed that my noble friend Lord Moylan still thinks we are muddled on this issue; I will do my best to bring a little clarity.

Amendment 7 amends the provision in new Section A1(11), which currently sets out what freedom of speech as referred to in this Bill includes. The amendment refers to the

“freedom to impart ideas, opinions or information …by means of speech, writing or images (including in electronic form)”.

This wording is derived from Article 10(1) of the European Convention on Human Rights, which is also used in the Bill of Rights Bill. This was a particular concern of the noble and learned Lord, Lord Hope. There is also a reference to Article 10(1) of the ECHR as incorporated by the Human Rights Act 1998. This has been carefully drafted to reflect the fact that the freedom of speech in this Bill is a broader concept than freedom of speech in Article 10 because students’ unions are not public authorities and are not subject to the ECHR.

The other amendments are consequential. For example, they refer to “ideas or opinions” in certain provisions rather than “ideas, beliefs or views”. That is to reflect Amendment 7 and is not intended to change its meaning. I will comment on the phrase “within the law” when I respond to the noble and learned Lord’s Amendment 10.

As your Lordships are aware, these amendments are in response to Amendment 1, which was moved and eloquently explained by the noble and learned Lord, Lord Hope of Craighead. This is similar to our amendments, but we have some issues with it. The wording is from the Bill of Rights Bill, but this amendment would cause difficulties if inserted into this Bill. First, as I have already said, it is not right regarding the application of Article 10 to students’ unions. Secondly, it refers to the “right” to freedom of speech, which would lead to new Section A1(2), a duty to take steps to secure an individual’s freedom of speech—by which we mean the exercise of that freedom—instead being a duty to take steps to secure an individual’s right to freedom of speech. This is not what is intended in the Bill.

Regarding consistency with the Online Safety Bill, that Bill does not refer to freedom of speech but rather to the wider concept of freedom of expression. My sense was that the noble and learned Lord is not planning to press this amendment. I hope he will accept that the government amendment answers his concerns and those of the other signatories to Amendment 1.

Amendment 10, also tabled by the noble and learned Lord, seeks to define “within the law” as regards freedom of speech under the Bill. This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others. I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies.

This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to

“freedom of speech within the law”

in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty

“to respect the rights of others”,

as specified in the amendment.

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[Lord Collins of Highbury (Lab)]

I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

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Moved by

[Lord Collins of Highbury]

6: Clause 1, page 2, line 34, at end insert—
“(10A) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).(10B) In subsection (10A)—“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—(a) publishing information about the relevant complaint, or(b) disclosing information about the relevant complaint to any one or more other persons;“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;“misconduct” means—(a) sexual abuse, sexual harassment or sexual misconduct, and(b) bullying or harassment not falling within paragraph (a).”Member’s explanatory statement
This requires the governing body of a registered higher education provider to secure that the provider does not enter into certain non-disclosure agreements (and as a result of new section A4 of the Higher Education and Research Act 2017 inserted by section 2 of the Bill this will also apply to the governing body of constituent institutions).

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The introduction of a tort to duplicate what the OIA or the OfS already does would be a major additional burden for universities and the courts, although a great financial advantage to lawyers. The point made enthusiastically by the noble Baroness, Lady Fox, is that this would hit universities in their pockets and make them suffer. This is unnecessary. A combination of the regulation we already have and instructive, capable and braver leadership by our vice-chancellors and universities is what we need. I therefore strongly support the amendment to remove Clause 4.

[Lord Collins of Highbury (Lab)]

My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.

My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.

Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.

[Earl Howe (Con)]

My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.

The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.

We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.

The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.

The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—

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[Lord Collins of Highbury (Lab)]

My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.

One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.

The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.

[Earl Howe (Con)]

My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.

The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.

If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.

However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.

Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.

Given those points, I hope that noble Lords will agree that this amendment is not necessary.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

My concluding comment is simply about that hierarchy. I understand why the noble Lord seeks this, but it would mean that the public sector equality duty would be different for higher education providers compared with other public bodies, which would create additional complexity. It would create a hierarchy. Other public bodies will be concerned with protecting Article 10 rights, and they would then require further amendments to the respective laws that govern them. Our guidance will, we hope, be superseded by the guidance produced by the Office for Students to accompany this Act when it comes into force. I hope that the guidance will clarify the “particular regard” that Amendment 35 seeks to add in.

[Lord Collins of Highbury (Lab)]

This has been a really informative debate. Fundamentally, the noble Baroness, Lady Falkner, has set it in the proper context. I am not sure which hat she was wearing but whichever it was, this has been put in context; it is about balancing duties.

I must admit that, the more we discuss the clauses in this Bill in detail, the more I think about unintended consequences. If we have existing duties and responsibilities, why have they not worked? Why is it that Governments immediately resort to legislation rather than thinking about what is actually going on and asking what powers that they have could be better utilised? On the first day in Committee, a number of noble Lords made precisely that point. They highlighted where they think that things have gone wrong, but did not see this legislation as being particularly the right mechanism for putting it right. This debate has been extremely useful.

I must admit that I found the contribution from the noble Lord, Lord Mann, enlightening. My tendency is to look at my own personal experience at university—many, many years ago. There was quite a lot of hostility and demonstrations, and certainly some of the extremists that the noble Baroness, Lady Fox, talked about—maybe even the noble Baroness herself, as I suspect that we were both at the same university—frequently tried to stop me speaking on behalf of the Labour Party. By the way, I like the idea that I have the luxury of speaking in a personal capacity; maybe we should tell Conservative Central Office that that is the case—though I am tempted not to do that.

At the end of the day, what we have here is agreement on fundamental principles but disagreement about how you best achieve them. Invariably, there are competing interests at stake when speakers are invited to our campuses but, as the noble Lord, Lord Mann, said, freedom of speech is not a trump card. I make that point to the noble Lord, Lord Moylan. He may be able to qualify his words but, fundamentally, as the noble Baroness, Lady Falkner, said, those words do put it into a hierarchy, which I think is particularly dangerous.

Whether we like it or not, universities have a broad range of responsibilities, and not only to academic staff and students; they are also big employers and so have a duty to other staff as well—particularly when it comes to statutory legislation such as that on health and safety, which is something they must take into account when exercising these responsibilities.

As the noble Lord, Lord Mann, said, students have a right not to be harassed or subjected to hate speech. Most importantly, as he said, they have a right to protest and to say that the opinions being expressed by somebody who has been invited to their university are abhorrent. When I was at university, extremist religious faith groups were saying that my sexuality represented an evil thing that needed to be banned and stopped. Fortunately, we have moved on and do not allow that in quite the same way. If a religious fundamentalist came here, I would expect to have the right to say that I found their opinion abhorrent. The noble Lord, Lord Mann, was absolutely right, and the case that he used to illustrate this is an important one.

When I looked at the Bill’s Committee stage in the Commons, I saw that points were made, with reference to the evidence sessions, about how the Equality Act could be used:

“Professor Stephen Whittle from Manchester Metropolitan University acknowledged as much in the Bill Committee, recognising that the Equality Act would afford protection only if the speech were directly addressed to the complainant. That is important because front groups such as Hizb ut-Tahrir, which is not a proscribed organisation but which often espouses antisemitic views, could come on to campus under the guise of freedom of speech.”—[Official Report, Commons, 13/6/22; col. 80.]


There is real concern here about how we must have that balancing act and ensure that people are protected. The example from the noble Lord, Lord Mann, about a family member of someone who suffered the consequences of terrorism, is a really important one.

At the end of the day, we have to try to take into account the sentiments contained in Amendments 29, 32 and 44 and ensure, as the noble Lord, Lord Smith, said, that we recognise those balancing responsibilities. As the noble Baroness, Lady Falkner, said, it is important that this proposed law does not inhibit the balancing of those responsibilities. I certainly have a lot of sympathy for the amendments in the name of the noble Lord, Lord Mann.

[Earl Howe (Con)]

My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.

Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.

I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.

As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.

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[Lord Willetts (Con)]

My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.

The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.

Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.

My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.

[Lord Collins of Highbury (Lab)]

Does the noble Baroness not wish to speak?

[Baroness Smith of Newnham (LD)]

I think I have said everything that needed to be said from these Benches.

[Lord Collins of Highbury (Lab)]

I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.

This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.

The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.

The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.

I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.

I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.

[Baroness Thornton (Lab)]

Copyright? Intellectual property?

[Lord Collins of Highbury (Lab)]

Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.

I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.

[Earl Howe (Con)]

My Lords, this group of amendments relates to impartial research funding. Amendment 34 in the name of my noble friend Lord Moylan would introduce a new duty to require higher education providers to take reasonable steps not to refuse to grant funds for research because of a recipient’s lawful principles or political opinions.

Amendments 45 and 46, also tabled by my noble friend, seek to make clear, first, in respect of donations and sponsorship to registered higher education providers and, secondly, in respect of funding through UK Research and Innovation, that the donor, grantor or provider may never restrict the freedom of speech of those working under the funding. Amendment 53 in the name of the noble Lord, Lord Sikka, is about the awards of grants for academic research.

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[Earl Howe (Con)]

I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.

[Lord Collins of Highbury (Lab)]

The Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.

[Earl Howe (Con)]

I bow to the noble Lord’s superior knowledge on this. If noble Lords will allow, I will conclude.

I mentioned the possibility of a monetary penalty, which was raised by the noble Baroness, Lady Garden. The power to impose a monetary penalty is based on the existing enforcement regime for higher education providers and is intended, obviously, to encourage compliance.

New Section 69B will also require the OfS to maintain and publish a list of student unions at approved fee cap providers. This will make it clear which student unions the OfS has been informed by its providers are subject to the duties in new Sections A5 and A6. It will also require those student unions to provide the OfS with information it may require for the performance of its functions. These are new regulatory functions, intended to ensure compliance by student unions with their new duties. Together with Clause 3, this clause will ensure that freedom of speech is protected by not just higher education providers but student unions.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

CHOGM, G7 and NATO Summits

Lord Collins of Highbury Excerpts

Monday 4th July 2022 Lords Chamber

[Lord Bilimoria (CB)]

I did not miss their remarks.

[Lord Collins of Highbury (Lab)]

The noble Lord missed the Front-Benchers.

[Lord Bilimoria (CB)]

I did not miss them; I heard the noble Lord, Lord Newby.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I was not going to declare an interest until I heard the contribution from the noble Lord, Lord Cormack, which reminded me that I too had been a visiting parliamentary fellow at St Anthony’s, which I enjoyed very much. I was a joint fellow with a Conservative Peer and we planned a schedule of lectures with competing arguments, so I understand the value of challenging thought and ideas—it is absolutely what makes for progress.

As we heard in the excellent introductory speech from the noble Lord, Lord Wallace, the Bill has had a fragmented and bumpy ride through Parliament. Not many Bills would be introduced in May 2021, and complete their Committee stage in September of that year, and then finally get to Report and final stages on 13 June this year. What a long ride it has had.

The Bill is primarily searching for a problem. Sadly, my noble friend Lord Blunkett could not be with us today, but last week he put it to me that it is all about gesture politics. He said it is “Putting up an Aunt Sally that doesn’t really exist and knocking it down again”. What is the evidence? We have heard views about that. The report of the Joint Committee on Human Rights into free speech at universities in 2018 found that there was no major crisis of free speech on campus. As the noble Lord, Lord Storey, highlighted, the Office for Students said that 0.21% of invitations were rejected. We have heard a lot about the chilling effect, and it has lots of implications; whether it be for financing, through the number of foreign students, or for the number of grants, I have no doubt that it influences the response of institutions.

The noble Baroness, Lady Stroud, referenced the UCU evidence. What I found really interesting about the UCU briefing on this matter is that, when I was at university, academics talked about tenure guaranteeing freedom of speech and guaranteeing academic freedom. Now when a student goes to university, half their teachers are on short-term contracts and likely to be sacked for all kinds of reasons. If that is not a chilling effect on academic freedom, I do not know what is. Let us make sure that we look at the evidence.

My noble friend Lord Blunkett also said to me that this is a distraction from what really matters to the sector and to students. Three out of four students are currently worried about managing financially, one in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks. In my opinion, that is the real crisis in our universities. Of course, the challenges faced by students reflect what is going on in wider society. As my noble friend Lady Thornton said in her opening speech, unlike the Conservatives over the years, Labour has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression.

What have we got here? We have a Bill that has gone through the Commons and that will create a director for freedom of speech and academic freedom on the OfS board, as well as a new OfS registration condition on free speech, strengthening an existing duty known as Section 43. It also introduces a statutory tort, giving private individuals a right to seek redress for loss incurred as a result of a breach of Section 43, and so-called enhanced contractual protections for academics with regard to academic freedom. It is very difficult to see that given the stats which I have just mentioned. The Bill also has the addition of a duty to disclose overseas gifts and contracts affecting freedom of speech—which no doubt has persuaded some noble Lords to support it.

Across the House, throughout this debate, I have heard the serious reservations of noble Lords about the unintended consequences of these proposals. I listened with great interest to the contribution of the noble Baroness, Lady Deech, whom I do not often agree with but on this one I completely agree with her. It is those unintended consequences that we should be most worried about. The Bill reflects a top-down, one-size-fits-all approach, which the noble Viscount, Lord Eccles, referred to. It demonstrates a weakness at the heart of the Government and their misplaced lack of trust in the academic community.

I hope the noble Earl will address the concerns raised in the debate, which are shared not only by noble Lords across the House but by the sector. We need to know how the Bill will interact with existing legislation and other duties which relate to free speech and academic freedom, including, as my noble friend highlighted, the proposals to reform the Human Rights Act. Ministers have claimed that the new statutory tort would be a backstop, but what safeguards will there be to ensure that it does not lead to universities having to defend themselves against vexatious and frivolous claims brought by anti-vaxxers, Holocaust deniers and hate preachers?

We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.

The noble Lord, Lord Johnson, raised overseas donations —a late addition to the Bill. As the noble Lord said, will the Government ensure that duties on overseas funding are targeted with risk-based exemptions and proportionate reporting? What sort of extra duties will be placed on universities? We need to have a proper assessment.

I have no doubt that we will return to these issues in Committee. I repeat my noble friend’s assertion: we will be tabling amendments to ensure that an independent appointments procedure is used for the post of director for freedom of speech, and also to ensure it is not a party-political appointment. I do hope the Minister will respond to her questions, specifically those about the post being advertised, the job description, and the requirements of the person specification for the job, which does not seem to address what we are being told the job is about. Certainly, with a closing date of 13 July, will we see this appointment being made before parliamentary approval?

Labour will also seek to broaden the definition of academic freedom, to include for example, criticism of institutions, conducting research and joining a union—something that I think is fundamental to a free and democratic society—and will also propose, as my noble friend said, a sunset clause to the legislation.

There is one thing I wanted to return to in more detail. If there is a problem—and I have heard from noble Lords and I accept there are issues to address—is this legislation the best way to deal with it? Surely, adopting and promoting best practice in our universities and with academics and teaching staff is the real answer. We have a sector that leads the world, and I understand the view of Universities UK that it is important that additional legislation and duties placed on universities that seek to address the small number of incidents that we have heard described this evening need to be proportionate. I have heard and read that Universities UK has stated its willingness to work with the Government on the Bill to demonstrate their members full and firm commitment to freedom of speech, which I think I have heard from across this House. But what I find most disappointing about the Government’s attitude is they have not really examined the vast array of really good practice. How do we encourage good practice? The Manchester guidelines, the Chicago principles or even Robert French’s independent review of freedom of speech in Australian higher education—to name but three—show countries around the world have similar issues, but the point is how they go about addressing them.

If the Government were really interested in promoting and protecting freedom of speech and academic freedom, they would seek to encourage this approach across the sector, as I think was referred to by the noble Viscount, Lord Eccles. It would be far more effective and would not have the unintended consequences that this proposed legislation would have. Such approaches would go a long way to fostering the healthy culture of debate that we all want on our campuses. We have to understand that, sometimes, institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective and more consensual approach to protecting freedom of speech on campus.

I have heard about the competing pressure on freedom of speech, safe places and respect. As a student 45 years ago—or maybe longer, I suppose—as a young gay person trying to study in that environment, actually, disrespect did turn into hate speech, and hate speech turned into violence. Do not think of words as simply a painful experience, if they encourage violence. That is what we experienced with Section 28—words that said that you cannot preach something in schools because it is a danger to children. That was in Section 28, and it is what we must guard against. Respect is about respecting all; it is not just about a difference of opinion. I want debate but I also want to protect individuals.

Her Majesty the Queen’s Platinum Jubilee

Lord Collins of Highbury Excerpts

Thursday 26th May 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, it is a great privilege to follow the noble Baroness the Leader of the House in paying tribute to Her Majesty the Queen. It is also a pleasure and privilege to speak from these Benches to offer Her Majesty our congratulations on the occasion of her Platinum Jubilee.

Members of your Lordships’ House are no strangers to long periods of public service. We are all motivated by the desire to serve the people and improve their lives but I am sure your Lordships will agree that Her Majesty is in a league of her own. In duration and dedication, no one can compare. Her sense of duty is well known to us all.

Her Majesty is rightly respected for her almost complete avoidance of party-political controversy during her long reign. This is all the more remarkable, given that she is from a trade unionist background. Her mother and father were honorary bummarees —porters at Smithfield meat market—and members of my union, then the Transport and General Workers’ Union, now of course better known as Unite. The Queen Mother was delighted to be a member; she and George VI were admirers of the union’s former general-secretary Ernest Bevin, who of course went on to serve as a distinguished member of the war Cabinet and as Foreign Secretary. He is one of my personal heroes but I know that he was hugely respected by both King George VI and the Queen Mother, Queen Elizabeth, but also by Her Majesty the Queen.

As the noble Baroness the Leader of the House said, Her Majesty is of course the head of the Armed Forces. This is a role that she has always taken seriously. We all have memories of Trooping the Colour and her leading Remembrance Sunday at the Cenotaph. As the noble Baroness also said, it is not just an official role: it is very much personal to Her Majesty, having many family members who have served and having served herself in the Second World War. As well as numerous visits to military establishments and hosting events for service men and women at royal residences, in 2009 Her Majesty introduced the Elizabeth Cross—the first medal named after a reigning monarch since the George Cross in 1940—which gives special recognition to the families of service personnel killed during military operations and as victims of terrorism since 1948.

In a changing world Her Majesty has been a reassuring, constant presence, the likes of which we may never see again. She has in many ways been a bridge from one era to another, connecting different generations through the decades. Britain in 1952 was a vastly different place from the country we live in today: a nation emerging from the ravages of a world war with rationing still in place. The challenges of the Cold War and the nuclear age were still in their infancy. The NHS was only four years old. There was just the one TV channel and only 150,000 homes even had access to a television set—no personal computers, no mobile phones and no internet.

Fast forward 70 years and not only has the technology transformed all our lives, mostly for the better, but our society is a very different place. We are now a much more diverse and vibrant country, being home to people from across the globe. Opportunities for women have been transformed, although there is still a long way to go. In 1952, I could not have married my husband; in fact, I would have been at risk of arrest and prosecution just for being who I am. But as our country has changed, so too has the Queen. Everyone changes over the years but Her Majesty has adapted and modernised the monarchy in ways that mean that even many republicans have huge personal admiration and affection for her.

The Queen is the personal embodiment of the nation and a huge asset to us all. Instantly recognisable across the globe, she has met almost every significant world leader of the past 70 years. More importantly, they have all wanted to meet her. We often talk about soft power in this place and Her Majesty epitomises it. Politicians come and go, and some are more loved than others, but to maintain the Queen’s levels of respect and popularity over seven decades takes a real talent.

Ten years ago on the occasion of the Diamond Jubilee my noble friend Lady Royall, the then Leader of the Opposition, spoke about the falling esteem in which politics and politicians are held—sadly, a situation little improved, if not worse, a decade on. She contrasted this with the affection for Her Majesty and said we had much to learn from her. I know it is a recipe that we all wish we knew the ingredients of, but we can take a guess at some of them: not only her sense of duty and devotion to public service but a strong work ethic, a love of country and the Commonwealth, and her sense of humour, as the noble Baroness the Leader of the House mentioned.

As the noble Baroness said, Her Majesty also had the love and support of the Duke of Edinburgh. Prince Philip was a remarkable individual in his own right: outspoken, sometimes irreverent and at all times totally human, his support has been vital. As consort of the monarch for some 69 years, he not only provided invaluable support for Her Majesty but made a huge impact on the life of our country in his own right. The noble Baroness mentioned the Duke of Edinburgh’s Award, which has impacted the lives of countless young people here in the UK and in some 144 countries worldwide. Over the years since its founding in 1956, many leaders from the arts, business and politics have undertaken the awards. The promotion of volunteering, physical exercise, the development of personal skills and exploration is of great benefit not only to the participants but to their communities and countries. It is a legacy that will endure. Sadly, I got lost on my orienteering exercise on Chobham Common so I never made it past the bronze stage.

Let this Platinum Jubilee be a celebration of community, selflessness and serving others: a celebration of all that is positive about our public life and institutions, a break from the usual daily diet of cynicism and scepticism, and a truly national celebration of a Head of State like no other.

Sue Gray Report

Lord Collins of Highbury Excerpts

Wednesday 25th May 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

I thank the Leader for repeating the Statement. I am rather disappointed that we are taking it so late in the day with so few Members present.

As the noble Lord, Lord Kerslake—a former head of the Civil Service—wrote in the Guardian this afternoon:

“Sue Gray’s report is written in the measured and balanced way that you would expect from a longstanding civil servant … Event after event is juxtaposed against the prevailing rules at the time to devastating effect.”


What also jumps out from this report is: why did it take Boris Johnson six months to acknowledge what was going on? Instead of owning up and taking responsibility, we had to see a costly police investigation, which concluded that he was the first Prime Minister in our country’s history to have broken the law in office. Then we had to wait for the Sue Gray report.

During this time, we have seen Civil Service morale severely damaged and reputations trashed, including outrageous attacks on Sue Gray herself. I cannot improve on the Daily Mirror’s Kevin Maguire’s description of the report in brief:

“Vomiting. Excessive boozing. Fisticuffs. Partying until 4.35 am (before Prince Philip’s funeral). Broken swing. Secret Santa. Cleaners & security staff bullied. Red wine on walls. Karaoke. Sitting on laps.”


There is also, of course:

“‘We seem to have got away with it’—Martin Reynolds”.


Lots of questions remain about the Prime Minister and others who believed that lockdown rules did not apply to them. That was driven in part by the idea that those working long hours, dealing with Covid-related issues had a pass-out to behave as they did and, in essence, to carry on regardless. That they would have condemned and clamped down on such behaviour if it had happened in the NHS, schools, local authorities and other public-serving workplaces is not in doubt.

When the dust settles and the anger—strongly felt by many of our communities—subsides, this report will stand as a monument to the arrogance of a Government who believed it was one rule for them and another for everyone else. It is pretty clear that the Prime Minister knew exactly what was happening in No. 10 throughout the lockdown period and that it was wrong, both legally and morally. Five months ago, he told the House of Commons that all guidance was followed completely in No. 10. I am sure many noble Lords opposite, if they were here, feel uncomfortable. I know that many of those who are not here feel uncomfortable, at the very least. I know that many feel far worse, especially those who served under previous, more honourable Prime Ministers.

In her response, I hope the Minister will comment further on how cleaners and security guards at No. 10 were able quickly to ascertain that those events were clear breaches of the lockdown rules and call them out. They were faced with what can be described only as entitled abuse, while the Prime Minister told Parliament that he was unsure what the rules were. In the light of Sue Gray’s conclusion, does the Minister agree that the promised apology to those hard-working custodians and cleaners in Downing Street should be formal and in writing? They have been subject to rudeness and disrespect from officials and advisers while they were simply trying to do their job.

Sue Gray’s report shows systematic law-breaking, with photographic evidence that the Prime Minister himself broke the rules on multiple occasions. Allegra Stratton is the only one to have resigned, despite this industrial-scale breaking of the rules. Does the Minister think this is right? When the Prime Minister said that he was taking personal responsibility, what did that mean, beyond those words? What action will he take? Allegra Stratton did take personal responsibility. As Keir Starmer said:

“No. 10 symbolises the principles of public life in this country—selflessness, integrity, objectivity, accountability, openness, honesty and leadership.”


Nobody, but nobody, reading this report can honestly believe that the Prime Minister has upheld them.

Our constitution relies on Members of Parliament and the custodians of No. 10 behaving responsibly, honestly and in the interests of the British people. When our leaders fall short of these standards, Parliament has a duty to act. Without these standards, not only is our democracy weakened but our global reputation is impacted. The trust and confidence that this nation has built is severely weakened if the man who represents us is not believed by other global leaders.

I address these remarks to the noble Lords opposite. They must now use their influence on colleagues in the other place to stop this out-of-touch, out-of-control Prime Minister from driving Britain towards disaster. The values symbolised by the door of No. 10 must be restored. Only then can we restore the dignity of that great office and the democracy it represents.

[Lord Newby (LD)]

My Lords, finally we have the Gray report. The country owes Sue Gray a tremendous debt of gratitude for undertaking her task fearlessly and thoroughly. It was typically dishonourable of the Prime Minister to try and persuade her at the 11th hour not to publish it at all, and typically courageous of her to do so. Will the Government at least release the minutes of her meeting with the Prime Minister, so that we can be clear exactly what took place?

On one level, today’s report does not tell us anything new. We already knew that there have been multiple parties in Downing Street, and that the culture was the opposite of that which the Government were enjoining on the rest of the population. We already knew that the Prime Minister and the Cabinet Secretary, far from instilling a culture in tune with both their messaging and the legislation, were encouraging what was going on. And we already knew that, by denying what had happened, the Prime Minister was misleading both Parliament and the country. What the report does is provide the gory details—and gory they are.

The Prime Minister’s defence today is that Downing Street is a large, busy building; that it was appropriate to have farewell parties, that he did not stay long at the parties, and that he had no idea what happened after he had left. If this were any other large organisation, in either the public or private sector, these risibly feeble excuses would have meant that heads at the top would roll. That they have not is a major indictment of the Prime Minister, his Government and the Conservative Party.

By refusing to resign, the Prime Minister has weakened his own standing, that of his party, that of the country, and that of politics and politicians more generally. It is clearly of huge importance that this loss of reputation and standing be reversed. In the first instance, this can only happen if the Prime Minister is replaced, and this can only happen if he is ejected by his Commons colleagues or the electorate. As far as his Commons colleagues are concerned, it seems that there is in reality virtually nothing which the Prime Minister could do which would impel them to act. This is most strange, as the only reason the Prime Minister became leader of his party was that many people who knew him to be a charlatan and a liar held their noses, because they thought he was an election winner.

If they have been out on the doorstep recently, they will have found that this situation no longer obtains. Yet, with one or two notable exceptions, they sit on their hands. They are therefore all complicit in the duplicities of this Government. If his MPs do not act, the Prime Minister will be removed only by the electorate. Recent elections have shown what voters already think of him, and with every electoral contest, whether by-election, local elections or the next election itself, there will now be a reckoning for the Conservative Party. The sadness is that, until the general election comes, we will be stuck with this morally bankrupt and rudderless Government.

But if the Prime Minister comes badly out of this saga, so too, I fear, do the Metropolitan Police. They turned a blind eye to the parties when they first happened. Under intense public pressure, they initiated an investigation, but the fines which they imposed, concentrated as they were on junior and female staff who co-operated fully with them, compared to other more senior people who clearly did not, look arbitrary and incomplete.

They failed to explain themselves, so they cannot rebut the inevitable suspicion, widely felt across the country, that the policy on fines was driven not by a strict interpretation of the law but by a political impulse to let the Prime Minister off lightly. They are now facing legal challenges into the way they behaved. They should pre-empt these now by coming clean on the rationale for their partygate policies.

The Prime Minister, understandably, wishes to draw a line under this sorry saga and in his mind he has probably already done so. But the public have not, and there will be a reckoning.

Elections Bill

Lord Collins of Highbury Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 28th March 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I too wish the noble Lord, Lord True, a speedy recovery and a quick return to duty, hopefully in time for Report. I am sure that the noble Earl would be pleased by that.

This has been a very good debate, because it has focused on broader issues of principle which we need to probe the Government on. The noble Lord, Lord Wallace, is absolutely right, as we have said at a number of stages, that this Bill represents missed opportunities. It is not so much what is in it as what is not in it that has been a problem. I am sure that the amendments which we have tabled will be considered. If they are not in this legislation, we will return to these broader issues of principle. The one thing that we would have all hoped for in terms of that right to vote is clarity, which we do not get here for all kinds of reasons, not least legacy reasons. Noble Lords have spoken about the complications that we will now face which we had not faced previously, not least that we will have some EU citizens with the right to vote and some without the right to vote, based on when they arrived—an arbitrary date as far as they are concerned.

Of course, the principle that we have sought to highlight in our amendment is what sort of qualification would make sense, would be clear and would be easily understood. We bandy terms such as “no taxation without representation” around, but lots of people who should be perfectly entitled to vote do not pay tax, particularly council tax. Residency is an important principle and perhaps the missed opportunity that this Bill could have addressed more properly, not least because of that legacy. I am not arguing at all for a change in what happened in the Brexit vote. We have left the EU. However, there is a legacy that we must consider there, particularly on people who have made their home here.

I must declare an interest, not least because in my household, with every general election that comes around, we are denied the right to vote. I wish we could vote but we cannot. My husband has lived here for 27 years; he has been a taxpayer, a national insurance payer and a council tax payer. He is a member of the Labour Party, has campaigned for candidates and has voted in every local election that he has been permitted to. The legacy of that will continue. The complication is that it will not apply to other EU citizens who establish the right of residency, who work here and who pay tax here. After a certain date they will not have that right to vote. It causes unnecessary complication.

Throughout this Bill I have readily agreed with the noble Lord, Lord Hodgson, particularly on citizenship education—and by the way, citizenship education should not be limited to citizens of the United Kingdom. The rights and responsibilities of living in this country should be understood by all who live in this country, and we would create a much safer society if we undertook that responsibility. That is why we should consider a right to vote based on the clear principle of residency. Maybe we will not have the opportunity in this Bill. The noble Lord, Lord Hodgson, said that people who just pop over here should not have the right to vote. However, because of our legacy as an empire and our legacy in terms of the Commonwealth, it is a bit ironic that a student from Australia on an overseas experience visa can land in this country and get the right to vote, but my husband, who has been here for 27 years and paid tax, does not. It does not really make sense.

This is, sadly, a missed opportunity. Amendment 156, in the name of the noble Baroness, Lady Suttie, and my noble friend, deals with precisely that issue: instead of clarity we end up with confusion, with some people having the right to vote and others not, but both having the right of residency and to work and pay tax and national insurance. This country will have to consider that at some stage, if not now. I hope the Minister will understand why we have tabled our amendment. I agree with the noble Lord, Lord Wallace, that this is a missed opportunity. I am sure none of these amendments will be agreed to, but I hope that the principle we are trying to establish will be considered in the future.

[Earl Howe (Con)]

My Lords, I begin by conveying the regret of my noble friend Lord True that he is unable to be in his place today because of illness. As a result of his indisposition, the Committee finds itself with a deputy Minister in the shape of me. That is a privilege for me, but I am only glad that I am so ably supported by my noble friend Lady Scott in this endeavour.

My Lords, this group of amendments deals from various perspectives with the voting franchise in the context of UK national elections. I hope that I can be of help to noble Lords in setting out the Government’s approach to this issue and the logic that lies behind it. I was grateful to my noble friend Lord Hodgson for what he said in connection with Amendment 152, which I shall begin with.

The purpose of Amendment 152 is to require the Government to allow EU citizens to vote in UK parliamentary elections. It may be helpful if I explain our policy position on this. Our policy has always been that after our exit from the EU there should not be a continued automatic right to vote and stand in local elections solely by virtue of being an EU citizen. The provisions in this Bill are based on two main planks: first, to respect the existing rights of those who chose to make their homes in the UK before the end of the implementation period; secondly, to look to retain rights on a bilateral basis where possible.

Amendment 152 would extend the parliamentary franchise to EU citizens where no such rights previously existed. In a similar vein, Amendment 156 seeks to allow EU citizens to continue to vote and stand in local elections in Northern Ireland. Those who are nationals of an EU member state have never been able to vote in UK parliamentary elections by virtue of their EU citizenship. If an EU citizen becomes a British citizen, they will be eligible for the parliamentary franchise from that point.

The Government stand by their commitment to EU citizens resident before EU exit, and the Bill ensures that any EU citizen who was a resident before the end of the transition period on 31 December 2020 and who has retained lawful immigration status will retain their voting and candidacy rights in England and Northern Ireland. This goes beyond our obligations in the withdrawal agreement. EU citizens who arrived after the end of the transition period will move to a position whereby local voting and candidacy rights rest on the principle of a mutual grant of rights through voting and candidacy rights agreements with individual EU member states.

On Amendment 156, the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Dodds, referred to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. As was rightly said, both those commissions have sought clarification on EU voting and candidacy rights in relation to the Northern Ireland protocol. The UK Government’s position is very clear and has been explained to both commissions. Removing voting and candidacy rights from EU citizens arriving in Northern Ireland after the implementation date does not run counter to article 2 of the Northern Ireland protocol.

Article 22 of the Treaty on the Functioning of the European Union confers a right to vote and stand as a candidate in municipal elections only in respect of EU nationals who are resident in another member state, having exercised their rights of free movement and residence. As the UK is no longer a member state, EU citizens self-evidently no longer enjoy the right to reside here, so the ancillary article 22 right to vote and participate in municipal elections is no longer applicable to it in this context. This is entirely consistent with part 2 of the withdrawal agreement, “Citizens’ rights”. I hope that is helpful.

I submit to your Lordships that the Government’s approach is a sensible and fair one, whereby established rights are recognised while moving to new bilateral agreements with individual nation states in the EU. I am afraid, therefore, that the Government cannot accept either of these amendments.

Amendment 155 is intended to extend the parliamentary franchise to foreign nationals with certain types of immigration status in the UK. The right to choose the next UK Government is rightly restricted to British citizens and those with the closest historical links to our country. In this respect, the UK is in line with international norms. Citizenship is the normal criterion for participating in national elections in most democracies, including the UK.

Amendment 155A in the name of the noble Lord, Lord Shipley, proposes to enfranchise all who pay council tax in the relevant local authority area. Taxation has never been the basis for representation in the UK in modern times. There is a long-standing principle in the UK, as originally recommended by the Committee on Standards in Public Life in 1998, that those who do not pay income tax, such as those earning less than the tax-free personal allowance, rightly remain entitled to vote. Similarly, full-time students are legally exempt from paying council tax but still have the right to vote in local elections. So, I submit that that connection between taxation and voting does not exist. The Government hold to that principle and therefore cannot support Amendment 155A.

The noble Baroness, Lady Bennett, asked me a number of questions. I will arrange for a letter to be sent to her, but I will comment on her point about credit scoring and being on the electoral roll. The noble Baroness is, of course, not wrong in pointing out that credit reference agencies use the electoral roll to enable lenders and other service providers to confirm someone’s identity. However, it is true to say that lenders look at the entirety of the information on a person’s credit side, as well as other factors, to decide whether to lend to somebody. Lenders and other providers of financial services can ask for other forms of identity and confirmation.

The noble Baroness also asked whether we were taking steps to inform local authorities about the measures being taken. The Government are very conscious of the competing priorities that local authorities have and, particularly, electoral registration offices, both in relation to their business as usual activity and in the new activity that will be conferred by the Elections Bill. We are committed to working closely with the electoral community throughout the development of secondary legislation and implementation planning. We will commit to funding all new burdens incurred by EROs as a result of implementing this policy, as is customary.

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[Lord Rooker (Lab)]

Well, that is the answer to my question.

[Lord Collins of Highbury (Lab)]

My Lords, we talk about piecemeal reform, and changes to this House have not necessarily been a result of legislative change or even reform. I have mentioned in previous debates the excellent book by Antonia Fraser about the debate on the Great Reform Act 1832. What I found most fascinating was that most Members of the House of Commons were sons of aristocrats and were put there by their fathers to have proper training to come into the House of Lords. Of course that was in the days when the powers of this House were great, as noble Lords have mentioned.

What recently shocked me even more—and I have cited this too—were the diaries of “Chips” Channon, who, when he was writing pre-war, leading up to the 1938 Munich debacle, mentioned that most of his friends in the House of Commons were sons of aristocrats who eventually ended up in this House. I hope things have changed. Constitutionally, things have radically changed, quite rightly, in the powers of this House, which can no longer challenge the democratic mandate of the House of Commons. The question is not simply about whether we are here for life or not; it is about what we do here. Even where we have particular circumstances of power, I am one of those people who would not use it to challenge the democratically elected House of Commons.

My noble friend made a very powerful case, and the point that struck me was that not many people in the public out there are aware that we have not got the vote. I remember campaigning in the 2017 election and a young, radical activist stopped me and asked if I had voted yet. When I explained I could not vote for Jeremy Corbyn, she nearly issued an internal disciplinary notice. Once I had explained, I was eventually forgiven. But I think it is a point worth making that most people assume that everyone in this country has a free and fair democratic right to vote, and it just seems ridiculous that we do not.

[Earl Howe (Con)]

My Lords, this amendment from the noble Lord, Lord Dubs, who is joined on the Marshalled List by my noble friend Lord Naseby, brings us to a topic on which each of them has tested government policy on a number of occasions in the past, including, as I recall and as the noble Lord, Lord Dubs, mentioned, through my noble friend’s Private Member’s Bill in 2019. On the latter occasion, my noble friend Lord Young of Cookham set out the Government’s response, and I therefore hope it will not come as a shock to the noble Lord, Lord Dubs, that my response today bears an uncanny resemblance to the one given to the House previously.

I understand and respect the case that noble Lords have articulated on this issue. However, I am afraid it is not a case I can accept, and the reason is clear and straightforward and was well articulated by my noble friend Lord Cormack. Noble Lords will be aware that although, as the noble Lord, Lord Collins, rightly said, the role of this House has changed over time, our place in Parliament still gives us a position of influence not held by other citizens. My noble friend Lord Sherbourne asked what the downside would be of accepting the amendment. Enfranchising noble Lords to vote in general elections would give Peers two ways of being represented in Parliament. Members of this House have an opportunity to debate and vote on legislation. To provide a vote for Peers in UK parliamentary elections would undermine the principle that all citizens are equally represented in politics.

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[Lord Green of Deddington (CB)]

My Lords, I gave notice at Second Reading that it was my intention to bring forward an amendment on votes for Commonwealth citizens in general elections—and I repeat that. We have had a very good debate on local elections and got into a lot of technicalities, but this is now about general elections.

My suggestion is that, to vote in general elections, the basic requirement should be citizenship of the UK. That is clear, simple and logical, and I trust that the noble Lord, Lord Wallace, agrees. In the wider context, however, it would be a pity to take an action that might be perceived as unfriendly to the Commonwealth. We should therefore introduce the principle of reciprocity; I will come back to that point.

At present, all Commonwealth citizens have the right to vote in not only our local elections but our general elections without becoming British citizens. That is the case whether or not their countries of origin permit British citizens to vote in their general elections; as I will explain, most of them do not. In practice, as things stand now, Commonwealth citizens in the UK can simply put their names on the electoral register. Indeed, now that the register is reviewed every month, they could acquire the right to vote very shortly after their arrival. By contrast, foreign nationals in the UK must first obtain British citizenship—a process that takes five years or so.

A word about the background—as I mentioned at Second Reading, the noble and learned Lord, Lord Goldsmith, a Labour former Attorney-General, recommended in 2008 that this virtually automatic right for Commonwealth citizens should be phased out. He made three points, which briefly were that: first, most countries do not permit non-citizens to vote in national or even local elections; secondly, the UK does not have the same clarity around citizenship as other countries do, which is quite important; and thirdly, it is right in principle not to give the vote to citizens of other countries living in the UK until they become citizens of the UK. All that makes perfect sense. It is just a pity that it was not listened to at the time.

I just mentioned reciprocity and I am grateful to the House of Lords Library for its research into this. Only about 10 of the 53 Commonwealth countries grant British citizens the right to vote in their general elections, and nearly all those countries are small Caribbean islands. It would be wrong to remove the vote from nationals of those countries that continue to grant it to British citizens, so my amendment therefore makes that one small group of exceptions.

Sadly, no action was taken on this matter by the Labour Government at the time, nor by subsequent coalition or Conservative Governments. However, this Bill provides an opportunity to deal with it quickly and, I hope, quietly.

The effect of my amendment would be to put virtually all those coming legally to live in Britain on the same footing—namely, they would be entitled to vote when they had achieved British citizenship and not before.

On the numbers potentially involved, according to the Office for National Statistics, the number of Commonwealth citizens has increased by about 100,000 a year in the past five years. At this rate, very generally, about half a million would be able to vote in a general election without having acquired citizenship.

As a further point, and not an unimportant one, the present law is expressed in what one might call Home Office speak. That is picked up by the Electoral Commission, the website of which says:

“Any type of leave to enter or remain is acceptable, whether indefinite, time limited or conditional.”


That is absolutely extraordinary. In practice, it means that any Commonwealth student or work permit holder can register to vote before an approaching general election and so could their adult dependants. This right could even be extended to visitors, as most get six months’ leave when they arrive, as noble Lords know. As the noble Lord, Lord Collins, mentioned, this makes no sense. I would be grateful if the noble Earl, Lord Howe, would confirm that I have correctly explained the meaning of these words on the Electoral Commission website, which corresponds to the Home Office website. Could he also confirm that British nationals overseas are Commonwealth citizens for the purpose of voting? I believe they are.

Migration Watch, of which I am president, has made a rough estimate of the numbers involved. If one takes just the top 10 Commonwealth nationalities, the number of entry clearances granted in 2021 was about 360,000. If visitor visas are included, the total is over 500,000. If Hong Kong is included, it would add those who are adults among the 100,000 who have already arrived. I realise that may sound a little techie, and these numbers are not exact, but they are certainly not insignificant. I leave it to noble Lords to consider whether election agents in the relevant constituencies would be able to work it out. I suspect that they might.

It is important to be clear that my amendment would not take the vote away from anyone who now has it, only from future arrivals until they became British citizens. I add a final note on Irish citizens in the UK. As most Members know, they have had the right to vote in general elections since 1922, and vice versa. These arrangements would not be affected by my amendment and nor should they be.

To sum up, this amendment is about four matters: first, the simplification and rationalisation of the system, as the Liberal Democrat spokesperson, the noble Lord, Lord Wallace, pointed out and which the noble Lord, Lord Desai, called for; secondly, reciprocity and therefore fairness; thirdly, a basic requirement of citizenship; and fourthly and perhaps most importantly, maintaining confidence in the electoral system. There can no longer be any justification for this anomaly. My amendment makes a simple and sensible change, and this Bill is an opportunity to get it done.

[Lord Collins of Highbury (Lab)]

Before the noble Lord sits down, could I ask a question? He referenced my noble and learned friend Lord Goldsmith. If he recalls, this issue came up during the debate on voting rights in the referendum. The noble Lord, Lord Green, referenced this as the second issue that my noble and learned friend Lord Goldsmith raised in his report: what is a British citizen? Does he think that fundamental question has been properly addressed for this purpose?

[Lord Green of Deddington (CB)]

A lot has changed in 14 years, but the thrust of what the noble and learned Lord, Lord Goldsmith, said is absolutely right. We now have a system that has developed somewhat in defining what a UK citizen is—I accept that—but it is not too difficult, is quite well known and has been discussed recently. I do not think that undermines his recommendation or the logic of saying that the clear thing, if you want to vote in this country, is to become a citizen, and you know how to do that.

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[Baroness Neville-Rolfe (Con)]

My Lords, I was sorry not to be able to speak at Second Reading. It is always a pleasure to follow the noble Lord, Lord Desai. Logic, clarity and lack of reciprocity call for Amendment 154, in the name of the noble Lord, Lord Green, to be taken seriously and for the questions he has raised to be answered. I look forward to hearing positively from my noble friend the Deputy Leader. I will not delay the House.

[Lord Collins of Highbury (Lab)]

My Lords, I have some sympathy with the points made, but I wish this amendment could have been debated in the group of amendments we had on the entitlement to vote, because I do not really want to move away from the principle I articulated before. Not everyone wants to lose the status of their nationality. For example, my husband does not want to give up his Spanish citizenship, which he may have to do. A number of European countries have started to change but they did not allow dual nationality. A lot of people could lie about that, but he does not want to give it up. I certainly do not want to give up my nationality.

When we were in the EU, we were in the comfortable position of being, as we used to describe ourselves, EU citizens; we could locate and meet our families in our respective countries with ease. Now that has changed and we accept that, but I do not quite understand why we do not accept that there is a settled status, where someone has lived in the country for 27 years, paid tax, national insurance and everything else—they have taken the responsibility of a citizenship—but for one reason or another do not want to take formal citizenship, and why that should preclude them from having the right to vote.

It is crazy that, as I mentioned, an Australian student who comes over for their OE can immediately apply for the right to vote. I would rather the debate focused on what entitles somebody to vote. We have talked about taxation, we have talked about responsibility, and I say that clear levels of residence should establish some basic rights, so that we treat people who live here equally, and when they contribute to the success of our country we should acknowledge that.

I come back to what the noble Lord, Lord Green, said. One of the issues his amendment ought to probe and cause us to think about is: what is a British citizen? He says that British nationals (overseas) are not included. We can make commitments suddenly; for example, we made a commitment to Hong Kong citizens who are BNOs because of the breach of an international agreement. I have no doubt that in future, as we have done in the past, we will want to protect our legacy. The noble Lord, Lord Desai, spoke about the legacy of British Empire, which of course we cannot ignore, and things have changed.

I welcome the fact that the noble Lord, Lord Green, has tabled this amendment but we need to consider it in the light of all the amendments we have had on the right to vote and what the qualifications are. I do not think we should ignore residency.

[Earl Howe (Con)]

My Lords, with Amendment 154 we return to the franchise. The purpose of the amendment, as the noble Lord, Lord Green, explained, is to require the Government to confine the voting rights of Commonwealth citizens to citizens of countries that grant British citizens the right to vote in their general elections. The effect of this would be to limit the franchise to Commonwealth citizens from countries where British citizens are entitled to vote in general elections.

I take this amendment seriously but perhaps I could clarify the position as it relates to Commonwealth citizens. First, it is important for me to point out to the noble Lord, Lord Wallace, in particular, that there is no blanket voting right in this country for Commonwealth citizens. The right to vote applies only to qualifying Commonwealth citizens: those who have leave to remain in this country or have such status that they do not require such leave. The noble Lord, Lord Green, asked me to expand on that definition. The definition of “Commonwealth citizen” is a broad term and is not limited to citizens from Commonwealth countries listed in Schedule 3 to the British Nationality Act 1981. It applies equally to other types of British nationality defined in Section 37 of that Act. This includes Hong Kong British nationals (overseas), British overseas citizens and British Dependent Territories citizens. It also includes British Overseas Territories citizens.

I acknowledge that the approach adopted in relation to Commonwealth citizens is different from that that we take towards other categories of foreign nationals. However, there are sound and well-rooted reasons for that difference. The rights of Commonwealth citizens to vote are long standing and reflect the historic connections and well-established links with the Commonwealth of this country and Her Majesty the Queen, as the noble Lord, Lord Desai, outlined.

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[Earl Howe (Con)]

The noble Lord, Lord Desai, is once again perfectly right.

Successive Governments and Parliaments since 1981 have concluded that the existing voting rights of Commonwealth citizens should not be disturbed, and it is on this basis that the Commonwealth citizens are granted the right to vote in UK elections.

I have enormous personal sympathy with the noble Lord, Lord Collins, and his husband in the situation he has outlined. The best answer I can give him is to refer back to the speech of the noble Lord, Lord Desai. As a country, we have found ourselves at various times in our history as members of different families of nations; for example, the family of EU member states and the family of Commonwealth nations. It is therefore perhaps unsurprising that the links and historic traditions, and hence entitlements, relating to each such family are different from one another. Our formal ties with the EU have been severed. Our ties with the Commonwealth endure. The weight of history plays a very considerable part in all sorts of aspects of our national life—

[Lord Collins of Highbury (Lab)]

The noble Earl says that our ties with the Commonwealth endure. I agree with the sentiment but the reality, as the noble Lord, Lord Desai, said, is that the relationship with Commonwealth countries has changed fundamentally, and is continuing to change. As Prince William said yesterday in his press statement—I have forgotten the exact words but it seemed relevant to me—the relations endure but Commonwealth countries change. The fact is that we have not changed what we define. With all these different British nationals as a consequence of our imperial legacy, we find it very difficult to define citizenship in that regard. That is why I come back to this fundamental point. I am not arguing that my husband has a special right as a former EU citizen. I am saying that someone who has lived here for 27 years, and paid tax and national insurance, should have the right to vote. It is residence that I am arguing for, which is what a number of noble Lords have been making the case for.

[Earl Howe (Con)]

My Lords, I understand that. It is clear that this is an argument that runs very deep. We may or may not return to it on Report but if there is anything else that I can add to the remarks that I have made, I will ensure that a letter is sent to all noble Lords who have taken part in this short debate.

In short, it is for reasons of history and because of the well-established ties that we in this country have with the family of nations that we call the Commonwealth that the Government have no plans to change the voting rights of Commonwealth citizens. Therefore, I am afraid we cannot support this amendment.

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I say to the Minister: please take this back as a matter of urgency. This is an area which, as we all know, contains a number of new threats to democracy from the way in which our younger generation, in particular, now live online, and we need to have some strong safeguards.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for his excellent introduction to a range of amendments. We should not simply think that negative campaigning and threats to our election process are new things as a result of new technology. These sorts of things have been going on for many years. Certainly, I have seen a political party put one leaflet down one street saying one thing and then another down another street saying the complete opposite.

All of these things are addressed effectively through effective transparency, with people knowing exactly where this information comes from. I think the noble Lord, Lord Mann, is right there. That is why it is important that the Minister specifically addresses the point in Amendment 180A. I am worried that we spot a problem, understand the issue, say we are addressing it in legislation but then create a loophole where everyone can escape.

I am grateful for Adobe sending me its briefing on this issue. It basically says that we have the technology and there is a standard being developed for content authenticity initiatives—CAI—which, if adopted, and it is being adopted, can address this issue. I do not understand why we have this loophole. Technology can ensure that the imprint of who has created and published the content is there. I do not see the circumstances where it is not possible. Even if it is not possible on the face, they now have the technology to point out easily how you find it. Therefore, as the noble Lord, Lord Clement-Jones says, I do not see why we have this wording of “not reasonably practicable”. I am not even sure I would agree that it is not possible. It is possible—the technology is there so we should do it.

Noble Lords have referred to the Russia report. We said at the beginning of Second Reading—and I am not going to make a Second Reading speech—that the Bill is a missed opportunity. It could have embraced a lot more and the issues identified in that report will need to be addressed in future legislation as they have not been addressed here.

I hope the Minister can specifically address the issue in Amendment 180A; I particularly hope she has seen the briefing from Adobe and the industry which says that this is possible. They have created a standard which they expect everyone to adopt—in fact, Facebook, Twitter and others are all adopting it. If they are adopting it, can we not use the legislation to ensure that it becomes compulsory for all political actors to comply with this legislation and that we do not have a loophole?

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, for a very thorough piece of scrutiny of this part of the Bill. I think it would be useful if between now and Report we had a meeting with him and other interested parties to discuss this further and also address some of his very in-depth speech that I will not answer this evening because we might be here all night. We will get answers to him very quickly so that we can discuss them when we have that meeting.

The noble Lord, Lord Mann, and many others are right: this is fast moving. What we see today is probably not what we will see in five years’ time, and we need to future- proof. I think we all understand that.

There were some very specific questions that I will answer upfront because that will give some context to what else I am going to say. First, on digital imprints, it is important that “reasonably practicable” is understood. It should be read as commonly understood; “reasonably practicable” is commonly understood. The Electoral Commission and the police will need to interpret this phrase in context in the course of their enforcement of the Bill. The statutory guidance will provide further details on the location of this imprint and what is required. There will be further guidance on this.

A number of noble Lords spoke about the Intelligence and Security Committee and said that political adverts should include an imprint. The Government’s digital imprint regime delivers the ICS’s recommendation to introduce a requirement to add an imprint on digital paid-for political advertising. As digital campaigning is not confined to election periods or geographical boundaries, the regime is intended to apply all year round, UK-wide, and regardless of where in the world content is promoted from. Following a conviction or a civil sanction, the courts can make an order or the Electoral Commission may issue a notice to anyone, including social media companies, requiring them to remove or disable access to infringed content. Failure to comply with a notice or order would be a criminal offence.

The noble Baroness, Lady Jones of Moulsecoomb, brought up the issue of targeting messages. Targeting messages at voters is a legitimate activity that allows campaigners to maximise their resources and target their message at the right audience. All campaigners must comply with direct marketing and data protection laws when using personal data in their campaigning, but it is a legal activity.

Elections Bill

Lord Collins of Highbury Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 28th March 2022 Lords Chamber

Finally, I will address the series of amendments tabled by the noble Lord, Lord Stunell, and the noble Baroness, Lady Bennett, relating to the values of donations. Amendment 212A, from the noble Baroness, Lady Bennett, seeks to cap donations that any one individual or organisation can make to a party or candidate at £500 a year. It provides for one exception: donations from trade unions. If this measure was adopted, it would mean that trade unions would be the only donor group capable of making significant contributions to political parties and campaigners. It seems quite an uneven approach, to say the least, to restrict everyone except trade unions from making political contributions.

[Lord Collins of Highbury (Lab)]

Would the noble Earl acknowledge that trade unions are different? They are highly regulated and the law was changed to ensure that every individual who makes a contribution to a political fund has to approve it. It is contracting in now—a change this Government made without consultation with other parties. So to put trade unions in the category of a millionaire or a corporate company is totally wrong.

[Earl Howe (Con)]

My Lords, I am not casting aspersions on trade unions. I was seeking to suggest that making them a unique case, as the amendment seeks to do—

[Lord Collins of Highbury (Lab)]

I have explained why they are a unique case: you have already changed the law without consultation with any party. You changed the rules, forcing individual trade union members to contract in to their political funds. Their political funds are highly regulated and highly controlled, and were subject to a change in the law—so they are different.

[Earl Howe (Con)]

I do not contradict the noble Lord in any respect as to what he said about trade unions. I say again that I cast no aspersions on trade unions or their practices at all. I am simply saying that it seems unfair and undemocratic to have this distinction made in the way the noble Baroness seeks to do in her amendment.

Fundraising is a legitimate part of the democratic process. There is no cap on political donations because parties, candidates and other types of campaigner have strict limits on what they can spend on regulated campaign activities during elections.

The other amendment in the noble Baroness’s name—

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Moved by

[Lord Collins of Highbury]

207: After Clause 59, insert the following new Clause—
“Registration of party emblems
(1) Section 29 of PPERA (registration of parties) is amended as follows.(2) After paragraph (d) insert—“(e) closely resembles the emblem of a proscribed terrorist group or organisation.””Member’s explanatory statement
This amendment would prevent the registration of Party emblems which closely resemble the emblem of a proscribed terrorist group or organisation.

[Lord Collins of Highbury (Lab)]

My Lords, I will be very brief. This is a probing amendment with which we are seeking to better understand the powers we may currently have, and I hope the noble Baroness will be able to reassure us that we do have powers to address this issue.

[Baroness Scott of Bybrook (Con)]

I thank the noble Lord for being very brief, and I will try to be nearly as brief. I am sure that it is a very well-intentioned amendment, but its effect would be minimal. I can assure the noble Lord that Section 29 of the Political Parties, Elections and Referendums Act 2000 already gives the commission the discretion to refuse the registration of an emblem where it is in its opinion obscene or offensive. According to the commission’s guidance on emblems, which is available online, all applications to register an emblem are assessed on a case-by-case basis, but are likely to be rejected if the emblem contains offensive language or terminology or links to something generally accepted as offensive with a relevant group of people.

On a more general note, Section 29 provides the commission with an appropriate and practical level of discretion to refuse or allow the registration of party emblems. Therefore, the Government consider that Section 29 already sufficiently provides for the effect of the noble Lord’s amendment, Therefore, I respectfully ask him to withdraw it.

[Lord Collins of Highbury (Lab)]

In the light of those comments, I beg leave to withdraw the amendment.

Amendment 207 withdrawn.

Sue Gray Report

Lord Collins of Highbury Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

I am grateful to the noble Baroness for repeating today’s Statement by the Prime Minister—a Statement that, for anyone who heard it for the first time around, came across ever so briefly as an apology before moving along to its primary purpose: a thinly veiled attempt to lay the blame on others and move the news agenda on; a desperate attempt that will fool nobody who has read Sue Gray’s report and who understands the serious implications of the fact that the Metropolitan Police has 12 cases of concern that it believes reach the threshold of potential criminality. These cases include evidence of serious and flagrant breaches of lockdown, including one party that Mr Johnson definitely attended and another in his Downing Street flat—he refuses to say whether he was there or not. We also now know that the police have 300 photos and over 500 documents in relation to these cases.

We are thankful for Sue Gray’s diligence and professionalism in carrying out her investigation, but the Prime Minister must keep his promise to publish the full report when it is available. I therefore ask the noble Baroness the Leader, on behalf of all in your Lordships’ House, to encourage him to do so and respond to me in writing when she has done so. We are all aware of the deep sacrifices made by many people in our country over the past two years. Anyone with a shred of decency will know what that involved; the missed time with loved ones and close friends, not being there at key moments in the calendar of life and death. Anyone who has had a conversation with friends or family in recent weeks about those missed events will know that guilt abounds among those who were not willing to take a chance during their moments of deep despair. They did not want to risk breaking or bending lockdown rules—not even in the darkest of times.

That is why the revelations of misbehaviour at No. 10 are so appalling—and with them, the Prime Minister’s attempt to distance himself from what happened on his watch, under his lockdown rules. As my right honourable friend Keir Starmer said earlier this afternoon:

“Our national story about covid is one of a people who stood up when they were tested, but that will be forever tainted by the behaviour of this Conservative Prime Minister.”


Mr Johnson has tried to take the public for fools, and even now is playing for time, trying to kick the can down the road until the police conclude their investigation. That is a protective shield, temporary or otherwise, which flies in the face of the honesty, integrity and moral authority that the office of Prime Minister expects. Is anyone really surprised by any of this? Is the Leader of the House herself surprised—or does she want to vouch for his character?

In his Statement today the Prime Minister said that

“it is clear from Sue Gray’s report that it is time not just to review the civil service and special adviser codes of conduct, wherever necessary, to … take account of Sue Gray’s recommendations, but to make sure that those codes are properly enforced”.

That is a clear attempt by Mr Johnson to try to apportion blame elsewhere. However, this is not just about codes of conduct being broken but, as the report itself makes apparent, it was also a failure of leadership—an issue not just of structures in the workplace but of the culture.

Does the Leader of the House not agree that breaking such codes is not the whole picture? It is also the failure of those in leadership positions, including the person at the top, to ensure adherence and enforcement. Perhaps the Prime Minister’s own failure to deal with the Home Secretary breaking the Ministerial Code signalled to others working at No. 10 that codes and rules are little more than an inconvenience to how they should conduct their business.

Mr Johnson’s close allies are, like him, keen to move on to other issues both at home and abroad. Yet this afternoon we heard reports that a vital telephone call with President Putin was cancelled—as the West faces its gravest threat to peace in decades. I hope that the Leader of the House can assure noble Lords that these reports are incorrect, and that the call went ahead as planned.

It will be said that Sue Gray’s report is a distraction—but let us not forget what, and who, is at the root of this. A Prime Minister who is having to make statements in Parliament on the back of an investigation into potential criminal behaviour by his staff and himself, during a pandemic whose legal restrictions they designed. That is the issue at hand, and it goes to the heart of Mr Johnson’s character and his suitability for high office.

[Lord Newby (LD)]

My Lords, I suspect that the noble Baroness the Leader of the House can never have been so uncomfortable in repeating a Statement by the Prime Minister as when she read out the Statement today—because it is truly abject. It relates to 16 gatherings in Downing Street at a time when such events were not allowed for the rest of us, 12 of which are the subject of an ongoing criminal investigation by the police.

Although the Gray report contains no factual evidence and is, in substance, only six pages long, its conclusions are damning. They are that some of the gatherings, at least, represent

“a serous failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.”

It talks of

“failures of leadership and judgment”.

It states:

“Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”


It says:

“The excessive consumption of alcohol is not appropriate in a professional workplace at any time.”


It says that the use of the Downing Street garden was “not appropriate”.

If this were any other institution—a school, a hospital, or a professional services firm—these conclusions, coupled as they are with an ongoing police investigation, would have led to the suspension or dismissal of the head of the institution. That action would be taken because the leader of any other institution has to take responsibility for the ethos of that institution, even if they themselves did not break the rules. In this case, however, not only was the ethos wrong, but the Prime Minister appears to have broken the rules himself.

Far from resigning, however, the Prime Minister thinks that saying sorry, tinkering with the Downing Street structure and amending the Civil Service Code is enough. He says that the only issue facing him, and the country, is whether the Government can be trusted to deliver on their policy programme. But it is not. The question is whether the Prime Minister can be trusted to behave ethically and in accordance with the rules. Because if he cannot, he is not fit for office. It is as simple as that.

The report shows that, in advance of any judgment by the police, the Prime Minister has presided over multiple breaches of the rules. By breaking his own rules, he loses any capacity to persuade others—whether that be individual citizens or the President of Russia—to take his injunctions to follow the law seriously. To put it another way, he loses the capacity to govern.

The Leader of the House is an extremely invidious position, because she is having to answer questions on what is, in reality, a personal statement by the Prime Minister about his own probity—for which she can hardly be held responsible. So I shall ask her only three questions. First, as the lack of leadership shown over this affair starts at the top, in addition to the Civil Service Code will she enjoin the Prime Minister to amend the Ministerial Code, to tighten up the rules for Ministers, and not just for the officials whom they are supposed to lead?

More importantly, the noble Baroness is a member of the Cabinet. Her job is to proffer her views to the Prime Minister and then, under the rules of collective responsibility, to follow Cabinet decisions. But I think she also has an obligation to your Lordships’ House to let us know where she stands. Does she believe that the failures of leadership shown by the Prime Minister justify her resignation? I am sorry, I meant “his resignation”; I do not hold the noble Baroness responsible for the sins of the Prime Minister. Does she think those failures justify his resignation? And if not, on what basis does she believe the British people can ever trust him again?