Higher Education (Freedom of Speech) Bill (Tenth sitting)

Emma Hardy Excerpts

Monday 20th September 2021 Public Bill Committees

[Michelle Donelan]

The hon. Gentleman makes a point about the previous activities of the OfS, whereas today we are focusing in this Bill on freedom of speech. This is a new set of requirements, with a new director, that will be coming into force, and they will be doing an annual report, as we have already discussed.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

rose—

[Matt Western]

rose—

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[Michelle Donelan]

I completely agree with my hon. Friend. That point was laboured by many of the witnesses we saw in evidence. As I said to the hon. Member for Warwick and Leamington a moment ago, this is much more than an issue of dealing with no-platforming; we are trying to address the chilling effect.

[Emma Hardy]

I am slightly confused. The Minister is saying that the OfS has been collecting the data, but why has it not been reporting on it? The difficulty with the chilling effect is how quantifiable it is. This is about hard data and events that have been cancelled or no-platformed. The amendment would provide hard data, rather than reliance on some mystical ability to mind-read or judge how chilled someone feels in a particular environment.

[Michelle Donelan]

I heard the hon. Lady, but yet again the Opposition are failing to grasp the severity of the problem we are trying to deal with, and so honour our manifesto commitment to squash the issues with free speech on our campuses. Those issues are much more entrenched than simply no-platforming. We have heard that from various sources, academics and students alike, who have told us that they have felt curtailed in their ability to speak out on certain issues, to teach certain topics, and so on.

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[Matt Western]

I beg to move amendment 77, in clause 6, page 7, line 10, at end insert—

“(3A) Any monetary penalty will be limited to a maximum amount set out by the Office for Students decided in consultation with representative bodies of universities and of students’ unions.”

This amendment would ensure that there is a limit on the penalty to be paid by an individual or institution as a result of this legislation.

With the amendment, of course, we have clause 6. The concern that we have throughout the Bill is the additional burden that it will place, as we have said so many times, on the universities, colleges and others that will be covered by it, as well as the student unions. We have to put this in the context, which I have cited before, of what is going on and what the Government seem to be doing, which is centralising powers in bodies that are not necessarily independent in the way that they are suggested to be. I really am very worried, like my right hon. Friend the Member for North Durham, about how this really centralising and very authoritarian Government are introducing red tape and placing more burden and more cost on institutions and student unions. We see this in other fields as well.

What is clear from this legislation and what we have heard in evidence is just how much responsibility will fall to student unions. The regulatory burden that they will face is really disproportionate. They are already subject to the regulation in this area by the Charity Commission. However, in the Bill, there is no mention of it, even in the schedule, as far as I can see; perhaps the Minister can point it out to me in due course. I cannot see anything about the Charity Commission, which is the regulator of student unions. Looking at the Bill, we would not even know that the Charity Commission existed or had any remit over student unions. It is not in the body of the Bill; it is not even in the schedule—it is nowhere. Perhaps it is the case that the Government want to leverage out the Charity Commission from any say in what goes on in our universities. Perhaps the Minister could address that point specifically. As has been said before, how will the Office for Students and the Charity Commission engage? Student unions are unincorporated associations, so it is not clear how these penalties will apply in practice. Also, the proposals covered in the Bill do not recognise the devolved nature of student unions’ governance, as we have said before. For example, a chair of a society may not follow an agreed procedure, which could result in an invited speaker needing to be disinvited once due process was followed.

[Emma Hardy]

I will continue to make this point, because it is an important one that needs to be made: not all student unions are wealthy institutions. As I have already mentioned, the Bill includes higher education organisations and further education colleges that might not even have any full-time officials working for their student union, but will have to comply with this heavy piece of legislation.

The problem with the Bill is that it has been written in the belief that every university is like the Russell Group universities, forgetting the many York St Johns and Liverpool Hopes out there, which are much smaller institutions but still part of the higher education landscape. How on earth would some of those student unions be able to afford to comply with the legislation, as the Minister is asking them to?

[Matt Western]

My hon. Friend is right, and that is a point I was going to come on to. I was just looking through my notes about the Office of the Independent Adjudicator and I saw that it said its membership has increased from 150 providers in 2014 to almost 800 providers in 2021, and that is an absolute plethora of universities, colleges, and so on. They are all of different sizes. An agricultural college might have a couple of hundred students, or as could a specialist performing arts college, a music college or drama college. What on earth will this measure do to such institutions, in terms of their liability and responsibility? They will certainly not be able to afford and sustain societies in their student unions.

It is incredibly concerning and there is almost a failure in the Bill to accept the burden that will head the way of these colleges from Government. I think we heard that really clearly from Hillary Gyebi-Ababi, the vice president of the National Union Students. She talked about the huge financial impact on the sector, saying:

“If I am being completely honest, a lot of stuff in the Bill is really, really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128.]

In another evidence session, my right hon. Friend the Member for Hayes and Harlington made the point to Professor Kathleen Stock that

“The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are”.

Professor Stock replied:

“I can see that it is a risk.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 14.]

Professor Layzell of Universities UK also gave evidence, saying:

“Again, we would want the sanctions to be proportionate. I think I would look at it in the context of us all wanting to do better in this space.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126.]

On Second Reading, a point was made by my hon. Friend the Member for City of Durham (Mary Kelly Foy):

“In fact, Durham University has informed me that, far from encouraging a wider range of views, the threat of sanction could actually result in a more risk-averse speaker programme.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]

A great many more people from across the sector, including from student union bodies, have registered that concern about how they see the Bill having the reverse impact to the one intended, and having a chilling effect of reducing free speech and debate on our campuses, irrespective of their size.

Since becoming shadow Minister, I have met the National Union of Students several times—remotely, of course—and I am pleased to support amendment 77, which it helped to construct and which would introduce an upper limit on the fines. It is vital to have visibility of what sanction or cost there will be. There needs to be a schedule of the maximum penalty an institution could face. How will it be proportionate? Will it depend on the number of students at a college, or will it depend on the nature of the transgression? How on earth will it work?

[Emma Hardy]

I am in complete agreement with my hon. Friend. Going back to the point regarding student unions, a one-size-fits-all fining system could find that for a student union with a much lower income and smaller resources, the proportion as a percentage would be much higher, which is why, as my hon. Friends propose, we need consultation with representative bodies of universities and student unions. If we want to impose the same punishment in relative terms, that could then be done accurately.

[Matt Western]

The frustration from right across the sector is that there has not been more consultation, discussion and engagement about the issue and how to address it, and how to deliver legislation that might be workable across the sector with the representative bodies, the Government and so on.

My concern is that this measure is another example of how the matter has been left wide open, and that is problematic for the bodies—in this case, the National Union of Students and the various student unions. In the short time that I have had in terms of exposure to the sector, I say to the Minister that it has a profound and growing distrust of the Government because of this legislation. It feels as though the sanctions have been designed to damage or nullify student unions. On that note, I will sit down.

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[John McDonnell]

There is the process of the tort, the process of the civil actions that will take place and the process of the monetary penalties imposed by the OfS. The courts eventually, after precedents have been set, will arrive at some level of compensation. Unless we can set out a legal tariff early on, it will be up to the courts and anything could happen.

[Emma Hardy]

Maybe I am unfairly anticipating what the Minister will say, but I assume it will involve the words “guidance”, “waiting” and “after the Bill”—perhaps not in that order. Therefore, if this will be looked at in guidance after the Bill in consultation, does my right hon. Friend agree that it should be put in the Bill right now?

[John McDonnell]

Confidence in legislation is secured through engagement, consultation and, where there is disagreement, an understanding to disagree. Then when the Bill is taken to the Floor of the Commons, the confidence of Members has been gained because there has been that thorough consultation. Unless that is done, Members are voting for a pig in a poke. Unless the detail of the regime is set out—in particular, the tariffs and what the maximum will be—how can people vote for this legislation, knowing what its implications are?

To go back to the point that my hon. Friend the Member for Brighton, Kemptown made, let us distinguish between what the courts will do—they will set the level in due course through precedent and so on—and the scheme. The sanctions, the tariffs and the maximum monetary penalties are to be set by the Government. I therefore make the very simple point that when Governments set tariffs in this way, to gain the confidence of the House it is usually best to explain what the tariffs will be.

[Emma Hardy]

Again, to stress the point about consultation, as I was trying to explain previously, if this is not done in consultation with student unions, especially small student unions at smaller higher education institutions, this will bankrupt them. I am sure the Minister does not wish to be the person responsible for the bankruptcy of a number of student unions up and down the country. I therefore advise that the consultation and guidance be done before Members of Parliament get to vote on the final Bill.

[John McDonnell]

It is just the simple approach of talking to student unions and saying, “What effect would this tariff have on you? Would it push you over the edge? Would it bankrupt you? Is this an appropriate sanction? Would it act as a deterrent? Would people appreciate the risk that they are undertaking by non-compliance with the OfS’s requirements on these individual bodies?” Universities and student unions will almost certainly be consulting their insurance providers about the potential risk and the level by which they have to insure themselves to ensure that they, quite properly, exercise their fiduciary duty of protecting their organisation in the light of that risk. How can they do that if they do not know what is coming at them down that tunnel? The light that is coming at them could be a huge train hitting them with a huge fine.

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[Michelle Donelan]

I am not going to set out a detailed timetable, but I assure the hon. Member that there will be sufficient consultation with both the sector and student unions.

[Emma Hardy]

Further to the point raised by my hon. Friend the Member for Warwick and Leamington, the Minister mentioned parliamentary scrutiny, and I want to press her on this issue. She should be able to give us at least an outline of whether we will know about this before Report, before Third Reading and before it goes to the Lords. When will parliamentary scrutiny happen? On something as important as this, surely we should have some indication from the Government.

[Michelle Donelan]

This is in line with how we have done legislation before, and to have in the Bill the details of the exact things that the hon. Member is asking for would not be appropriate.

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[Michelle Donelan]

I think what is actually important is to have sufficient time for engagement and consultation with the sector and student unions, for the very reasons given about their varying size, financial assets and so on. Rushing the regulations would have an effect contrary to what Opposition Members are arguing for.

It is important to note that the power of the OfS to impose a penalty will be subject to the safeguards set out in schedule 3 of the 2017 Act. That reflects the approach taken to the monetary penalty under section 15 of that Act. We see no reason to deviate from that tried and tested approach.

[Emma Hardy]

I thank the Minister for giving way again—she is being generous. To make it as simple as possible, we would like to know when we will find out what the maximum penalty will be. She talks about parliamentary scrutiny and the need for consultation. To be as clear as possible, will we know before the final vote on Third Reading?

[Michelle Donelan]

I think that I have been quite clear, but I shall be even clearer: the regulations will be passed via secondary legislation, when there will be an opportunity for hon. Members to scrutinise those decisions. We want to ensure adequate time for consultation with the sector and with students unions to get that right.

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[Matt Western]

It was not just our amendment 77. The nub of the problem is how student unions are being muscled by the Government to do certain work for them. I cannot help but use the word “authoritarian” throughout, but this heavy jack-boot seems to be stamping down on student unions across the country, particularly the smaller ones, which will not have the scale, finances or resource to sustain the obligations that the Government are putting on them—particularly if that is the Government’s aim. Maybe their intention throughout all this is to see the demise of student unions and maybe some alternative structure to replace them.

[Emma Hardy]

I found this the most disappointing part so far because we are talking about issues of equality. The Minister said she had the higher education and further education brief because they wanted to bring more equity into those areas. We know what will happen under the Bill: the student unions with money and resources will be able to comply and continue, and the student unions without them will not; they will not be able to offer what they have been able to offer so far. It is incredibly disappointing for the Minister to say that secondary legislation will be where the consultation happens. That is an incredibly disappointing response from the Minister. I hope she will recognise that what the Bill actually does is create a system where only the elite universities have functioning student unions and the rest of the students can do without.

[Matt Western]

Labour cannot support this clause in its entirety. There are many points that could be highlighted. New section 69B(9) states::

“If a students’ union fails to comply with a requirement under subsection (8) and does not satisfy the OfS that it is unable to provide the information, the OfS may enforce the duty to comply with the requirement in civil proceedings for an injunction.”

God, the heavy hand of Government! It is like the opening credits of Monty Python with that hand coming down from the clouds and stamping on the little person, and that is the case for student unions across the country.

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[Emma Hardy]

I want to give a tangible example, just in case the Minister has missed this. This regulation, as written here, will apply to Basingstoke College of Technology’s student union. By dint of the college being OfS-registered, because of its HE provision, its student union, which is currently governed by some 17-year-olds keen on running Rag Week, will have to comply with the regulations written here and, as we have heard from the Minister, there will be a fine of an undisclosed amount if they do not, yet still JCRs will not have to comply. Does the Minister not accept that applying this to every single student union, regardless of whether it forms part of an FE college or an HE college, is a little over-bureaucratic?

[Lloyd Russell-Moyle]

My understanding is that this relates not just to the student union’s activities be in the HE sector, but to the whole of the student union’s activities, even in the FE part of the institution, so student unions in that sector may face more administrative and regulatory burdens than their parent institutions. It is a bizarre situation. That is why this whole provision must be withdrawn, or voted against, or at least rephrased. The Minister must make sure that this is restricted to only that part of the activity that is HE, and that the regulation is light-touch, and she must make reference to how this relates to Charity Commission regulation. That does not apply for higher education institutions, because they are not regulated by the Charity Commission; they are exempted charities. Since 2010, student unions have not been exempted, so they have to register. They are regulated charities, and this measure is totally contradictory to the current regulation.

[Lloyd Russell-Moyle]

Of course I understand that, but a complaint is not simple and will not be simple. For example, a charity that is seen to prejudice one part of speech, particularly political speech, would be in breach of charity regulations already, because we cannot privilege one part of speech or one part of activities as a charity because it is political speech. That is quite right, excepting the ruling of Baldry v. Feintuck, which says that political party associations of students can be supported within the student union if it is self-organised, because it is not the political activity it is supporting but the educational activity of students mocking up being in a political party, so they can hold mock elections and so on.

There is detailed case law and detailed legislation. The danger is that this Bill runs roughshod over that. People would have two places where they could complain. The complainant can go to the Charity Commission, where there is a basis of case law that is already very nuanced, and they can go to the OfS, where there is no case law and no such basis. Because we know the OfS will not necessarily be built with lawyers or making its decisions based on case law, the danger is that we will end up getting semi-contradictory decisions.

Baldry v. Feintuck says that student unions are free to support a Conservative club, for example, and to give money to that student Conservative club for its operations, as long as it offers the same amount of resources to the Labour club, the Lib Dem club or whatever different clubs might come along. There is a danger, however, that free speech regulation will say, “Actually, the regulations need to be different and will require the clubs to accept a broad range of views.” That is different from the basis on which those clubs have been set up.

I ask the Minister to reconsider ensuring that there is a direct reference to the Charity Commission and to the order of priorities in which someone would make a complaint to a student union. Currently, they could make a complaint to the institution, to the Charity Commission and the OfS.

[Emma Hardy]

And the OIA.

[Lloyd Russell-Moyle]

And the OIA. I would appreciate the Minister doing that, because it is a minefield. We heard as much from the representative of Universities UK, who said that they were deeply worried that this would confuse the matter and make things more difficult in terms of regulation.

Before I finish, I will touch on the finances. Universities effectively have the powers to raise finances through their recruitment of students and the research grants they get. Universities live and die, in that sense, in their corporate actions. Student unions, for the most part, raise no money themselves. Gone are the days of the student bar and the student club. If Conservative hon. Members think that student unions get money from those, I am afraid they are misguided. The vast majority of student unions rely solely on a grant from the university. They are solely dependent on the university, higher education institution or further education institution.

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[Lloyd Russell-Moyle]

Either they will get indemnity insurance, or they will find a way to be covered by the institution’s indemnity insurance, which, again, defeats the whole point that student unions are regulated directly. We might as well regulate the institution, which would then have a duty—as they already do—to ensure that the student union is following the rules.

[Emma Hardy]

Another alternative is, of course, based on examples like the one I gave of Basingstoke College of Technology’s student union, and the other smaller student unions that exist out there. They simply stop having a student union and stop engagement, because some of these smaller colleges and institutions, which I have drawn attention to several times, could not afford the insurance. Those unions do not get much money from their colleges, which are their main providers, and therefore might not exist in the future. It would be a devastating impact of this Bill if we ended up with fewer student unions around the country.

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[Michelle Donelan]

The time limit refers to amendments 36 and 37, which I will proceed to, but indeed we are not setting a time limit. It would depend on what had happened and the facts that were available. It would be investigated. I am not convinced that getting into a speculative hypothetical will help today’s discussion.

Amendments 36 and 37 seek to impose on the face of the Bill a time limit of five years as to who may bring a complaint to the OfS complaints scheme. As drafted, proposed paragraph 5(2)(a) of new schedule 6A in clause 7 sets out that the complaints scheme

“may include provision that…complaints…must be referred under the scheme within”

a specific time frame. That reflects similar provisions in the Higher Education Act 2004, enabling the Office for the Independent Adjudicator for Higher Education to set a time limit for its scheme. The OIA only considers complaints made within 12 months of the date that a higher education provider told the students of its final decision. That is considerably shorter than the five years in the suggested amendments. To refer back to the point made by the hon. Member for Warwick and Leamington, that needs to be decided by the director and in the guidance and regulations. We are not setting out a timeframe in the Bill. That would come in the detail.

[Emma Hardy]

May I clarify whether a time limit will be set out, if not in the Bill, in the guidance produced later?

[Michelle Donelan]

To clarify, in the Bill there is no time limit, but our full expectation is that there will be one in accordance with precedent, such as that of the OIA. There will be a reasonable time limit, set in conjunction with the voices that have been heard, of the sector and of the hon. Member for Warwick and Leamington, who made his suggestion today. Accordingly, when the OfS sets out the details of the complaints scheme, it will be able to set an appropriate time limit. It is not necessary to set that out on the face of the Bill, as I have stated.