Higher Education (Freedom of Speech) Bill

Baroness Barran Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[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 Hope of Craighead (CB)]

My Lords, I am grateful to all those who have spoken in this short debate and, in particular, to the Minister for her explanation.

If I may concentrate particularly on government Amendment 7, it achieves my main purpose in my Amendment 1 to avoid the suspicion that, when you talk about freedom of expression in this Bill, you are talking about something quite different from what is referred to in Article 10 of the convention. The reference here makes it clear that we are talking about the same thing.

[Baroness Barran (Con)]

I think I heard the noble and learned Lord say “freedom of expression” in this Bill, but I think he meant to say “freedom of speech”.

[Lord Hope of Craighead (CB)]

Yes—I have got them the wrong way round, as I frequently do. But it does not really matter, because we are talking about the same thing, which is the particular problem that I was concerned with.

I have great respect for the noble Lord, Lord Moylan, with whom I had a very deep and interesting discussion. I must confess that I do not have the same concern as he does about the reference to Article 10(1) only in the definition that the Government are proposing. If we read on beyond that reference, it says

“Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act”.

The way in which you work out its effect is to read on to paragraph (2). I therefore think that, in short and very subtle terms, it achieves the very point. I do not really agree with the noble Lord’s concern, which I think is met by those particular words “as it has effect”.

For these reasons, and with thanks to the Government for their willingness to come forward as far as they have done, I withdraw Amendment 1.

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Moved by

[Baroness Barran]

2: Clause 1, page 2, line 4, leave out “, beliefs or views” and insert “or opinions”
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).

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[Baroness Thornton (Lab)]

My Lords, we have had a thorough exploration of the issues that would face student unions as a result of the passage of the Bill. Amendment 16 in the names of my noble friends Lord Collins and Lord Blunkett and me, with the support of the noble Lord, Lord Wallace of Saltaire, is not intended to be patronising. It seeks to ask the Government whether they will ensure that the guidance to student unions gives young people all the help and support it can to carry out the duties and responsibilities that the Bill will impose on them. Some of them will be 17, 18 or 19 years old, and this will be something they are absolutely unfamiliar with. That is really all that one needs to say about Amendment 16.

I agree that Amendments 11, 15 and 25 are probably not appropriate for the Bill. As somebody who has been a moderately successful heckler myself, I think they certainly should not be in the Bill.

[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.

Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures

“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.

Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.

The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.

I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.

I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.

The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.

Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.

I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.

Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include

“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.

This must include

“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.

The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.

In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.

I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.

[Lord Hunt of Kings Heath (Lab)]

My Lords, that has been a very helpful debate and I thank all noble Lords who have taken part. My noble friend Lady Morris suggested that some of us might have taken part in heckling in the past. I have to confess that I took part in one of the first university sit-ins at Leeds University in 1968, when—led by one Jack Straw, who was then president of the Leeds University union—we heckled Mr Patrick Wall, an MP at the time.

The noble Lord, Lord Grabiner, made a very important point about drawing the distinction between quite legitimate heckling and the kind of intimidatory action that we saw taking place in relation to a number of women academics. The noble Lord, Lord Macdonald, is absolutely right: I agree that there are elements of criminal behaviour. The problem is that universities were very weak. I really regret that the Bill has been necessary, but I am afraid that the lack of backbone shown by so many university leaders is why we are here today.

I agree with noble Lords that this is not a matter for primary legislation. Indeed, I am not quite sure how you would ever draft anything like it. We tried in Committee but I think one has to accept that it is not possible. The codes of practice and the oversight of OfS, though, are clearly crucial to the success of this legislation, so this has been a very good debate.

In relation to Amendment 16, I very much hope that the OfS will take note that any guidance it issues needs to be fully understandable by students within the student union. Having said that, I beg leave to withdraw my amendment.

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Moved by

[Baroness Barran]

12: Clause 2, page 4, line 14, at end insert—
““member”, in relation to a constituent institution of a registered higher education provider, does not include a person who is a member of the institution solely because of having been a student of the institution.”Member’s explanatory statement
This amendment excludes those who are members of a constituent institution (eg a college), solely due to having been a student of the institution, from being a “member” of a constituent institution for the purposes of Part A1 of the Higher Education and Research Act 2017.

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[Lord Wallace of Saltaire (LD)]

My Lords, I hope that the Government will take this away, consider whether there is a way of adapting to some of the valid points made on these amendments and, if necessary, come back at Third Reading—when, I suspect, any further government amendments would be welcome.

I will briefly raise a question that I have already raised with the noble Baroness’s private office, which is how Clause 9 on overseas funding relates to a substantial clause of the National Security Bill, which had its Second Reading yesterday. It seems in some respects to overlap or possibly duplicate it. We have to be very careful about the potential to ask universities to supply further information, answer reports and weigh down their central administration. We already have the National Security and Investment Act, which lays down a number of obligations on universities, which they are fulfilling—justified but additional burdens. This Bill and the National Security Bill will potentially add a further layer of detailed reporting by universities to government, which I am not sure government will be entirely capable of handling. I wish to mark that before those two Bills pass: we should be very clear that they are compatible with and complement, rather than contradict, each other.

Having said that, the question of funding and student unions wants looking at. I was not aware that there is significant overseas funding for student unions. I suppose it is possible that the Chinese, Saudi or even Russian Governments could decide that covert funding of student unions would be a way to influence the British debate, so perhaps there is a half-justification for this. But these Benches, having talked to a number of student unions, are concerned about these small, underfunded bodies, which have a very rapid turnover of officers—as is their nature—having burdens placed on them that are heavier than they can cope with and are not justified by the situation. I mark that as a caveat and hope that the Government take it back for further consideration.

[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.

New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.

The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including

“a constituent institution of the provider”.

The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.

[Baroness Thornton (Lab)]

I think what the Minister said was quite clear, but the concern is whether that is a satisfactory way to proceed for collegiate universities.

[Baroness Barran (Con)]

As I said, it builds on the existing approach to regulation of constituent colleges.

Amendments 27 and 28, also tabled by the noble Lord, Lord Collins of Highbury, seek to reduce the scope of Clause 9. Amendment 27 would allow the Office for Students to seek information only where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. Amendment 28 would remove overseas commercial partnerships from the definition of “relevant funding”, meaning they would not be within scope of the clause.

New Section 69D(1) will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk which the funding may pose to freedom of speech and academic freedom in the provision of higher education. The only way that the OfS can monitor the funding is if it has the necessary information. The power to require such information is linked to the registration condition that already exists under Section 8(1)(b) of the Higher Education and Research Act 2017; that is, condition F3 as described in the regulatory framework that I have already mentioned. Clause 9 is not about the speculative investigation of individual contractual arrangements; it is about routine monitoring of relevant information, at a sufficient level of detail, but no more than that, to allow the OfS to monitor the risk to freedom of speech.

As I said before, Amendment 27 would limit the power to require information from providers to where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. That test sets a very high bar which could arguably never be met. The OfS would not be in a position where it could suspect a breach because it would not have evidence to support that. However, at the same time, the amendment would mean that it would not be able to require information that may provide such evidence, so this would be circular, resulting in the inability of the OfS to obtain information on overseas funding. That in turn would mean that the OfS would not be able to carry out its duty to monitor the risk to freedom of speech that overseas funding may pose. This would mean that new Section 69A would be ineffective and would subvert the whole point of the overseas funding clause.

I should add that the effect of the drafting of this amendment would not be to prevent commercially sensitive information becoming subject to freedom of information requests through the regulator having requested it, which I understand the intention of the amendment to be, noting that the amendment does not refer to that and focuses simply on suspicion of breach. In any event, approved fee cap providers are themselves subject to freedom of information requests, so disclosure of information to the regulator would not result in new exposure to that legislation, and, of course, the OfS already holds sensitive information about providers as part of its overall regulatory role—for example, financial information—so this will not be new.

As for Amendment 28 and the removal of commercial partnerships from the scope of new Section 69A, the Government are of the view that the funding received from such partnerships could pose a risk to freedom of speech and academic freedom. Accordingly, if we do not include commercial partnerships in new Section 69A, we would be leaving a large gap.

The OfS will decide on the level of detail that it will need as regards the information that it will require from providers, liaising with the sector as need be in order to determine that. The OfS will of course consider how to handle any sensitive commercial information that it requires to be provided, but, as I have said, it already holds sensitive information, so this would not be new.

I note that the noble Lord references in his explanatory statement that the clause may force a violation of commercial contracts not governed by UK law. My understanding is that commercial contracts are likely to contain a standard clause dealing with disclosure to regulators, so disclosure under the Bill would be covered by that.

As for the particular situation of a university press, which my noble friend Lord Patten of Barnes referred to, such a body will be in scope only if it is legally part of the provider. In that case, it would not be an independent trading entity. If it chooses to have as its legal status to be a department of a provider, as I am aware is the case for Cambridge University Press and Oxford University Press, it inevitably brings itself within scope of regulation as a part of that provider. I would be more than happy to follow up with my noble friend if he would like to progress that conversation or requires any further clarification on that point.

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[Baroness Thornton (Lab)]

I am still not clear how the fishing expedition that the noble Lord, Lord Patten, mentioned would be avoided. That is the point here, is it not? There is a vulnerability and a risk. The Minister needs to explain that to the House—if not now, certainly before the next stage of the Bill—otherwise we will need to return to this. It is not at all clear to me how that risk is averted through the regulation that the Minister has explained.

[Baroness Barran (Con)]

Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—

[Baroness Royall of Blaisdon (Lab)]

My Lords, I am terribly sorry to interrupt the Minister’s flow again. I am very grateful to her for suggesting that she should continue the conversation with the noble Lord, Lord Patten, and for saying that she will write to my noble friend. However, if we still have deep concerns about this—I think we are right to be deeply concerned—I suggest that we come back to it at Third Reading, notwithstanding what the letter may explain.

[Baroness Barran (Con)]

I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will understand that the House is still not satisfied that we are in a safe place with Clause 9. I hope we can achieve that before we get to the next stage of the Bill, but we may need to return to this at that stage. I beg leave to withdraw the amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, I support the thrust of both amendments, but I am rising to add to my declaration of interests earlier. I noted my role as an academic at Cambridge University. I am also a non-executive director of the Oxford International Education Group. I neglected that because the previous declaration linked to what I was saying. I was advised by the clerks to pop up at some point today. I declared it appropriately in Committee.

[Baroness Barran (Con)]

My Lords, I will now address the group of amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendment 29, tabled by the noble Lord, Lord Collins of Highbury, and very ably presented by the noble Baroness, Lady Thornton, seeks to impose extra requirements on the appointment of the director for freedom of speech and academic freedom and their role once in post. Amendment 30, tabled by noble Lord, Lord Wallace of Saltaire, similarly focuses on the appointment process.

As I said in Grand Committee, I want to be clear that

“the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017.”—[Official Report, 14/11/22; col. GC 751.]

Although this is not officially a public appointment, it will be done in accordance with the public appointments process. This will ensure the independence of the process.

It is not necessary to include the additional requirement of confirmation of the appointment by the Education Select Committee. Such confirmation is not required for other members of the Office for Students board more generally, including the chief executive and the director for fair access and participation, who has a similar level of responsibility. The only role within the OfS which has involved prospective appointees appearing before the Select Committee is that of the chair. It would therefore be disproportionate and an unnecessary level of scrutiny that would set an unhelpful precedent for appointments to both the OfS and other public bodies, including those outside the higher education sector.

As for the involvement of the higher education sector in the appointment through formal consultation—I am afraid I cannot comfort the noble Lord, Lord Wallace—which is envisaged under his Amendment 30, this conversely would threaten the independence of the role.

I turn to the proposed additional reporting requirements to Parliament in Amendment 29. There are already several provisions in the Bill that provide for scrutiny of the operation of the Bill once enacted. Under Clause 5, the Secretary of State can ask the Office for Students to report on freedom of speech and academic freedom matters in its annual report or in a special report. This report must be laid before Parliament. This is based on the approach in Section 37 of the Higher Education and Research Act as regards equality of opportunity.

Under Clause 9, the annual report must include a summary of information on overseas funding and conclusions on patterns and trends of concern. This is based on Section 68 of the Higher Education and Research Act as regards financial sustainability.

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[Baroness Thornton (Lab)]

Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?

[Baroness Barran (Con)]

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

[Lord Wallace of Saltaire (LD)]

The reason why we stress the importance of this appointment commanding confidence is that, when we began with the Bill—in particular with the think-tank paper that fed into it—there was a sense of “There is a problem here; the universities are desperately left-wing and we need to control them.” Many of us start from the position, on the contrary, that our universities have a worldwide reputation and are among our country’s greatest assets. If we are to maintain that reputation and the quality of those assets, we need to make sure that those who regulate them work with them, not against them. Finding some way of making sure that this key appointment starts on the right balance, with the right relationship with those it has to regulate, is therefore very sensitive and important. However the Government do this matters enormously.

[Baroness Barran (Con)]

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.