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

Emma Hardy Excerpts

Monday 20th September 2021 Public Bill Committees

[John McDonnell (Hayes and Harlington) (Lab)]

The same.

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

My partner works at the University of Hull on the degree apprenticeship programme.

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

I am a trustee at the University of Bradford union. I have received payment from the University of Sussex to provide educational opportunities, and I have received money from the University and College Union.

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[Michelle Donelan]

I will make some progress and then give way.

As individuals will be able to seek redress for free via the OfS or the Office of the Independent Adjudicator, we expect individuals to make a complaint to the OfS or the OIA before relying on the tort.

[Emma Hardy]

I thank the right hon. Lady for giving way.

I refer the Minister to the Office for the Independent Adjudicator’s written evidence, where it said:

“It is generally accepted that it is not good practice to have multiple routes of ADR redress for the resolution of a complaint because it can make the landscape difficult to navigate and make it harder for individuals to make the right choice for them—particularly if they are vulnerable.”

I wonder how the OIA’s concerns can be satisfied by the clause the Minister is moving?

[Michelle Donelan]

I thank the hon. Member for their comments. It is a good point that students, academics and visiting speakers all need to know the routes available to them. That will be a fundamental part of the new director’s job; I fully anticipate that they will not only set out comprehensive guidance, but communicate with all the different individuals so that they know the options available.

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[Emma Hardy]

Going back to the evidence, one of the points made by the OIA is that

“if a student isn’t fully informed or does not understand”—

bearing in mind its previous point about vulnerable students—

“all the consequences of their choice, the decision they make may not be the most beneficial for their particular circumstances.”

The evidence points out that people rarely make a complaint relating just to freedom of speech; rather, it often involves many other different aspects, which the director of freedom of speech would not be able to address. This is a highly complex and difficult procedure for an individual student to be able to understand and navigate, and I am not sure that written guidance from the Office for Students would fully address that.

[Michelle Donelan]

One thing we must be clear on is that the current system is not working. It is failing individuals who are having their freedom of speech breached, as we also heard from multiple sources in the evidence. At the heart of this Bill is unlocking a greater choice for individuals, whether that is going down the OIA route or the one-stop shop of the director who will be responsible for free speech and academic freedom. While it is true that at the moment not many cases that are brought forward are purely to do with freedom of speech, I argue that that is because we need this Bill in place and the new director in their position.

Given that individuals may not want to incur the legal costs and risks associated with bringing a claim before the courts, we do not expect this provision to give rise to many claims. It will operate more as a backstop for complainants, to cover claims by individuals who may feel they have no other recourse.

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[Matt Western]

I am sure the Minister has heard my right hon. Friend’s question. It is certainly not clear to me who has standing, and I hope she will come to that. It is quite clear from the questions that have been posed by my colleagues that there is so little clarity about how this is going to work. I have not seen any reference to the Charity Commission, for example. Where does the Charity Commission fit into this? Surely it is part of the process for students to refer a complaint to that organisation, but there has been nothing about it in any of the papers from the Government that I have seen, nothing in debate, and nothing, so far, during two days of debate in this Committee.

[Emma Hardy]

It is worth pointing out that what is proposed in the Bill does not come cost-free. The impact assessment estimated that the cost of compliance with the Bill would be around £48.1 million. Bearing in mind the points I have made previously about the overlap with the Office of the Independent Adjudicator for Higher Education and the confusion that some students will have, it seems fairly ludicrous that the Government wish to spend £48.1 million replicating something that already exists in another form.

[Matt Western]

I thank my hon. Friend for her intervention, and she is absolutely right: this is not just something that already exists, but something that exists relatively cost-free. The cost of £48.1 million that she has mentioned—which is the Department’s estimate of what the Bill will cost student unions and universities across the country—should not be ignored.

We sought to remove the whole of this clause through amendment 30. We are of course disappointed that it was not accepted—although I sort of understand why that was the case—but I am sure that the House of Lords will be extremely interested in the clause. While we do not believe this Bill is necessary, we have been doing our very best throughout this process—as my right hon. Friend the Member for Hayes and Harlington said last week—to be constructive about mitigating the problems and costs of what we think will be a disastrous piece of legislation, in terms of its impact on our students, student unions and universities. However, we feel that this clause is a huge mistake, because as we have heard, it enables individuals to seek compensation through the courts if they suffer loss as a result of a breach of the freedom of speech duties.

In its submission, the Russell Group—as so many have said—puts it like this:

“The lack of clarity over how a new statutory tort offering a route to civil legal claims around free speech will interact with existing internal and external complaints procedures”

is absolutely—well, it did not say “shocking”, but I think the Russell Group is very frustrated and concerned about it. It also said:

“At present, internal grievance and complaints processes offer staff and students significant opportunities to seek redress when they feel their right to free speech has been infringed. These include comprehensive rights to appeal. In the event internal processes do not conclude in a way that satisfies an individual, then students can take their grievance to the Office of the Independent Adjudicator (OIA)”—

a point made by my hon. Friend the Member for Kingston upon Hull West and Hessle. The Russell Group also said:

“Where free speech concerns interact with employment decisions, university staff have recourse through employment law and tribunals.”

It is pretty clear that the system was working. Perhaps it could have been tightened up—maybe there could have been better practice across different institutions—but I see that as a failure by the Government to engage with the sector and the OIA, and to work with the Charity Commission and all the other representative bodies to bring about a better or a tighter system, rather than resorting to this clunky Bill, which is so onerous, burdensome and potentially hugely costly to the sector.

We are against this clause for three reasons. First, as I have said, we believe it is unnecessary. Secondly, we believe it could create a culture of lawfare, as it is described in legal circles, that will take vital money away from students and researchers. Thirdly, we believe that it will ultimately restrict free speech, rather than the opposite: it will be the inverse, an unintended consequence, as we have talked about on so many occasions.

Let me start with the point that this clause is unnecessary. The creation of the tort, as has been said in the opening interventions, duplicates other avenues for complaints. Students and staff have already raised complaints with their institution, which will be dealt with via an internal complaints process. Students can then complain to the Office of the Independent Adjudicator. So far, so good.

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“An amendment to the Bill that make clear the new tort is intended to act as a backstop to the existing grievance processes in place would help ensure its introduction genuinely adds an additional layer of protection for individuals with free speech concerns who have suffered loss. This would reduce the risk of the tort creating extra bureaucracy, causing confusion for claimants faced with multiple complaints processes, or undermining existing disciplinary procedures.”

[Emma Hardy]

It is worth pointing out what the remedies are when somebody brings a complaint forward. If the OIA upholds a complaint, it has a variety of remedies at its disposal—academic appeal, or disciplinary or fitness to practice procedure. Under the Bill, if the complaint related to freedom of speech, the OfS can offer a remedy to the student only for the freedom of speech concerned, as opposed to the OIA, which can offer a remedy for any aspect of the complaint that is upheld. Basically, the OfS is offering a narrower source of remedies than is currently available under the OIA. If anyone is confused listening to me, then, my goodness, just imagine how an 18-year-old undergraduate would feel trying to grapple with what the best route forward is for them.

[Matt Western]

Exactly. Where is the flow chart to help someone navigate through this? It is certainly not clear to any of the representative bodies—the student unions and so on—and it is going to be impossibly difficult for the average 18-year-old or 19-year-old to comprehend.

[Emma Hardy]

In its evidence, the OIA gave an example where a group of students may have the same complaint regarding freedom of speech, but go down different routes: one down the OfS route, one down the OIA route, and one down the court route—maybe because they have enough finances behind them. Each of them ends up with a slightly different solution to exactly the same problem. That is the reality of the Bill. I fail to see how enough guidance could provide clarity for each individual student. We could have a very varied system, where individual students do not know where to go and complaints are not upheld properly. Alternatively, in the case of the OfS, students make a number of complaints and only the freedom of speech issue is dealt with, not the other, resulting issues that could be to do with the way that the course is being taught. It is as confusing as anything.

[Matt Western]

I will address those points in due course. It is the possibility of students going through different bodies that is quite alarming and that will cause even more complication and complexity.

To go back to the point I was making about the processes, the then Secretary of State for Education himself said during the Second Reading debate that although

“this legal route is an important backstop, we do not want all cases going to court where they could otherwise be resolved by other means.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]

I think that is what we all want, but it is certainly not clear to any of us how that is going to work in practice, particularly given the several bodies that can advise and take cases from students. The Bill as it stands does not ensure that the legal route is a backstop. During the evidence sessions, we heard from Smita Jamdar of Shakespeare Martineau—the only lawyer—who was called on by the Opposition. She gave striking and clear evidence and advice. She said:

“Built into certain types of court proceedings—judicial review, for example—is the expectation that you will first exhaust all alternative remedies, and that would include any internal remedies available under the complaints process. However, that is not the case in statutory torts; you could bring a claim outside the processes”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 50, Q93.]

That must be a real concern: the simple fact that you can bypass all the processes and go straight to court. The clause should therefore be removed or at least amended to reflect the Government’s own views on how they wish the tort to operate.

My second point is on facing the prospect of “lawfare”. We have wider concerns that the Bill will create a culture of lawfare against universities. Clause 3 does not restrict the tort to those who personally feel that their speech has been restricted or those who have been directly affected. It therefore risks opening up vexatious claims against universities from those who seek to do them harm. As Dr David Renton and Professor Alison Scott-Baumann said in their written evidence, the Bill means that,

“any lecture, seminar or guest speech could lead to a lawsuit.”

They pointed out that the statutory tort element of the Bill will open the floodgates to civil litigation and forms of lawfare, most likely from well-funded American groups on the hard right, or perhaps groups such as the Chinese state Communist party.

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[Matt Western]

I thank the right hon. Gentleman for his intervention. I will come on to a few examples of how that might play out, because I have given a lot of consideration to the extent of this issue. Given the evidence of certain witnesses in the evidence sessions, there are concerns out there—certain concerns are greatly exaggerated, but there are concerns. We have to take those on board, which is why we are approaching this in a constructive way.

As my right hon. Friend the Member for Hayes and Harlington said, the real concern, which I would like to believe that the right hon. Gentleman would accept, is that we will see ambulance chasers, for want of a better term. There will be people putting their cards around student campuses who are looking for opportunities to be mischievous and to make money out of situations that can be manufactured on our campuses.

[Emma Hardy]

Further to my hon. Friend’s point about the “no win, no fee”, “where there’s blame, there’s a claim” culture we have in other areas of law, there is no limit on how long ago a perceived breach of freedom of speech took place. The clause refers to a “person”. There is no definition of who that person is. Does it relate to academic staff or students? How long along were they at the university? Are they someone in the vicinity who happens to feel infringed by something that has happened on the campus? It is such a broad definition. There is no limit on how long ago something could have happened and who could bring these claims forward.

[Matt Western]

I will come on to that. We have an amendment to that effect, which would ensure that this is not some kind of free-for-all and that we do not open the floodgates, as described by Dr Renton and Professor Scott-Baumann.

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“The danger with the government’s statutory tort is that it will have a chilling effect—students’ unions or their student groups weighing up inviting an external speaker may well conclude that the risks are outside of their control yet too great. The government should work with us to broaden and deepen engagement with controversial views—not cause students to risk-assess the life out of campus.”

[Emma Hardy]

I did not have time to table an amendment, but I hope that the Minister and other Government Members will look at whether we should include in the Bill FE student unions as well, bearing in mind the resources of FE college student unions. I refer the Committee to the evidence given by the Association of School and College Leaders. I hope this is something that the Minister will take away to look through, because if the legislation is too complicated for junior common rooms, surely it is too complicated for a small FE college.

[Matt Western]

Costly and burdensome, is what we were told on Thursday.

Institutions and student unions would therefore become risk averse and avoid inviting speakers, for fear of financial repercussions if they are subsequently cancelled. As a result, there would be fewer speakers, fewer debates and, we believe—not just us, but the whole sector believes—an overall reduction in free speech.

Let me give some examples and come back to the point put to me by the right hon. Member for South Holland and The Deepings about what that might mean. I was reading about the former Home Secretary, the former right hon. Member for Hastings and Rye—I never had the opportunity to speak to her in the Chamber, although I spoke to her outside it, and I had time for her. She was due to speak at the UN Women Oxford UK society in March 2020, and I remember her response when she was barred from speaking, following a vote in the UN Women Oxford UK committee on her role in the Windrush scandal. The invitation was withdrawn an hour before she was due to speak. Those sorts of things have happened through the decades on campuses and across our universities. It was the society’s decision. Would I have done it? I would not have done that; I would have seen it through. I would much prefer to hear from someone and to put the point to them face to face. Sadly, that was the society’s decision.

What would happen with the tort in the Bill? What would Ms Rudd, the former right hon. Member, do? Would she take the society through some legal process, or threaten to do so, or would she just walk away? Rather than getting involved in some sort of complex legal process, which might have damaged her reputationally and made everyone look stupid, I imagine she would have walked away. Certainly, that is what I would have done. What happened, however, which I think is telling, is that the University of Oxford deregistered UN Women Oxford UK from its affiliated societies and asked it to apologise to Amber Rudd. The university concluded:

“We have determined that the cancellation of this event was not carried out in accordance with university procedures, codes of practice and policies, in particular that of the freedom of speech.”

I believe that was handled very well by the university and perhaps not so well by the society itself.

What damage was caused to Ms Rudd, other than in terms of her time and her train fare or whatever it was? Was her reputation damaged? I do not think that it was. In fact, even her daughter tweeted:

“Can not believe mum was ‘no-platformed’ at my old Uni yesterday. Mum doesn’t need the platform and travelled to talk for FREE”—

good for Ms Rudd, travelling to talk for free. It is a shame that the society did not allow her to speak on campus—though of course that was their prerogative.

Let me speak next to the case of the academic Selena Todd, who was dropped from the Oxford International Women’s Festival hosted by Exeter College for her views on transgender rights issues. That decision prompted the OfS to warn that there is a legal requirement on universities to take steps that are reasonably practicable. Again, I think it was a shame that she was dropped—these sorts of debates should be had—but it was the organisers’ decision. I believe, as I think do most of us, that there is good practice out there; we keep citing it. We heard about the work of Professor Jonathan Grant of King’s College London, who has created a collaborative, co-operative process between the students’ union and the university to ensure that all the steps are gone through before the invitation goes out, so that there is no subsequent problem and the person can be heard.

The third example that I want to raise—

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[Matt Western]

My hon. Friend is absolutely right. The examples that are being cited by lobbyists—perhaps more on the Government side—of where there is perhaps an issue are centred around those bodies. Currently, as we debated on Thursday, they are not included in the Bill.

We believe the tort should be scrapped. We believe it is unnecessary, encourages lawfare against universities and will ultimately end up restricting discussion and debate on our campuses. At the very least, we believe it should be amended with maximum fines. A threshold of harm should be introduced, and it should be restricted to those who are directly affected.

[Emma Hardy]

FE colleges would love the luxury of having a high-profile, well-known speaker come to visit them; that would be a wonderful problem for them to have. As I am sure the Minister is aware now that she has both briefs in her grasp, however, that is often hugely difficult for them. To exempt JCRs and not FE colleges—I am not aware of a single incident involving free speech ever having been raised at an FE college—seems slightly absurd.

[Matt Western]

Indeed. It is important to repeat just how burdensome the measure will be for colleges. For decades, they have rarely had issues, but the burden is now being placed at their door.

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[Sir John Hayes]

I beg to move amendment 73, in clause 4, page 6, line 8, at end insert—

‘(2A) The OfS will compile an annual review of registered higher education providers, ranking their compliance with their duties under sections A1 to A3; to be made publicly available by such means as the OfS considers appropriate.”

In moving the amendment, I draw attention to my entry in the Register of Members’ Financial Interests, which details my role as an academic at Bolton University.

I was speaking at the weekend at a dinner with a group of friends who are academics. We addressed in conversation how we could ensure that universities will comply with the terms of the Bill, should it become an Act, as I expect it to do. I talked about the amendment we debated earlier––I will not seek to do so again, Mrs Cummins, because you would not let me––in which I recommended a periodical report. I suggested quarterly, but I am open-minded about what that period might be and its precise terms.

There is an alternative that I now suggest in the form of an amendment to this clause, which is for the OfS and, in particular, the new director, to provide information annually about compliance with the duties in new sections A1 to A3 and to make that publicly available. It would be less onerous, so it would pass the test that the Minister set of not being excessively bureaucratic, which was the argument that she used—in my view rather surprisingly—in resisting my first amendment, although she said that she would give it further consideration, for which I am grateful. It would certainly pass that test, but also give reassurance that universities will be expected to respond, and respond consistently.

My doubt about the legislation is not about its principles––I agree with them entirely. It is not about the practice, which I expect to be effective. It is more about the universities and how they respond. I suspect that, if we are not careful, it will be a variable response. Some will feel that they can comply with these duties more straightforwardly than others and some may even be reticent to do so. I am very keen to avoid creating what might be described as a littered landscape of all kinds of universities acting in all kinds of different ways.

[Emma Hardy]

I recognise the point that the right hon. Gentleman is making about how when a list is compiled, it can be influential on students choosing a university. They often look at rankings. My concern about the amendment is with the resource implication. I have mentioned before about higher education provided by FE. How much resource would student unions have to comply with this duty by putting on these kinds of events? Could smaller universities or colleges be downgraded in the ranking he referred to because they do not have the resources to offer the greater breadth that, for example, Oxford or Cambridge would be able to offer?

[Sir John Hayes]

It was at Cambridge that I had the discussion with the academics that I mentioned, by the way. I am involved with some postgraduate work there, which is not registered in the Register of Members’ Financial Interests because it provides no financial reward, so it is not a pecuniary interest, but I mention it in passing for the benefit of the Committee and others.

The hon. Lady is right that there is a challenge in respect of smaller providers, and I accept that. A good point was made in the earlier part of our consideration about FE colleges and about thresholds. There does seem to me to be an argument around thresholds. I would hope that that would become clear in the guidance. The hon. Member for Warwick and Leamington made a good point about that. Good practice will necessitate the new director establishing some protocols that do not allow the free for all that he suggested might be the consequence of not being clear about the sort of things that would stimulate his interest and lead to further steps. To be honest, I think that the good practice detailed in the Bill would include the director making clear his expectations of universities. The Minister will no doubt confirm this when she speaks, but I find it inconceivable that the director will not set those expectations out in guidance. He is missioned, after all, to provide advice, and it is inconceivable that that advice will not include some mention of the kind of circumstances in which universities might want to draw matters to his attention.

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[Matt Western]

I wish to grab the amendment with some enthusiasm, but maybe in the wrong direction from what the right hon. Gentleman is hoping for. I do worry about bureaucracy, particularly among smaller institutions, and the general cost and responsibility and burden that falls with it. As I said the other day, I believe that the demands that the Government are looking to place on institutions through this legislation is just another example of the head office wanting yet more reports from various institutions. It will be another form to fill in, and the Government will do what they want with it—maybe just sit on it, like so many reports.

I struggle with the amendment, because I think it misjudges the benefit of bureaucracy. As the right hon. Gentleman knows, we have tabled amendments on looking for best practice. We want to understand what is good out there, as well as examples of events being cancelled unduly. That is of interest to all across the sector, it is right and it is proportionate, but ranking universities according to their obligations under the Bill would be impractical and undesirable. I will expand on those two points in just a moment.

[Emma Hardy]

I understand what the right hon. Member for South Holland and The Deepings is trying to do. Would it help him to know that there were consultations on the national student survey—the annual review of student satisfaction—and that one of the questions looked at related to free speech? Might that satisfy his aim, without having a negative impact on smaller providers, which will end up further down the rankings because they lack the resources to put on the events that wealthier institutions can?

[Matt Western]

I thank my hon. Friend for that suggestion.

What the amendment proposes is impractical. In evidence, we heard about the undefinable nature of the chilling effect. One of the Bill’s stated aims is to erode that effect, but how can the OfS be expected to rank universities on how they do that? As my right hon. Friend the Member for North Durham put it:

“Getting your head around the idea of self-censorship is like having blancmange in your hands.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 95, Q194.]

How is it substantive? How is it made quantifiable and therefore a true measure?