Higher Education (Freedom of Speech) Bill

Claire Coutinho Excerpts

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Education (Claire Coutinho)]

I beg to move, That this House disagrees with Lords amendment 10.

[Mr Deputy Speaker (Sir Roger Gale)]

With this it will be convenient to consider Lords amendments 1 to 9, 11 and 12.

[Claire Coutinho]

Mr Deputy Speaker:

“Freedom is a fragile thing…it must be fought for and defended constantly by each generation”.

Ronald Reagan said those words in 1967. More than 50 years later, our generation is facing our own battle for freedom: the freedom to express our opinions and debate controversial ideas without fear or favour. Ironically, this is happening in our universities, which traditionally have been the very institutions that have challenged prevailing wisdom, from the effects of smoking to the theory of evolution and our understanding of climate change. That is why I am delighted to be here today to discuss the Higher Education (Freedom of Speech) Bill.

First, I thank my predecessors for all their work in taking the Bill through the House last year, and my ministerial colleagues for their efforts in the other place. This is a contentious subject matter, and I know they have spent many hours thoughtfully considering the points that have been raised on all sides throughout the Bill’s passage. I am pleased that, after discussions, noble peers have now agreed that there is an issue to address, as the noble Lord Collins of Highbury acknowledged on Report. I am grateful to peers for their careful consideration of the Bill.

Today, I ask my hon. Friends and hon. Members to consider the amendments made in the other place. I will address each set of amendments individually, beginning with the statutory tort, which provides a means by which individuals can seek redress through the courts if they believe that certain duties in the Bill have been breached. This measure will be critical to stimulating the cultural transformation that we need. I am grateful to Baroness Barran and Earl Howe for leading debate about the tort in the other place. In the end, the other place voted in favour of amendment 10 to remove the clause containing the tort from the Bill.

I assure the House that we heard very clearly the strength of feeling about the tort. Those feelings have rightly set the context for careful deliberation about the Government’s position now. I have spoken at length to leaders and academics in the higher education sector. I stand firm in my belief that the tort is an essential part of the Bill, and I disagree with its removal.

[Munira Wilson (Twickenham) (LD)]

The Minister will forgive me if she is coming to this point, but as a Liberal I believe passionately in freedom of speech, as I believe does she. The clause to allow statutory tort was removed by a Conservative former Universities Minister in the other place, with cross-party support. Does she agree that, rather than supporting and encouraging free speech, we risk inhibiting it? Cash-strapped student unions may not invite particular speakers for fear of legal proceedings that they would not be able to defend. Does she agree that she is actually working counter to her own values and beliefs?

[Claire Coutinho]

Having spoken to many academics and people in universities at the moment, I firmly disagree. They are the people who would like that sort of protection. They think it would give them a legal backstop to the duties that we are placing otherwise in the Bill. Let me reassure the hon. Lady that the Government do not want providers being taken to court without good reason and being forced to defend themselves against unmeritorious or vexatious claims. We do not expect that to happen. The tort has always been considered a backstop.

The vast majority of complaints should be resolved through the new, free-to-use Office for Students complaints scheme, or through the Office of the Independent Adjudicator for Higher Education. In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS or the OIA. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

The problem with the tort clause is that it also applies to student unions and student associations, which were always free to invite people that they wish to invite along. Conservative clubs only invited Conservative MPs. They did not have free speech in the club per se; they were Conservative-minded and they did not necessarily invite Labour-minded people. But within the student union and the university as a whole, students were free to have clubs and societies that might be Labour clubs, Marxist clubs, further right clubs or whatever mix they wanted. That is enshrined in the Education Act 1994 and the judgment of Baldry v. Feintuck. The danger is that the tort affects those clubs and will have a chilling effect on student unions, which might say that it is easier for those clubs not to exist, and they will therefore fall out of regulation—

[Mr Deputy Speaker (Sir Roger Gale)]

Order. If the hon. Gentleman wishes to make a speech, he should put his name in. That was not an intervention.

[Claire Coutinho]

Respectively, I disagree with the hon. Gentleman. I do not think that would be the case. The Government are committed to strengthening the protection for lawful freedom of speech on campus, as set out in our manifesto. If providers fail in their duty to take steps to secure freedom of speech within the law, individuals who have suffered as a result should be able to secure real remedies, including by means of civil proceedings. For all those reasons, our position is that the tort should be reinstated in its original form for further consideration in the other place.

Amendment 3 was tabled in the other place by the noble Lord, Lord Collins of Highbury, and received support from all sides. It will prohibit higher education providers and their constituent colleges from entering into non-disclosure agreements with staff members, students and visiting speakers in relation to complaints of sexual misconduct, abuse or harassment or other forms of bullying or harassment. I believe that Members on both sides of the House will welcome the inclusion of this provision in the Bill. It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them even with their family or close friends. This does not come down to politics, in my view; it is about doing what is right.

[Layla Moran (Oxford West and Abingdon) (LD)]

Will the Minister give way?

[Claire Coutinho]

I will not, as I have to make some progress.

It is impossible to understand the full extent of this practice—by definition, NDAs too often remain hidden from view—but a 2020 BBC investigation found that nearly a third of universities had used NDAs to deal with student complaints. I agree with those in the other place, who proposed and supported the amendment, that we cannot allow this practice to continue.

Many institutions have already signed up to a voluntary pledge rejecting the use of NDAs in such circumstances. That pledge was launched by the previous Minister for Higher and Further Education and now the Secretary of State for Science, Innovation and Technology, my right hon. Friend the Member for Chippenham (Michelle Donelan), together with Can’t Buy My Silence. However, many institutions have not done so, despite strong encouragement from the Government. This amendment builds on the strong foundation of the Government’s work in this area over the last year and brings a legislative means to end this abhorrent practice for good.

It is important to appreciate that this is not a total ban on the use of NDAs. There are some circumstances where an NDA is appropriate—for example, to protect intellectual property or commercially sensitive information —but as I said, using NDAs to silence victims of this type of conduct is entirely wrong. I therefore wholeheartedly support this amendment. Not only is it vital for the welfare and wellbeing of victims, but by enabling them to speak out and provide information to others about their experiences, it will extend protections to students and others on campus.

I will now speak to the group of amendments concerning the definition of freedom of speech. There was much debate in the other place about whether the Bill would benefit from a more expansive definition of freedom of speech, and peers subsequently agreed a number of Government amendments to that effect: amendments 1, 2, 4, 5, 8 and 9.

Amendment 4 amends the provision in new section A1(11) of the Higher Education and Research Act 2017, inserted by the Bill, which previously set out what freedom of speech in the 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)”.

That wording is derived from article 10(1) of the European convention on human rights and is also used in the Bill of Rights Bill. There is also a reference to article 10(1) of the ECHR, as incorporated by the Human Rights Act 1998. The drafting is deliberate in reflecting that freedom of speech in the Bill has broader application 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 on amendment 4. For example, where previously the Bill referred to “ideas or opinions” in certain provisions, to achieve consistency, those references need to be changed to “ideas, beliefs or views”. These consequential amendments do not change the meaning of the original drafting.

There are also minor and technical amendments made by the Government to the Bill. Amendments 6, 7 and 12 clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life—in particular, members of the governing councils of universities and also retired academics who are emeritus professors.

However, it became apparent from debate in the other place that some universities and colleges treat their students as members for life—for example, the University of Cambridge. As a result, the Government tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. These amendments do not affect the position where a current student’s freedom of speech is wrongly infringed, in so far as they may still make a complaint about that even after they have left university.

Finally, amendment 11 distinguishes between new functions imposed on the OfS by the Bill. It will amend the power in new section 69A(2) of the Higher Education and Research Act 2017, inserted by the Bill, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values. The original drafting replicates section 35 of the Higher Education and Research Act 2017 about identifying good practice relating to the promotion of equality of opportunity.

However, that wording might lead to confusion that this power relates to the new duty on providers and colleges to promote the importance of freedom of speech and academic freedom that is in new section A3 of the 2017 Act, inserted by clause 1 of the Bill. I can confirm that it does not. The OfS will have a duty under section 75 of the Higher Education and Research Act to give guidance on how to comply with the duty under section A3. There is no overlap with section 69A(2). Accordingly, section 69A(2) is different, providing the OfS with a general power to disseminate good practice and advice on how to support freedom of speech and academic freedom. The amendment makes that distinction clear.

I hope my words today have provided clarity and reassurance on the amendments made in the other place. Once again, I thank Members of the other place for the time and scrutiny they gave to the Bill. Our opinions on the statutory tort differ, though, as I still firmly believe it is an essential part of the Bill and an integral part of ensuring that freedom of speech is properly protected in our universities.

--- Later in debate ---

[Claire Coutinho]

I thank all Members for their contributions and particularly eloquent representations. They have shown how important it is to the wellbeing of our society that we can agree to disagree, that we can debate controversial and unpopular ideas, and that we recognise that the only way to change people’s minds is to win arguments, not to silence them.

I have listened to the concerns about the tort. Those who speak about a chilling effect speak as if there is not already a chilling effect on campus. That is why we think it is such a vital legal backstop. The hon. Member for Warwick and Leamington (Matt Western) made the astonishing if not surprising claim that the Bill is not needed at all. He may wish to speak to his party colleague the noble Lord Collins of Highbury, who has said that, through the dialogue and discussions that he has had as the deputy Leader of the Opposition in the other place, he accepts the need for the Bill. I suggest that the hon. Gentleman has those discussions himself.

[Matt Western]

I am sure that Hansard will have recorded that when I used the word “otiose”, I was talking about the tort.

[Claire Coutinho]

I think there was some significant questioning of the Bill, and I suggest that the hon. Gentleman goes to speak to Lord Collins of Highbury in the other place. I commend the Government’s position to the House.

Question put, That this House disagrees with Lords amendment 10.

Higher Education (Freedom of Speech) Bill

Claire Coutinho Excerpts

Consideration of Lords message
Tuesday 2nd May 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Education (Claire Coutinho)]

I beg to move,

That this House agrees with the Lords in their Amendments 10B, 10C and 10D; disagrees to their Amendment 10E, and do propose in lieu of their Amendment 10E Amendment (a) to the words restored to the Bill by Commons disagreement to Lords Amendment 10.

It is almost two years since the Bill was introduced to the House in defence of the fundamental principle that students and academics should be able to express their beliefs and debate controversial ideas without fear of repercussion. We return to the House to resolve the final element on which we seek agreement: the form that the statutory tort takes in the Bill. The tort is the measure that will allow people to bring civil proceedings where they believe that certain duties in the Bill have been breached to their detriment. Since I last brought the Bill before the House, the other place has accepted the inclusion of the tort in principle. That is a huge step forward and a significant victory for freedom of speech on campus.

In February, this House voted to reinstate the tort in full following its removal in the other place. In March, the other place accepted the need for the tort but sought compromise in the form of amendments identical to those tabled by the Government on Report. That is the wording of the clause that we are now considering.

I want to emphasise that this is a significant shift in the terms of the debate. We are considering no longer whether the right to go to court should be included but what form it takes. However, I recognise that colleagues still have some concerns, and I want to reassure them that the two Government amendments will mean that the tort retains its teeth and offers a concrete means of redress for those whose right to free speech has been unlawfully infringed.

Proposed new subsection (2) will make it clear in the Bill that “loss” is not limited to pecuniary loss. That means that academics will be able to go to court if they have suffered, for example, reputational damage or adverse consequences to the progression of their career. Subsections (3) and (4) mirror amendment 10E from the other place. New subsection (5) will ensure that, in circumstances where speed is essential, a complainant can apply for an injunction where there has been an alleged breach of the free speech duties.

I turn to proposed new subsection (2), which builds on amendments 10B, 10C and 10D as voted for by the other place. On 7 December in the other place, my counterpart Earl Howe stated on Report that loss is

“not limited to pecuniary loss and could include damage to reputation, for example.”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 195.]

Subsection (2) simply makes that clear in the Bill. The amendment therefore reflects the original policy intent. I hope that offers reassurance to the House and that hon. Members will support its inclusion in the Bill.

I turn to proposed new subsection (5), which builds on amendment 10E as voted for by the other place as now included in new subsections (3) and (4). Amendment 10E would require claimants to have exhausted the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education before they can bring legal proceedings. Some hon. Members have expressed concern that that would prevent individuals from seeking an injunction where a breach of specified freedom of speech duties has already taken place and swift redress is sought. I share the view of many colleagues that access to the courts in those circumstances is crucial.

Subsection (5) will mean that a claimant who is applying only for an injunction will no longer have to exhaust the complaints schemes first. Those claimants will therefore have direct access to the courts. It is important to allow for that to avoid delays that may cause further harm to the claimant. If, for example, a student is expelled from their course because of a free-speech issue, it may take a long time to resolve their complaint, and damages would not be sufficient. The student would be seeking re-entry on to that course to continue their studies. In that scenario, subsection (5) will allow the student to seek an injunction from the courts as quickly as possible. I am sure the whole House agrees that that is sensible and justified.

[Sir Julian Lewis (New Forest East) (Con)]

Yes, it is an excellent change. The only question in my mind is why this rather obvious feature was not included at the beginning. Could the Minister look into that and—if not now, on another occasion—throw some light on it? It was an obvious flaw in the Bill.

[Claire Coutinho]

I thank my right hon. Friend. I think the fact that we have now included that in the Bill shows that we have worked with both sides to ensure that the Bill is as strong as possible. We have always had the academics, visiting speakers and students that it seeks to protect at the forefront of our mind.

I should reiterate that the provision concerns injunctions where there has already been a breach of the relevant duties. Where there is an anticipated breach of the duties, a claimant can apply for an injunction to prevent that—that has always been the case, since the requirement to exhaust the complaints scheme only applies in the case of an actual breach. It is important to note that we believe that this exception will apply only in a minority of cases, as most claimants will not seek, or have their case result in, an injunction. Nevertheless, we are sympathetic to complainants who find themselves in the difficult circumstances in which an injunction may be required. Further to this, we expect the OfS will take into account the implications of the amendment when drafting the complaints scheme rules.

I hope that the House will therefore accept amendments 10B, 10C and 10D from the other place, and agree with the Government’s proposed new subsections (2) to (5), which are consequential upon the amendments.

[James Sunderland (Bracknell) (Con)]

In recent weeks, we have seen a rather unedifying situation whereby Members from both sides of the House have been no-platformed by universities across the UK. In addition, Berkshire has several Facebook groups which purport to be in the public interest, but are actually used mainly by Labour activists to attack the Government. Comments made by Conservative councillors or those who disagree with the sites’ administrators are deleted, with some users even banned from the sites.

Cancel culture is odious, and I believe it exists because the Opposition do not want to hear the truth—they cannot face the truth. Will this Bill go any way towards dealing with cancel culture?

[Claire Coutinho]

I thank my hon. Friend, who has had his own experience of that in recent weeks. This Bill will not only strengthen the duty of our universities to ensure that they are protecting freedom of speech on campus, but create a new director of free speech, who will champion the cause, and strengthen the powers of the OfS to deal with those who breach that duty. I believe it will speak to my hon. Friend’s real concerns.

[Matt Western (Warwick and Leamington) (Lab)]

The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.

Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.

--- Later in debate ---

[Miriam Cates]

I admit to having a sense of déjà vu, because I think this is the third time I have made a speech defending the sharp end of the Bill—which is, of course, the provision allowing students, academics and visiting speakers who have had, or are about to have, their freedom of speech curtailed to bring a claim against a university in court. Most cases can, will and should be settled through the Office for Students’ complaints process, but that could take months. There will be circumstances in which quick recourse is needed, for example when a speaker’s event the next day is due to be cancelled.

The Lords have tried to remove the tort. They have tried to water it down with the requirement to exhaust the complaints procedure first. That is why I initially tabled an amendment for consideration today to ensure that students and academics could still apply to a court for injunctive relief if necessary. However, I am very glad that the Government have tabled their own similar amendment; I have withdrawn mine, and will of course be supporting the Government. I thank the Minister for her commitment to the Bill and its original policy aim, and to freedom of speech. It would have been easy for her to capitulate to their lordships on this matter, and it is to her credit that she has not only identified the damage that the Lords amendments would have done to the success of the legislation, but has actively engaged with academics, Back Benchers and ministerial colleagues to ensure that the Government defend their legislation.

Retaining the full use of the tort is vital to the success of the Bill. After all, the Bill’s aim is not to enable people to sue universities—no one wants that to be the mainstream course of action—but to deter universities from reneging on their free speech duties in the first place. Essentially, we want the Bill to have a deterrent effect to help universities to stand up to those who wish to cancel certain viewpoints by providing for clear boundaries and swift consequences if they fail in their duty to free speech. Facing a long Office for Students complaints process is no deterrent against cancelling an event due to take place tomorrow, but the potential for court action is. Creating a liability risk for universities that neglect their free speech duties is the most effective way to ensure that free speech is always factored, substantively, into decision making.

I am not a free speech absolutist, and of course there should be speech that is illegal, such as racist speech and speech inciting violence. Everyone should take responsibility for what they say, and I believe that anonymous speech is a largely detrimental development in today’s culture. However, the freedom to voice opinions and present evidence, however controversial those opinions and that evidence may be, is a foundation of democracy. Authoritarian regimes, not democracies, censor speech, and when mainstream, evidence-based views, such as the belief in the importance of biological sex or the belief that immigration should be limited—for which my hon. Friend the Member for Bracknell (James Sunderland) was cancelled last week—are being shut down in our universities, we have a problem that needs to be addressed. Our brightest future minds, the young people in our universities, deserve to have an education that helps them to become robust, inquisitive, and appropriately sceptical of new ideas. They will become robust only if they have the opportunity to hear a whole spectrum of opinions and ideas and to learn that being offended is not an injury but an opportunity to learn and mature. We do our young people no favours by pretending that they need protecting from ideas and facts.

The shadow Minister, the hon. Member for Warwick and Leamington (Matt Western), spoke about the mental health crisis that some of our students face. I agree that there is a crisis in mental health among our young people, but the American psychologist Jonathan Haidt links that crisis in mental health with cancel culture and the over-protection of children in schools and universities from viewpoints and ideas that might hurt their feelings. His book confirms my belief that being exposed early on to viewpoints that we might disagree with and want to argue against helps us to become robust and makes us less likely to be injured and have hurt feelings when we come across views that are different from our own.

Those are the kinds of people that we want to be the future leaders of society, and the culture that starts in the universities always makes its way into mainstream culture. That is the point of our higher education institutions, so the Government are absolutely right to protect their policy aim of ensuring free speech in universities. That will be to the benefit of everybody in this House across the political divide and of future generations. It does not just protect one particular viewpoint; it protect everybody’s viewpoint.

[Claire Coutinho]

I thank the House for today’s debate, which demonstrates the full benefit of open discussion and free speech. I will touch briefly on some of the points raised. The hon. Member for Warwick and Leamington (Matt Western) said that he thought this was driven by the Common Sense Group’s views, but in fact it has been driven by the conversations we have had with academics who have been targeted for sharing their views on campus. They are the people at the forefront of our mind. In our last debate, I suggested that the hon. Gentleman might like to speak to some of them. I would be delighted to relate my conversations with them, but I think he should speak to them as well.

The hon. Gentleman talked about how we would assess costs, and he is right to say that that is a matter for the courts. That is well established. He also spoke about the cost to universities, but it is very simple: if universities would like not to have to spend money on redress, they should simply uphold freedom of speech. He mentioned Lord Willetts, and like everyone whom the Bill concerns, we have been talking to people right across the spectrum as we have moved through this process, and I am confident that people will see that we have come to a good place in our amendments. He also asked whether the money would be better spent on the staff and student experience, but I ask again: should not the staff and student experience of university be one in which they are exposed to different views and can speak freely and debate controversial ideas? Is that not fundamental? That is exactly what the Bill is trying to uphold.

The hon. Gentleman asked about examples of where we might want to use an injunction. An example of where we might want to see swift redress is if a student has been kicked off their course and they feel that their freedom of speech rights have been impinged on. We would want to deal with that quickly so that they can get back on their course and resume their learning swiftly. That been widely agreed on in our conversations as a reasonable example.

I thank my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates). She is absolutely right about building young people’s resilience. Exposing them to different views is a key part of growing up, and it is something that we all use as we go into adult life.

We remain convinced that the right to go to court is crucial as a way of enforcing the new duties in the Bill and providing redress for those who have had their rights unlawfully restricted. I am thrilled that both Houses now accept that the tort should be part of the Bill. I believe that in accepting amendments 10B to 10D as agreed by the other place, together with the inclusion of the Government amendment we have discussed today, we will have reached the right position to ensure that freedom of speech and open debate remain central to university experience.

Question put and agreed to.