Higher Education (Freedom of Speech) Bill

Debate between Emma Hardy and Matt Western

Report stage
Monday 13th June 2022 Commons Chamber

[Matt Western]

The hon. Member is right. A pattern is clearly emerging, which I will describe and examine in due course.

Having an Orwellian director for freedom of speech sounds like a contradiction in terms, but the appointee will certainly have sweeping powers. They alone will be responsible for making sure that universities and student unions are upholding their freedom of speech duties. They will act as judge, jury and executioner in free speech complaints and will potentially monitor overseas funding of universities and student unions. As job descriptions go, it is unprecedented. Incredibly, the job description is already out there, for anyone who is interested, with a £100,000 salary and a four-year term—I am not sure, Madam Deputy Speaker, but it could be on your horizon.

New clause 4 should not be necessary, but in the context of this Government’s record on appointees, it most definitely is. Let us start at the very top of the tree. In February last year, Lord Wharton, a Conservative peer, was appointed as chair of the Office for Students. His appointment was something of a surprise to many; he himself admitted that he had no experience in the higher education sector. It seems that the only criterion for his appointment by this Government was that he had run the Prime Minister’s leadership campaign.

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

The standardisation provided by allowing a body such as a Select Committee to interview a person before appointing them to a role such as chair of Ofsted is common. The Minister knows that, because she was on the Education Committee with me when we did pre-appointment hearings, so it seems a little unusual that scrutiny is not seen as being as important in this aspect of education as in other areas.

[Matt Western]

My hon. Friend is absolutely right. We need more process, more transparency and an honest approach if we are to clean up our politics. I absolutely believe that that is what I would want any organisation to have. We must move away from what appears to be an increasingly transactional approach to these appointments.

In return for his being appointed, Lord Wharton’s company GBMW Ltd made what is now referred to as a golden thank you for being handed the job by the Prime Minister: a donation to the Conservative party of £8,000. That is small change for him, given that he gets paid £60,000 for just two days’ work per week.

Last month, we discovered that Lord Wharton had chosen to speak at the Conservative Political Action Conference in Hungary. It was a sell-out. In his speech, he endorsed Viktor Orbán’s far-right, autocratic regime—the regime that had forced George Soros’s Central European University to leave Budapest in 2019. So much for our champions of academic freedom! He also shared a platform with Zsolt Bayer, a television talk show host in Hungary who has been widely denounced for his aggressive racism; his grotesque comments do not bear repeating in this place.

Despite widespread condemnation from student groups here such as the Union for Jewish Students, and cross-party calls for the Government to take action against the chair, it is telling that Ministers have so far refused to do so. That is important, because independence, propriety and accountability in public life absolutely matter. That is the point of new clause 4.

It seems that the politicisation of the Office for Students has not stopped there. Three months ago, the Secretary of State appointed Rachel Houchen, the wife of the Tory Tees Valley Mayor Ben Houchen, as a non-executive director on the board of the Office for Students, despite her having no direct experience in the higher education sector.

In that context, the comments made in Committee by one of the Government’s own witnesses, Professor Nigel Biggar, especially alarmed the Opposition. He agreed that

“the Government…given the legislation…wants a director who has a certain partiality of that kind.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 22, Q40.]

Even the Government’s own witnesses fear that the appointment will not be impartial: Dr Arif Ahmed and others made the point that the person “has to be impartial”.

In Committee, the Minister responded to a series of Opposition amendments by stating:

“There is no need to set up the bureaucracy of a non-statutory advisory body, as suggested by the amendment. The OfS is independent of the Government, so to do so would simply duplicate its role as set out in the statute.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 22 September 2021; c. 343.]

Well, clearly not. If the appointments to the OfS are meant to reassure us that the director will be impartial, they have lost all credibility. I dare say that the Minister will repeat the same line today, as she has done—blind to any suggestion of improvement, not least because this morning her Department advertised for the position even though the Bill has not even had its Third Reading.

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[Matt Western]

I do not want to suggest that all people come from a position of partiality, but some are more partial—and overtly partial—than others. That was the whole point of what I tried to illustrate in the case of the chair of the Office for Students, who was clearly appointed according to the preference of the Government at the very highest level and the Prime Minister. I think that that surprise appointment, along with the appointment of the board member with no previous experience, is a further illustration of just how rabid this has become in our politics.

[Emma Hardy]

The issue of impartiality in the appointment process was debated in detail in Committee. We had a long debate about the job specification, the requirements, the importance of previous experience and the need to appoint someone with previous understanding of legislation and law, and the fact that the process needs to be impartial. When we appoint the new chair of Ofsted, we do so not on the basis of whom the Prime Minister of the day particularly likes, but on the basis of whether that person has the competencies that the job requires, and that is the point of our amendment. If such a person is to be appointed, we need the best person for the job, not the person who is most popular with the current Prime Minister.

[Matt Western]

My hon. Friend made some telling and constructive contributions in Committee, and I entirely agree with her. If we want the best from any system of higher education and its regulation, competencies must be at the heart of that.

Have a look through the job description for the director for freedom of speech, Madam Deputy Speaker. Four or five specified qualities are sought. It is worth a read, and indeed I am thinking of possibly putting in for the job. What is most surprising of all—this arose both in the Bill Committee and during our witness sessions, as my hon. Friend and others will doubtless recall—is that despite the overriding impression that, given the sensitivity and importance involved and given how delicate some of these cases will become, legal experience would be a necessity, there is no requirement for that legal expertise. We must make the process involved in any public appointment much more robust, but that applies particularly to the appointment to a position as sensitive and delicate as overseeing freedom of speech on our campuses.

Skills and Post-16 Education Bill [ Lords ] (Second sitting)

Debate between Emma Hardy and Matt Western

Tuesday 30th November 2021 Public Bill Committees

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

It is a pleasure to serve under your chairship, Mr Efford. I rise to speak in favour of amendments 27 and 28 in my name, and amendments 1, 2 and 3, in the name of my hon. Friend the Member for Rotherham. I want highlight that the Library briefing on the Bill states that 18% of the learners currently in the FE and skills sector have a recognised learning difficulty or disability. When we talk about people with disabilities, we are not talking about a very small minority; we are talking about 18% of those people. The amendments that I and my hon. Friend the Member for Rotherham have tabled are very similar. They all basically try to do the same thing: to ensure that the voices of disabled people are heard and recognised in the Bill. They also address the disability employment gap. Mr Efford, I should have mentioned that I am vice-chair of the all-party parliamentary group on SEND, which is where a lot of my interest comes from. I know from the work of the APPG and on the amendments that there is a lot of cross-party support for these measures, which we also saw in the Lords. This is not a party political issue. I hope the Minister takes it seriously.

Recent figures show that disabled people have an employment rate that is 28.4 percentage points lower than people who are not disabled. There is a huge disability employment gap and the amendments hope to address that. I recognise that the issue is complex and that there are a number of Government initiatives to address it, but it would be a missed opportunity not to use the Bill and the new process of skills planning that it brings about to help ensure that people with disabilities can contribute to their local economy and that their voices are heard in the discussion of what that local economy should look like. All too often, people with disabilities feel that their voices are not heard. The amendments aim to ensure they are listened to and recognised, and that some action is taken on the disability employment gap. That is the aim of all the amendments in my name and that of my hon. Friend the Member for Rotherham.

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

I welcome you to your place, Mr Efford. I want to lend my support to my hon. Friend the Member for Kingston upon Hull West and Hessle and others on this group of amendments. They seek to ensure that the LSIPs take the needs of disabled people and those with special educational needs into account.

Currently, further education caters for a large number of students with such needs, which can be complex. The latest data shows that roughly half of disabled people are in employment—just 53%—compared with just over four out of five non-disabled people. The employment rate for disabled people with severe or specific learning difficulties was 18% back in 2019, the lowest rate of any impairment group. The House of Commons Library briefing notes that 52% of disabled people were in employment, down from 54%, which is really concerning.

The Workers Educational Association notes that

“adult learners in community provision are those with low or no qualifications, who require the most support in order to progress to higher level qualifications.”

Learning disabilities add to that complex state of affairs, which justifies the inclusion of an amendment to provide more support for people with learning disabilities. In its evidence to the Committee, Engineering UK said:

“38% of respondents…reported a lack of role models to be a barrier for pupils with special educational needs”.

One of the employers in my region, the National Grid, is doing extraordinary stuff in engaging and giving work opportunities to young people with complex needs, through its EmployAbility scheme. It is an exemplar project that it has been running for several years.

Those are some of the reasons why the amendments are important to the Bill. The Government’s impact assessment says that those from SEND backgrounds are “disproportionately” likely to be affected, and it is therefore a cruelty not to legislate where possible to mitigate that disproportionate impact. We think it is vital that such provisions be written into the Bill, which is why the amendments have been tabled. We need to highlight the challenges and make sure that we are as inclusive a society as possible, and that we allow for the needs of people with SEND in skills provisions.

Skills and Post-16 Education Bill [ Lords ] (First sitting)

Debate between Emma Hardy and Matt Western

Tuesday 30th November 2021 Public Bill Committees

[Emma Hardy]

Let me offer the Minister a concrete example of the situation in Hull. We have the Hull and Humber chamber of commerce, which reaches over to the south bank, and we have a newly formed LEP that serves just Hull and the East Riding. We have a careers scheme for Hull and the Humber, and separate counties that have no overall mayoral authority, but an elected police commissioner for the whole of the Humber. To say that is muddled does not go far enough. I really feel that the amendment should make allowances for areas that are as muddled as Hull.

[Matt Western]

That is a good illustration of just how complicated these matters can be. I hope that there will be greater clarity on how the measures will work in future.

We have heard from colleagues how well things can work, including my hon. Friend the Member for Denton and Reddish, who told us about how Manchester is just getting on with it. Having been up there recently, I have seen the extraordinary work of that cluster of universities and colleges, and how they are co-operating and collaborating in their brilliant work to bring skills to their known geography—I want to place on the record how mighty impressive that was. I agree with the hon. Member for Mansfield on counties and how they work in their regions; that must be clarified as well.

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[Matt Western]

rose—

[Emma Hardy]

rose—

Skills and Post-16 Education Bill (First sitting)

Debate between Emma Hardy and Matt Western

Committee stage
Tuesday 30th November 2021 Public Bill Committees

[Emma Hardy]

Let me offer the Minister a concrete example of the situation in Hull. We have the Hull and Humber chamber of commerce, which reaches over to the south bank, and we have a newly formed LEP that serves just Hull and the East Riding. We have a careers scheme for Hull and the Humber, and separate counties that have no overall mayoral authority, but an elected police commissioner for the whole of the Humber. To say that is muddled does not go far enough. I really feel that the amendment should make allowances for areas that are as muddled as Hull.

[Matt Western]

That is a good illustration of just how complicated these matters can be. I hope that there will be greater clarity on how the measures will work in future.

We have heard from colleagues how well things can work, including my hon. Friend the Member for Denton and Reddish, who told us about how Manchester is just getting on with it. Having been up there recently, I have seen the extraordinary work of that cluster of universities and colleges, and how they are co-operating and collaborating in their brilliant work to bring skills to their known geography—I want to place on the record how mighty impressive that was. I agree with the hon. Member for Mansfield on counties and how they work in their regions; that must be clarified as well.

--- Later in debate ---

[Matt Western]

rose—

[Emma Hardy]

rose—

Skills and Post-16 Education Bill (Second sitting)

Debate between Emma Hardy and Matt Western

Committee Debates: 2nd Sitting & Committee stage
Tuesday 30th November 2021 Public Bill Committees

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

It is a pleasure to serve under your chairship, Mr Efford. I rise to speak in favour of amendments 27 and 28 in my name, and amendments 1, 2 and 3, in the name of my hon. Friend the Member for Rotherham. I want highlight that the Library briefing on the Bill states that 18% of the learners currently in the FE and skills sector have a recognised learning difficulty or disability. When we talk about people with disabilities, we are not talking about a very small minority; we are talking about 18% of those people. The amendments that I and my hon. Friend the Member for Rotherham have tabled are very similar. They all basically try to do the same thing: to ensure that the voices of disabled people are heard and recognised in the Bill. They also address the disability employment gap. Mr Efford, I should have mentioned that I am vice-chair of the all-party parliamentary group on SEND, which is where a lot of my interest comes from. I know from the work of the APPG and on the amendments that there is a lot of cross-party support for these measures, which we also saw in the Lords. This is not a party political issue. I hope the Minister takes it seriously.

Recent figures show that disabled people have an employment rate that is 28.4 percentage points lower than people who are not disabled. There is a huge disability employment gap and the amendments hope to address that. I recognise that the issue is complex and that there are a number of Government initiatives to address it, but it would be a missed opportunity not to use the Bill and the new process of skills planning that it brings about to help ensure that people with disabilities can contribute to their local economy and that their voices are heard in the discussion of what that local economy should look like. All too often, people with disabilities feel that their voices are not heard. The amendments aim to ensure they are listened to and recognised, and that some action is taken on the disability employment gap. That is the aim of all the amendments in my name and that of my hon. Friend the Member for Rotherham.

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

I welcome you to your place, Mr Efford. I want to lend my support to my hon. Friend the Member for Kingston upon Hull West and Hessle and others on this group of amendments. They seek to ensure that the LSIPs take the needs of disabled people and those with special educational needs into account.

Currently, further education caters for a large number of students with such needs, which can be complex. The latest data shows that roughly half of disabled people are in employment—just 53%—compared with just over four out of five non-disabled people. The employment rate for disabled people with severe or specific learning difficulties was 18% back in 2019, the lowest rate of any impairment group. The House of Commons Library briefing notes that 52% of disabled people were in employment, down from 54%, which is really concerning.

The Workers Educational Association notes that

“adult learners in community provision are those with low or no qualifications, who require the most support in order to progress to higher level qualifications.”

Learning disabilities add to that complex state of affairs, which justifies the inclusion of an amendment to provide more support for people with learning disabilities. In its evidence to the Committee, Engineering UK said:

“38% of respondents…reported a lack of role models to be a barrier for pupils with special educational needs”.

One of the employers in my region, the National Grid, is doing extraordinary stuff in engaging and giving work opportunities to young people with complex needs, through its EmployAbility scheme. It is an exemplar project that it has been running for several years.

Those are some of the reasons why the amendments are important to the Bill. The Government’s impact assessment says that those from SEND backgrounds are “disproportionately” likely to be affected, and it is therefore a cruelty not to legislate where possible to mitigate that disproportionate impact. We think it is vital that such provisions be written into the Bill, which is why the amendments have been tabled. We need to highlight the challenges and make sure that we are as inclusive a society as possible, and that we allow for the needs of people with SEND in skills provisions.

Skills and Post-16 Education Bill (First sitting)

Debate between Emma Hardy and Matt Western

Tuesday 30th November 2021 Public Bill Committees

Matt Western

- - Excerpts

I agree with my hon. Friend, and I think many hon. Members, including the hon. Member for Mansfield, will be disappointed about that. It is really important that the Government send clear messages about devolution and what they want to see, but in many facets of Government business there seems to be a greater concentration of powers coming into Whitehall and Ministers’ offices than devolution to the likes of Mansfield, Manchester, Liverpool the north-east and so on.

As I said, one of the great learnings of the last 20 months is just how brilliantly our local services and authorities can deliver things. That is because they understand their geography, their communities and their populations. I am concerned about how due consideration, a much-vented issue in the last half hour, might work, particularly given the reliance on the personality of the individual who happens to be in the seat at the time. I will not go into any further detail on that because it has already been much explored.

Will the Minister provide a bit more information on what factors will be considered in the designation of an LSIP? The Local Government Association has stated:

“the reforms need to be implemented as part of an integrated, place-based approach. Without a meaningful role for local authorities, the reforms risk creating an even more fragmented skills system, with different providers subject to different skills plans”

I urge the Government and the Minister to listen and respond to the experience of the Local Government Association.

Emma Hardy

-

Let me offer the Minister a concrete example of the situation in Hull. We have the Hull and Humber chamber of commerce, which reaches over to the south bank, and we have a newly formed LEP that serves just Hull and the East Riding. We have a careers scheme for Hull and the Humber, and separate counties that have no overall mayoral authority, but an elected police commissioner for the whole of the Humber. To say that is muddled does not go far enough. I really feel that the amendment should make allowances for areas that are as muddled as Hull.

Matt Western

- - Excerpts

That is a good illustration of just how complicated these matters can be. I hope that there will be greater clarity on how the measures will work in future.

We have heard from colleagues how well things can work, including my hon. Friend the Member for Denton and Reddish, who told us about how Manchester is just getting on with it. Having been up there recently, I have seen the extraordinary work of that cluster of universities and colleges, and how they are co-operating and collaborating in their brilliant work to bring skills to their known geography—I want to place on the record how mighty impressive that was. I agree with the hon. Member for Mansfield on counties and how they work in their regions; that must be clarified as well.

--- Later in debate ---

Matt Western

- - Excerpts

rose—

Emma Hardy

-

rose—

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

Debate between Emma Hardy and Matt Western

Wednesday 22nd September 2021 Public Bill Committees

[Matt Western]

I thank the right hon. Gentleman for the clarification. As he has said, in essence this was a policy introduced by the coalition Conservative Government. I am interested to hear what the Minister’s view is in response to this amendment.

I have read that, in the view of Corey Stoughton, director of advocacy at the human rights organisation Liberty, the tactics of the strategy for monitoring campus activism has had a

“‘chilling effect’ on black and Muslim students, provoking self censorship for fear of being labelled extremist.”

We have to be very careful here, because blanket exemption is just as bad as blanket application. I have looked through the responsibilities of universities, which already have done very well to balance freedom of speech with the Prevent duty. My hon. Friend the Member for Brighton, Kemptown and I have discussed how the Nottingham Two incident—the right hon. Gentleman may be familiar with it—played out, and how such situations can be avoided. There must be an obvious method of ensuring that academics can research these subjects, whether it be the cultural impact of drugs or the impact of certain political movements, without the police knocking on the door. I would have thought that an obvious way of avoiding problems and difficult situations on campus would be to introduce processes to allow academics to make their governing bodies and departments aware of their work.

[Emma Hardy]

I believe I understand what the right hon. Member for South Holland and The Deepings is trying to do with this amendment, but I return to our previous point that the big problem with this Bill is how it interacts with other pieces of legislation, and what impact it will have. That is why we talked about putting into the Bill the other pieces of information that we have mentioned. I am sure the Minister will refer us to guidance that is coming shortly to deal with this. The Bill does not exist on its own, so, as my hon. Friend says, the implementation will be incredibly complex. That goes back to the points we made this morning about who the person will be who has to try to decipher this very complicated piece of additional legislation.

[Matt Western]

Exactly that—it is about how this Bill will play with existing legislation and how the responsibilities will be balanced. The fact, and the overriding argument, is that institutions in the higher education sector have done an amazing job of balancing the obligations and the competing freedoms that exist on our campuses, and they have done so with very few problematic exceptions. It will be interesting to see how this individual and their department will handle that. I do not hold out a huge amount of confidence and hope in what they will do, but I will be interested to see what the Minister says in response to the amendment, and we will hold fire until we have heard her words.

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

Debate between Emma Hardy and Matt Western

Wednesday 22nd September 2021 Public Bill Committees

[Matt Western]

I think it is important that there are references to other legislation in the Bill. Such elements are critical to the foundation of a freedom of speech Bill.

Amendment 40 would allow the scheme to result in a warning rather than a recommendation or a fine. This is about recognising that in most, if not all, cases, there is a fine line. It would allow universities to make judgment calls that were wrong and give them room to change their mind, rather than leap towards fines. We heard, for example, from Bryn Harris, who commented on how to balance

“the potential conflict that we were talking about, between the Equality Act”—

harassment provisions “and this Bill”, which would have to

“have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]

Hand in hand with the guidance—not mandatory—is warnings, or gentle persuasion. The vice president of the National Union of Students, Hillary Gyebi-Ababio, said that it is

“really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128, Q281.]

That, of course, will have a disproportionate impact on smaller institutions, as we have heard. We have repeatedly made the point about the smaller institutions, typically higher education bodies, but also further education colleges, that were not consulted at all in the drawing up of the legislation.

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

It is a shame that the evidence from the Association of Colleges came late. I want to draw Members’ attention to it. I said previously that the provision would apply to 170 FE colleages, and in its evidence the AOC gives the number as 169. It states that if the Government are able to exempt junior common rooms from the legislation, they should be able to exempt FE colleges, as there is no evidence of issues relating to freedom of speech in any FE college. As my hon. Friend the Member for Brighton, Kemptown has already mentioned, FE colleges are additionally regulated by Ofsted.

[Matt Western]

It is indeed surprising and disappointing, if not a failure of the process, that the further education colleges were not consulted. That point has been made clear and loud by the Association of Colleges, which feels alienated from this process, yet it will bear the same burdens as higher education institutions.

Turning to amendment 42, it is vital to include an appeals process. Appealing an administrative or judicial decision is the hallmark of any liberal democracy. The existing process overseen by the Office of the Independent Adjudicator does have an appeals process, but revealingly the Bill promises none. My hon. Friend the Member for Kingston upon Hull West and Hessle put that point to the only lawyer that we heard from in oral evidence, Smita Jamdar of Shakespeare Martineau. My hon. Friend asked her whether she was

“supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK”,

to whch Ms Jamdar replied:

“Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]

Both the OIA and Universities UK highlighted the fact that in the Bill the Government are proposing a director of freedom of speech who is judge and jury in decisions on universities, and there is no right to appeal. Professor Paul Layzell from Universities UK picked up that point when he said, in what I think was a masterly understatement:

“I think we would have a concern.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126, Q276.]

The OIA has an appeals process. Why does the OfS not have one or one that will be included in the Bill? Universities UK says there would be

“no right to appeal an OfS decision.”

It says that if there were a decision that a university student union felt was genuinely unfair, it would be forced to implement it, irrespective of whether it felt there was a right of reply. UUK underscored the fact that existing routes, such as the OIA, have an appeals mechanism. UUK feels that this is absolutely appropriate, and such a mechanism must be brought into the OfS scheme as well.

New clause 8, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, has become significantly more relevant since we tabled it. The Minister has consistently referred to guidance in her replies to more or less all of our amendments. Now, she has the chance to let us see that guidance before the Bill is put in the statute book. We urge that that guidance be made available, before Report and certainly before the Bill passes into law.

We are not the only ones who want to see that in legislation. I recall Professor Stock’s comment:

“The Bill is quite vague, so it is going to need a lot of guidance, concrete examples and accompanying notes.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 6, Q3.]

In his testimony, Dr Ahmed said:

“With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 18, Q31.]

If the relationship between the duties in this Bill and the Equality Act 2010 are to be decided in guidance, as Dr Ahmed suggests, surely we have to see the guidance before the Bill is enacted. The force of the Equality Act 2010 could be undermined through the backdoor, with no parliamentary scrutiny. As Smita Jamdar said:

“I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 58, Q113.]

As I have said repeatedly, we need to see guidance on this before Report or, at the very latest, before the Bill receives Royal Assent. All these amendments tighten up the legislation, reduce or delete duplication and confusion, and underline the importance of an appeals process for all bodies, so that they can challenge any ruling from the OfS director of free speech.

[Emma Hardy]

It is a pleasure to serve under your chairship, Sir Christopher. I have to correct the record on the number of FE colleges affected. I originally said 170, then I said 167, but for the record this relates to 165 FE colleges.

My hon. Friend talked about amendment 39 and the reason we want to set out in the Bill the different pieces of legislation that could have an impact on free speech. The oral evidence we heard shows that there is confusion about how the Bill will interact with existing legislation.

UUK asks that the Government

“clearly outline how this Bill will interact with existing legislation and other duties which relate to free speech and academic freedom”.

Sheffield Hallam submits that:

“the Bill would set a higher standard for freedom of speech expectations, with consequent potential difficulties in relation to the 1986 Education Act, the 1998 Human Rights Act and the 2010 Equality Act.”

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[Matt Western]

My right hon. Friend makes a very important point. That is one of the failings of our process in this country. I came across that when looking at international trade and the trade deals that might be struck by the US representative body. In the US, a trade deal would go before another Committee, which would have a veto on the criteria of the deal and whether it should be approved. The same thing should apply to this as well.

[Emma Hardy]

My hon. Friend might recall that the Education Committee did not approve the appointment of Amanda Spielman as chair of Ofsted, but that was ignored by the Government and she was appointed. It does not even say in the Bill that there would be scrutiny through the Education Committee, which is something the Minister could at least clarify.

[Matt Western]

I was not aware of the case of Amanda Spielman, but we are increasingly seeing this sort of interference across the board. I have mentioned the case of the museum, and there is also the case that my hon. Friend has cited. What we want to do is put checks and balances in the system. If we were in government, we would expect the Conservative party to be saying the same of us. An honest and appropriate approach is needed. My right hon. Friend the Member for North Durham mentioned the US system, which is far tighter than so much that we have in this country. I just do not understand how the US can be doing it so well, yet we are not.

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[Matt Western]

It sounds as though we may be being slightly selective in our quotes from Dr Ahmed, because I take something slightly different from what he said. I take on board the point that the right hon. Gentleman has made, but I reiterate that, as Dr Ahmed has said:

“There are always concerns with the regulator—that it has to be impartial”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]

That is where we have real concerns about the direction of travel with the OfS.

[Emma Hardy]

To clarify, and to put this as succinctly as possible, we are asking for the person to be appointed on the basis of what they know, not who they know. That is pretty much what all these amendments amount to. I draw the Committee’s attention to the appointment process for the OIA chair, because it looks much fairer. It focuses on the need for relevant skills and expertise, and the chair is

“appointed through fair and open competition in line with the Nolan Principles because of the value and relevance of their skills and experience.”

The OIA is not Government-owned or funded, and the chair is appointed as an independent trustee. That is the kind of thing that we are looking at here. If we refer back to the evidence given by UUK and many others, including the lawyer, we can see that they were looking for someone with some kind of legal experience and knowledge of the sector, who was appointed independently. Everybody from those evidence sessions would say the same thing if they were sitting here: “Let’s have some independence in this process.”

[Matt Western]

I thank my hon. Friend, who has mentioned points that I was just about to come to.

[Emma Hardy]

Sorry.

[Matt Western]

It is absolutely fine, and I appreciate it. The Universities UK advisory board said quite explicitly that openness and transparency are needed in this appointment.

I wanted to come on to the models that we could be using to improve the appointment of the director for freedom of speech; we recognise that the Government are determined to have such a position. In the Office of the Independent Adjudicator, nine of the board of trustees, including the chair, are independent director-trustees. They are appointed through a fair and open competition in line with the Nolan principles, as my right hon. Friend the Member for North Durham has just mentioned, based on the value and relevance of their skills and experience. From what we heard in the evidence sessions, it was not absolutely clear what skills and experience the director for freedom of speech might need, but we certainly had some insight into the values that they might have.

In December 2016, the Cabinet Office published its governance code for public appointments, in which it was made clear that all public appointments should be governed by the principle of appointment on merit. I accept that there were conflicting views in the evidence sessions on whether the director should have legal experience—personally, I believe that that is necessary—but surely we can all agree that the position should be awarded on the basis of merit, as defined by the Government’s own governance code.

--- Later in debate ---

[Matt Western]

This has been an important debate. As we have said, this will be way too much power invested in one individual. That will then lead to that individual’s interpretations of situations against their personal set of values and principles.

[Emma Hardy]

Hopefully, the next time the Minister stands up she might be able to clarify whether the appointment of the director for freedom of speech and academic freedom will be subjected to a pre-appointment process with the Education Committee, in the way that Amanda Spielman was when she was appointed to Ofsted, for example, and in the way that the Committee deals with other educational appointments? Will we have that pre-appointment hearing?

--- Later in debate ---

[Matt Western]

Indeed. The purpose behind new clause 9 is to have a process whereby the appointment goes through the appropriate body in the House of Commons, which we suggest is the Education Committee.

The bottom line is that we do not see any safeguards in the process. We do not see any checks or balances to ensure that this individual does not abuse the power and influence that they may weald. It is important to have some trust in the appointment process, which is why new clause 9 says the appointment should go through the Education Committee, ideally with some pre-appointment consideration. There are many advantages to that, not just in terms of the power to veto.

The Education Committee should have more say anyway. It is important to empower these bodies, as my right hon. Friend the Member for North Durham described when he talked about the veto processes that exist in the US system but that we seem to ignore completely. Those are the sorts of checks and balances that we want to see introduced.

[Emma Hardy]

The reason for talking about the Education Committee is that people said in some of the evidence that they wanted democratic oversight. We are fully aware that the Education Committee is balanced by who has the majority in Government, so there would currently be a Conversative majority, but it is still an important democratic safeguard to have a separate body to scrutinise the appointment and have a veto. I hope that is something the Minister will take away and seriously consider.

[Matt Western]

I am sure that the Minister is listening to these points. I think the Education Committee should have certain powers and status, and its involvement in these processes would be useful. I would even widen this to a broader panel if possible, with sector involvement as well, because experience, expertise and understanding of the reality on the ground is important. Having someone parachuted in because their political persuasion suits the Prime Minister is not a good way to govern such an important part of our democratic landscape.

The concern is that there will be a clear differentiation between—

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

Debate between Emma Hardy and Matt Western

Monday 20th September 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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—

--- Later in debate ---

[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.

--- Later in debate ---

[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?

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

Debate between Emma Hardy and Matt Western

Monday 20th September 2021 Public Bill Committees

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

rose—

[Matt Western]

rose—

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Emma Hardy and Matt Western

Thursday 16th September 2021 Public Bill Committees

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

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

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

My wife works at a higher education firm.

--- Later in debate ---

[Matt Western]

I beg to move amendment 44, in clause 1, page 3, line 28, after “education” insert—

“and in the conduct of research”

This amendment would ensure that higher education providers must promote the importance of academic freedom in the conduct of academic research as well as teaching.

This is another example of a small detail that we wish to amend. As we said throughout yesterday’s proceedings, we want to keep to a minimum any damage that the legislation might cause to our institutions, the viability of student unions and, indeed, the entire sector. The amendment equates protecting freedom of speech and academic freedom, not just for teaching, but for the conduct of research as well.

The point that we want to stress and to have reflected in the Bill is that all too often, observers of the higher education sector think purely about education in the form of instruction, as my hon. Friend the Member for Brighton, Kemptown said. Teaching can be instruction, of course, but in the realm of higher education institutions in particular, there is differentiation when it comes to research.

Research is so important; it is the fundamental differentiator in institutions’ success and reputations. The amendment would add the words

“and in the conduct of research”

because research is important not just to society but to the development of our understanding of humanity and more. Dr Ahmed said that academics should be allowed to pursue

“lines of research that they think might be fruitful”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 13, Q22.]

That is why we want to ensure that, as we heard in evidence, research is at the core of the sector. It needs to be included where possible, to remind everyone of just how central it is to the debate.

[Emma Hardy]

This discussion follows on quite well from debate on amendment 59, tabled by the hon. Member for Congleton, in that it seeks to close a loophole for masters and PhD students. That is what amendment 44 is intended to resolve. Our discussion about academic freedom and freedom of speech applied to those involved in teaching. The amendment nips off that loophole so that the provisions can apply to masters and PhD students.

[Matt Western]

I thank my hon. Friend for her intervention. In response to a point by the right hon. Member for South Holland and The Deepings about the detransitioning of research at the University of Bath, Professor Whittle said in evidence that

“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]

The amendment would incorporate innovative research under the academic freedom duty, and that would push the likes of the University of Bath towards further exploring how such research proposals could be encouraged. It is a very simple amendment, but we hope that, in the spirit of how we have tried to co-operate, the Government will accept it.

[Michelle Donelan]

This amendment seeks to extend the duty of higher education providers to promote the importance of freedom of speech and academic freedom so that it specifically applies in the conduct of research, as well as in the provision of higher education more generally. The duty set out in proposed new section A3 of the Higher Education and Research Act 2017, created by clause 1 of the Bill, is a new one. It requires a provider to promote the importance of free speech within the law and academic freedom throughout its provision of higher education. This is a general duty that intends to drive a positive tone on campuses across the country, promoting a culture in which everyone on campus can express their lawful views, and in which academics feel safe to question and test received wisdoms and put forward new ideas and controversial or unpopular opinions.

--- Later in debate ---

[Emma Hardy]

Absolutely. I state again, referring to the written evidence of the Free Church Group, that it

“affirms the importance of freedom of speech and academic freedom.”

I would not wish this to be interpreted in any way as the group being against free speech—it is not. It is saying that, for the purposes of the Bill, we need to have a look at the question of premises and whether some premises, or some individual rooms within premises, should be in some cases denied to certain groups, out of respect for what those premises are meant to be used for.

When the Minister replies, I hope that she takes the amendment in the spirit in which it is intended, although it is perhaps not perfectly drafted, as I have explained. However, we need to resolve that problem, because we should be mindful of the fact that people have different beliefs and opinions, and we have to show tolerance and respect at all times. All of us in this debate on free speech have said that we want to encourage a climate in which ideas are challenged, but that they should be challenged in a respectful way.

[Matt Western]

I thank my hon. Friend for the amendments, the clarity with which she presented them and the debate that they provoked—if I may use “provoked”. When we start to delve into this, it is interesting just how far-reaching the unintended consequences become. As has been examined, that is not just between external groups or about mischievousness between one group and another—whether religious or whatever—but about infiltration of groups, as my right hon. Friend the Member for Hayes and Harlington mentioned. Factions within different societies or groups might have challenges or issues of power, leading to problems on campus. Many will have views that are sacrosanct, for example, on the denial of the holocaust, and we have to respect that some places on campus should also be sacrosanct.

That can be reduced to a simple point: there is a time and a place for vigorous debate, and universities are good places for that, but we have to provide protections. That is what we have been seeking to do throughout, to ensure that individuals have protections and, here, to protect against an anti-religious group who might want to occupy a prayer room, for example. That is a conflict of duties, which would skew the balance too far in favour of freedom of speech, without referencing any of the competing freedoms to which Danny Stone referred in his evidence.

[Emma Hardy]

Referring again to the written evidence, the Free Churches Group is asking for urgent clarification and redrafting of this clause. It says:

“Whether the clause means no premises can be provided on the basis of beliefs etc is unclear and needs clarifying. If it does, the consequences for prayer rooms, chapels, chaplaincies, kitchens designed with sensitivity to religious beliefs, amongst other facilities, could be dire.”

That is the point that my hon. Friend makes. The problems with the way in which the Bill is drafted mean it is open to vexatious and disrespectful abuse.

--- Later in debate ---

[Emma Hardy]

I want to keep making one point. When we are talking about student unions and organisations, we are not just talking about Oxford and Cambridge; we are talking about all the small universities and colleges as well. It seems fairly ludicrous to me that every aspect of the Bill would apply to the very small higher education provision at Hull College, but would not apply to the junior common room. That does not seem equitable or fair.

[Matt Western]

My hon. Friend is absolutely right. To that we can add all sorts of institutions—Warwickshire College Group in my constituency and many others up and down the country. That is the concern. We have this absolutely bizarre situation where we will have a two-tier system operating. For some reason, those groups that are viewed by many as being more privileged and, some would say, elite—though I would not necessarily describe them as such—are somehow being protected and insulated from the legislation in a way that others are not. It seems to be an extraordinary contradiction of the legislation when they are perhaps in need of this legislation more than, or as much as, others.

That was the first point in terms of the dual effect: preventing student bodies from explicitly deciding not to affiliate. That is a real concern about the future of student union bodies. The second point was the effect of including outside student bodies, such as JCRs and MCRs. I mentioned the point about removing the picture of the Queen from Magdalen College in Oxford. JCRs and MCRs are just as lively forums as any affiliated student union. I therefore struggle as to why the Minister would not wish to support this proposal. All we are seeking is consistency and a level playing field. There should be one rule for all, not one rule for some.

--- Later in debate ---

[Matt Western]

My right hon. Friend hits the nail on the head. It is an absurdity and, as I keep saying, an inconsistency. All legislation should be fair and consistent, and the public and, in this case, organisations will see it as disadvantageous or favouring some rather than others. That is really problematic for the sector, and it is one of the unintended consequences that the legislation will lead to. As my right hon. Friend says, we will see what, as I said a moment ago, I fear is a disaffiliation. I see groups being spawned on university campuses that are outside the student union—they will have the moniker “JCR”, or whatever it may be—that will seek to circumvent any responsibilities under the legislation.

[Emma Hardy]

Some organisations, and some student organisations, will have the ability, resources and staff power to work out how to disaffiliate, and that will happen, but many will not. It comes back to equity. As my right hon. Friend the Member for Hayes and Harlington put it perfectly, we are either all in or all out. Liverpool Hope University, which is one of the smaller universities in Liverpool, has only three full-time members of staff at its student union. It simply does not have the same resources as many other organisations to put to working out how to circumnavigate the loophole that the Minister seems intent on leaving in the Bill. Again, we have this system of inequality and unfairness in the legislation as it is written at the moment.

[Matt Western]

My hon. Friend is right: there is an issue about how this will work across diverse organisations in the sector. It is problematic because it means that yet again there is one rule for some and another rule for others. When we are discussing, debating and writing legislation, we cannot allow that difference to be compounded in it. It seems absolutely wrong.

I listened with real interest to the conversation that my right hon. Friend the Member for North Durham and his counterpart the hon. Member for North West Durham had about some of the issues that they face on a local campus regarding certain organisations. My right hon. Friend cited particular problems with some of the Chinese-based societies and how they might be acting. This is nothing specific about China—it includes other groups as well—but to amplify that point, if we are not careful such groups will ensure that they are extracted from the remit of the legislation so that they are able to act freely and beyond this law. I urge the Government to take on board this very straightforward, sensible, consistent and pragmatic new clause and include it in the legislation. It is really important, and I am sure that we will hear more from my colleagues.

--- Later in debate ---

[Michelle Donelan]

If the hon. Lady will bear with me, I will come on to student societies.

In deciding what is reasonably practicable, student unions must have particular regard to the importance of freedom of speech. This will allow those involved in all aspects of university life to contribute to a culture of open and robust intellectual debate, without fear of repercussion. Those are new duties, providing new protections and ensuring coverage across campus. Proposed new section A5 will require student unions to maintain a code of practice, which will act as an aid for compliance with the new duty in proposed new section A4.

The code of practice must set out the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. That is in addition to the criteria for making decisions about student union support and funding, and who can use premises. The clause sets out the new duties on student unions that are vital for ensuring that freedom of speech is protected to the fullest extent within higher education in England. It is therefore an important and necessary part of this Bill.

New clause 4 would extend the duties on student unions at approved fee cap providers so that they also apply to junior and middle common rooms at colleges and student societies. Taking student bodies at constituent colleges first, the colleges fund their junior and middle common rooms and can exert a high level of control over their activities. We do not believe that imposing the duty on junior and middle common rooms would be appropriate, as they are autonomous, as has been said. Freedom of speech duties would be unnecessary and bureaucratic if applied to junior and middle common rooms. A point was made about booking systems, but even given that junior and common rooms may book rooms, those rooms are owned by colleges and the JCRs have no actual control over them. Given that, we do not believe that including them is necessary as the freedom of speech duties on the colleges will apply to the activities of their student unions. It is important to note that student unions at constituent colleges are not classified as student unions under the Education Act 1994. In addition, the administrative burden on providers to give the Office for Students details of the student unions of their constituent colleges in addition to their own student unions, with the OfS then under a duty to maintain a list of them, monitor their compliance with their duties and deal with them in regulatory terms, as well as under the complaints scheme, would be resource intensive and disproportionate. That point has been made many times by Opposition Members in relation to other issues that have been raised today.

As for student clubs and societies, if they are affiliated to the student union, they will be covered by the student union’s code of practice. If they are not affiliated, they will still be subject to their provider’s code of practice, a point that I think has been missed in today’s debate. For similar reasons to those I have already set out in relation to JCRs and MCRs, we therefore do not think it would be appropriate to extend the duties to cover those clubs and societies directly. I hope that this clarifies the points made, and that we can agree not to accept new clause 4 and to move forward with the rest of the Bill.

[Matt Western]

The debate on these particular points has been really healthy and robust, and my Labour colleagues’ contributions have been extremely important—I particularly note those of my hon. Friend the Member for Brighton, Kemptown. What we have been saying for the last hour or hour and a half is that all we are seeking is consistency in this Bill, and that we cannot afford to have a two-tier higher education system. The words “iniquitous” and “unfair” have been used, but the problem is that either we recognise there is a need for coverage for all bodies and all groups that are exclusively student, as was rightly said, or there is not. The Minister has just said that it would be unnecessary and bureaucratic for this provision to be applied to middle and junior common rooms. We would say that it is unnecessary and bureaucratic for all institutions, irrespective of what they are or their heritage and history, and particularly for the smaller organisations that we keep speaking up for. As is well understood by many of us in this room, the whole higher education sector is incredibly diverse. Many smaller bodies—further education colleges and so on—will not be geared up to sustain these changes.

[Emma Hardy]

Maybe the Minister cannot provide the evidence for this, or maybe I am making a mistake, but I do not understand how non-affiliated student societies that are privately funded will be covered under the Bill as it is written.

[Matt Western]

That is my real concern, which I was just about to come on to. There is real fear about these well-funded bodies; I mentioned the Chinese groups specifically because that point was raised by both sides, by my right hon. Friend the Member for North Durham and by, I think, the hon. Member for North West Durham. There is increasing evidence that these groups are seeking to influence our campuses from beyond, and that those groups will not be affiliated to those institutions.

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

Debate between Emma Hardy and Matt Western

Thursday 16th September 2021 Public Bill Committees

[Matt Western]

I agree entirely with my right hon. Friend. I am just not sure where this reporting will end. Will we end up with universities having to report about whether people are tweeting from a particular political persuasion, or the political leanings and make-up of those on the governing board, and so on? I think that is an alarming direction to be going in.

[Emma Hardy]

As we recall, the previous Secretary of State for Education wrote two letters to the OfS. In both those letters, he demanded that it reduce the amount of regulation given to universities, so I am not sure how the amendment stands with the directions of the now previous Secretary of State.

[Matt Western]

My hon. Friend is right, and her experience is appreciated and valued. I think we have a problem, in that the OfS is a bit of a misnomer. I am not entirely sure that its interests are aimed at students, or whether its responsibilities are more towards the institutions or, increasingly, about being an office for Government, as opposed to an Office for Students.

Do we have reporting on the number of incidents of violence against women? Do we have reporting data on mental health incidents and issues? There are so many important and pressing issues among our student communities across the country, but those are not being listened to by the OfS. I would have thought that, given it is a few years since its inception and it has a new chair, surely those are the sorts of issues that its chair would want to get into—to understand what is of concern to the student body, as opposed to what is of concern to the Government.

With the idea of having the report—we have debated what it might look like—I think back to the days of my previous role in business and, in a subsidiary organisation, of the reporting that would go to head office. How should it look, or was it just something we knew would just sit on a shelf and never really get looked at? It helped those in head office that they had those reports.

The crucial thing, I would say, is that with any move by the OfS, it has to look at systems of standardising the data that comes in on the areas that I have been discussing—mental health, violence against women, accommodation and so on—before it starts to introduce the burdens. As was said in the Government’s own impact assessment, the costs will already be something like £48 million over 10 years—the burden of this legislation, even before we get into quarterly submissions as well. At a time when universities and higher education institutions are under huge pressure, that is an unnecessary additional request.

--- Later in debate ---

[Matt Western]

I will address these amendments in turn. While I appreciate the three of them being grouped together, the essence of the amendments is about ensuring the retention of democracy within our institutions, whether that be among staff, students or the entire body. I thank my right hon. Friend the Member for Hayes and Harlington, who inputted the content of these amendments and is keen to speak to them.

It was interesting to hear from Danny Stone from the Antisemitism Policy Trust, who referenced the Manchester principles, which he worked hard on back in the day. Under those principles, an event was first advertised, in order to allow students to object if they thought it necessary. That is important. Amendments 75 and 76 echo the sentiment of the Manchester principles. We also heard in the evidence sessions from Professor Jonathan Grant from King’s College London about the work that KCL and other institutions have done. He said,

“What we did at King’s was work with our student union in developing a joint statement modelled on the Chicago principles and signed by both the president of the student union and the president of King’s College London. On the back of that, we developed a committee that reviewed all so-called high-risk events. That committee was made up of equal numbers of university staff, academics and professional staff, and students. It made recommendations to the senior vice-principal for operations and, potentially, to the principal. In my mind, creating a sort of co-production and co-creation process around managing those events was deeply beneficial because”,

as Professor Layzell had said,

“both sides started having conversations about the boundaries of what is and is not acceptable. Both groups then owned the process and the mitigations thereafter.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 123, Q268.]

The approach of KCL, University College London and many other institutions has been to establish these sorts of co-production and co-operative processes to ensure the rights to free speech are heard, but within an understanding and responsibility to the Equality Act 2010. That shows changes could have been put in place across the sector if the Government had consulted and engaged more openly with the sector, and looked at the likes of KCL, UCL and others to see best practice, what can be done, and what could be developed.

In response to the comments made by Professor Grant, Professor Layzell said that Universities UK would absolutely support that approach, and that what Professor Grant was saying was right. This can be achieved and it could have been achieved. That underlines the belief right across the sector that this legislation is unnecessary. Their process and these amendments seek to ensure the inclusion of all voices and all relevant parties interested in free speech on campus, and to achieve the cultural effect the Government are trying to achieve. We believe that, through a democratic process and through the engagement of all parties, that could have been, and could still be, achieved. As many have said, the legislation is a real sledgehammer to crack the proverbial nut.

I turn to amendment 74 on the countervailing right to peaceful protest by staff, students and other interested parties. We seem to be losing some sort of perspective on how important protest is. In the Police, Crime, Sentencing and Courts Bill, there is a move by the Government to suppress freedom of speech and people’s right to protest on whatever it may be, whether they be on the right, the left or anywhere in between. People have different views, and they should be allowed to express them. Protest is just one simple form of freedom of speech. I am sure, Sir Christopher, that you will appreciate that. Back in your days as a student, you would have wanted to exercise that right just as much as anyone else.

[Emma Hardy]

One of the contradictions that I find with the Bill is that it gives the right to freedom of speech anywhere at any time within a university; however, under the Government’s new Police, Crime, Sentencing and Courts Bill, they wish to ban protest in Parliament Square. It seems slightly muddled.

[Matt Western]

We could be slightly cynical. I would not personally suggest this, but some might suggest that it is about freedom of speech as long as your speech is the sort of speech that the Government want to hear, as opposed to a genuine desire to have freedom of speech. You have to look at the legislation in the context of not just the PCSC Bill but what is going on with our museums. Sir Charles Dunstone, who I thought was once upon a time a Conservative donor, has resigned from the Royal Museums Greenwich because of the interference coming from the Government.

That echoes the point made by my right hon. Friend the Member for North Durham that there is meddling, interference, and an authoritarian chill going on from No. 10. I do not necessarily believe that the Minister thinks or behaves like that, but an incredibly centralising force is coming through from the Government. Trevor Phillips, in his evidence, said:

“In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 26, Q50.]

We have that right presently, but it is being challenged by the Government. We need to remind ourselves how important freedom of speech is, and how important protest is to it.

Professor Whittle, who I had heard of and read about, gave quite moving evidence. He said:

“I have organised protests outside events myself but that has never been to close down the conversation. It has been to express an alternative point of view—to say, ‘Here are many voices who disagree with the voice inside.’”

It is really important that wherever we may be coming from we have the opportunity to protest and to put across our point of view, exercising our freedom of speech. He added:

“My main concern about the Bill is that it will provide an additional chilling effect overall, not to speakers but to potential protesters. It will result in people who want to express an alternative viewpoint, who are not speakers and do not have that opportunity to participate in the event…having no way of expressing that without appearing to challenge somebody’s right to free speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 38, Q71.]

That was picked up by my hon. Friend the Member for Kingston upon Hull West and Hessle, who said to him:

“So you would want to see amendments to the Bill that gave students the right to continue to protest, and not therefore fall under the guidance of the Bill.”

He replied:

“Absolutely. Legitimate protest within universities is an absolute must.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 44, Q81.]

What would universities be without protest? What would they be without true free speech? Amendment 74 serves to provide that protection of protest—a physical manifestation of freedom of speech and academic freedom.

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

Debate between Emma Hardy and Matt Western

Wednesday 15th September 2021 Public Bill Committees

[Matt Western]

As I said in my opening remarks, I believe that numerous small-detail changes to clause 1 that might make some difference can certainly be made, albeit that we believe that much, if not all, of this has already been written and is already in legislation. Nevertheless, changes can be made that could bring about a certain pragmatism and greater effectiveness to what is being proposed by the Government.

These two amendments involve just a couple of words. Amendment 51 relates to a perhaps slightly nuanced, but none the less important, interpretation. On the first Bill that I examined, I was in the company of the right hon. Member for South Holland and The Deepings, who was leading for the Government on their Bill on electric and autonomous vehicles. Listening to him and to others, I realised just how important language can be. The nuance of language is certainly important in both amendments.

Amendment 43 is quite specific and extremely important. I use the word “important”, and I am just about to examine the word “importance”. It is vital that we understand the significance of the amendment. The amendments address the relative importance of freedom of speech and academic freedom. We heard in the witness sessions that some people speak of a “chilling effect”, and it is interesting how language gets adopted and then becomes an assumed state. I think there is some appreciation that there are concerns out there and that things can and need to improve, but through the amendments I want to consider the weight we place on these two distinguishable concepts in the Bill, which arguably will affect how effective the Bill is at reducing the issues described by various witnesses.

Amendment 51 stresses the “primacy” of freedom of speech. Clause 1 inserts in the Higher Education and Research Act 2017 new part A1, which stresses that to secure freedom of speech within the law:

“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable”.

“Importance” is such an important word. Often, it is overly important and very subjective. What does it actually bring? As we heard during the evidence sessions, the importance that one person places on freedom of speech can vary, whether it be unparalleled—I am thinking of the evidence we heard from Professor Goodwin, and his desire to invite fascist groups such as the National Front to speak on campus, infringing upon the wellbeing of minority students—or limited. On the latter, I am thinking of the evidence from the vice-president of the National Union of Students, Hillary Gyebi-Ababi, and her explanation of the NUS no-platform policy for six proscribed bodies.

That is vague and subjective. We all think we know what is meant by importance or important, but how often have we read that something is important, when in fact we viewed it as not being so? That is why the concept of mere importance may be deemed to be too low a threshold. I propose to address that by elevating the threshold to one that is more objective and more concrete by using the word “primacy”.

In the oral evidence sessions, Professor Nigel Biggar, the Government’s own witness, addressed the concerns that freedom of speech would take primacy over academic freedom when the duty is balanced in practice. That is what I am seeking to address with my amendment. When asked by my hon. Friend the Member for Kingston upon Hull West and Hessle whether he would recommend that the Bill as written should deal with that imbalance, he replied: “Yes, I would.” That is pretty categoric. Primacy is absolute; that is the important thing. “Importance” is a value term, and that is why we will be pressing for “primacy” to be in the Bill.

Let me turn to amendment 43. Academic freedom and freedom of speech are of course interdependent, but they are also independent concepts. To avoid an imbalance of one in favour of the other, the values of both should be elevated to prime status, recognising the importance of both concepts simultaneously working with each other. That would address the policy objectives outlined by the Government in their Department for Education impact assessment: first, to

“embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus”

and, secondly, to ensure that

“staff are able to exercise freedom to question and test received wisdom”.

I believe that the two amendments are equally important, establishing primacy versus importance, but also stressing the vital nature of freedom of speech and addressing through this the policy objectives as outlined by the Government’s own Department for Education.

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

I thank all the Clerks for the work they have done on the amendments. I

Academic freedom came up from our witnesses time and again. I joked about it, but it is a truth that I managed to unite differing academics with wildly different opinions on many different issues on a single point: they all agreed that academic freedom was important and therefore should be on the face of the Bill. I will not keep the Committee long, but I am going to quote three of them.

Professor Stock “took it as implicit” that academic freedom was included within freedom of speech, but agreed that it was

“a bit confusing that ‘freedom of speech’ is the phrase.”

She went on to say that

“in terms of drafting, that could be clarified.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 12, Q20.]

When I asked whether we should have academic freedom in the Bill, she was supportive of the idea. Dr Ahmed agreed that if academic freedom was to be genuinely protected, it needed to be more explicit in the Bill. That was another of the Government’s witnesses.

Professor Biggar, another of the Government’s witnesses, said that

“academic freedom needs to have equal standing, because free speech and academic freedom are not the same things.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 29, Q54.]

He recommended that the imbalance in the Bill as written—that is, mentioning only freedom of speech—be addressed. He agreed with Taylor Vinters, whose submission has been referred to, that it was

“arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice”.

I hope that the Government will listen to their own witnesses who gave evidence on the importance of having both freedom of speech and academic freedom.

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

Debate between Emma Hardy and Matt Western

Wednesday 15th September 2021 Public Bill Committees

[Fiona Bruce]

I thank the hon. Lady for that gracious intervention. It is a pity that I cannot speak to amendment 60 in the same moment, because I think that would help clarify my reasoning for this amendment. I am concerned that without the express inclusion of students, there is a risk that those most vulnerable to self-censorship and adverse consequences in academia, such as being marked down, will remain unprotected.

There is the argument that freedom of speech, as referred to in the Bill, is sufficient to adequately cover students without the need to cover them through the term “academic freedom”. However, I would question that, as demonstrated by the examples I have given involving Professor Biggar and the midwifery student. I look forward to the Minister’s comments and ask her to consider the amendment as the Bill progresses.

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

It is a pleasure to serve under your chairmanship, Mrs Cummins. I listened to what the hon. Member for Congleton said. We have to be wary of where the amendment could take us in terms of the status conferred on academics by the term “academic freedom”. As the Minister herself said, it is a subset of a freedom of speech, but it is a really important one. That is why we sought to eke that out earlier, in order to make it sacrosanct: it stands alone, but it is linked to freedom of speech.

As regards the notion that students in their third week on campus could gain the status of academic freedom, I am not entirely sure, speaking from personal experience, that it would have been right for me to have been given that status when I had a degree of naivety about a particular subject, but I would be under the hon. Member for Congleton’s amendment. I do not think that that is right, because we are essentially putting students on the same level as those who have gone through a process of academic rigour to arrive at a position where they deserve this particular freedom and status.

[Emma Hardy]

rose—

[Sir John Hayes (South Holland and The Deepings) (Con)]

rose—

[Matt Western]

I will give way to my hon. Friend first.

[Emma Hardy]

We all agree that we want freedom of speech to apply to students. I wonder whether, as the Bill progresses, we might find an alternative place to make specific reference to them.

[Matt Western]

I now give way to the right hon. Gentleman.

[Matt Western]

I thank the right hon. Gentleman for his point and, likewise, my hon. Friend the Member for Kingston upon Hull West and Hessle for hers. I accept that there is a need for protection under freedom of speech. The differentiator for me is about academic freedom. I totally concur that all students, whether they be postdoctoral students or students in week two, arriving on campus in September or October of this year, have the right to freedom of speech, to say what they wish to say—with responsibility. But there is an area where I differ, and this was what I was edging towards in my questioning to various academics during the two witness sessions. What Professor Stock actually said was interesting. She made this very distinction. She thinks that

“the difference between academic freedom and freedom of expression”—

I am quoting her word for word—

“assuming there is one, can only be in principle grounded in expertise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q17.]

That is the case however we wish to define that expertise. And there is a problem, actually, about how people might consider what expertise is. I would say that the expertise is much more to do with methodology and understanding of academic rigour and discipline and how an academic arrives at a process of thinking, which a student is not necessarily—

[Emma Hardy]

A student is learning.

[Matt Western]

Yes, learning—going through that development. That is why students are attracted to going into higher education. It is to understand about the process of that academic rigour and methodology.

--- Later in debate ---

[Emma Hardy]

rose—

[Matt Western]

I will give way to my hon. Friend, and respond to the interventions together.

[Emma Hardy]

I am sorry, Mrs Cummins, I did not realise that in declaring our interests we had to say what our partners do. My partner is at the University of Hull doing degree apprenticeships, which I am very proud of.

To respond to the hon. Member for Congleton, our amendment 44 includes the words

“and in the conduct of research”,

to close the loophole that she has just mentioned, of a doctoral student involved in research. We would like to close the loophole with that amendment.

[Matt Western]

I thank the hon. Member for Congleton and my hon. Friend for their interventions. Yes, there is a differentiation between doctoral and undergraduate students.

Vitally, with academic freedom, special status is conferred. It is not something someone gets just because they turn up on a campus, or sign up to the Open University or whatever; it has to be conferred on those individuals who are, in essence, academics in the traditional sense. What they have is founded on their research—that thinking, the methodology, the scholarly debate. Ultimately, because their work is peer reviewed, it is understood to have a robust methodology. They have earned that—I used “earned” in the witness sessions, which was perhaps slightly the wrong word, and there might be a better word. It is an appreciation that the academic has gone through the academic thinking that has led them to express a particular thought or piece of research and outcome.

To my mind, that is the essential element, the primacy of academic freedom, which is why it is so important to separate it out from freedom of speech—hence our points this morning. Academic freedom defends the right to express ideas based not simply on opinion, but on academic research. I stress that point.

In the evidence session, the hon. Member for Congleton said:

“I am thinking not only that academic freedom is important generally for anyone at a university, but that some students, such as doctoral students, may also be tutoring.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q196.]

As she said earlier, that is an important distinction because that role has been given to them by the university. It has conferred on that person a status, and there is a responsibility that goes with it. That is a very important distinction.

--- Later in debate ---

[Sir John Hayes]

The hon. Lady now really is opening a hornet’s nest with the issue of money, how universities are motivated, and how far that is skewed. I have struggled against the narrow interpretation of learning as an entirely utilitarian matter for all my political career, including my ministerial career. As Committee members will know, I was a stout defender of adult and community learning, not because it was necessarily and directly linked to employment, but because it fed societal wellbeing. Let us make the case for the glory of learning for its own sake.

The hon. Lady provoked me into that digression, Mrs Cummins, but she is right to say that sometimes universities are driven by those utilitarian purposes, hence my point about senior management. We have recently heard about money from outside sources—China was mentioned in our witness sessions, and rightly so, given recent revelations. There are all kinds of ways in which what is taught and learnt at universities can be altered by factors that go well beyond the interests of either academics or students. I am concerned about the matters that the hon. Lady has raised, and the Government will have a watchful eye on all that, too.

I have a fundamental disagreement with Opposition Members, in that I think the Bill is welcome and a good thing. I know that they have reservations. However, I am equally sure that if the Bill is to be effective, it needs to be as well drafted as it can be. That is precisely what scrutiny is designed to do. In that respect, drawing out and codifying the distinction in some way seems to me to have value. I make no definitive judgment about how that should be done; my amendment is very much a first stab.

I should not say before the Minister has spoken that I will not press the amendment to a Division, or I will extract no concessions from her. Instead, I shall hang on, hold fire, and hear what she has to say. The amendment is very much designed to push and probe the Government, but if she says it is a complete load of nonsense, I will have to test the Committee’s view.

I feel some responsibility to reflect the fact that the amendment is one of a group. There are some very good amendments in the group, tabled by Members on both sides. I will not name them all, but amendment 48, in the name of the hon. Member for Warwick and Leamington, is helpful, and amendment 60, in the name of my hon. Friend the Member for Congleton, brings value to what we are doing. A number of strong amendments in the group are designed in a constructive way to hone and improve the Bill. I will not go through them all because that would be tedious and people can speak for themselves, but there are some good amendments worthy of further consideration by the Committee and the Government.

[Matt Western]

I thank the right hon. Gentleman for his remarks and his amendment, which has generated a huge amount of debate. It is interesting that several of us have had a go at the same provision to embellish and improve it. The definition of academic freedom is loose and hard to pin down. The fact that three amendments are addressing it emphasises how concerned we all are about how it is defined.

The right hon. Gentleman’s amendment seeks to expand academic freedom to encompass how a teacher delivers their classes. The amendment tabled by the hon. Member for Congleton goes a little further in seeking to protect academics under the umbrella of academic freedom whenever they express an opinion about the practices of a provider. I guess that this is where we get into subjective interpretations of what academic freedom should be.

During my research I came across part 6 of the UNESCO definition of academic freedom, which guides my thinking and that behind amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington. Under the UNESCO definition, the concept of academic freedom is broken down into five parts: freedom of teaching and discussion; freedom in carrying out research and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work; freedom from institutional censorship; and freedom to participate in professional or representative academic bodies.

My concern about the amendments tabled by the right hon. Gentleman and the hon. Member for Congleton is that they are trying to nail down a definition, but may have left out a couple of crucial components. Amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington, is a compromise with the position of the right hon. Gentleman and the hon. Lady. It touches on two of the most of crucial elements in providing that clarity: freely pursuing chosen topics and expressing views of their institution. Interestingly, the University and College Union favours an amendment in the realm of ours. It is also deeply concerned that narrowing the definition of academic freedom will limit the ability and willingness of education staff to speak out on wider social or political issues, or indeed against their employers. An amendment such as ours would offer expansive protection for the academic freedom of staff, including from pressure and censorship by public authorities like the Department for Education and the Office for Students or by employers.

The amendments would offer protection against redundancies targeted at particular academic disciplines or those perceived to be politically motivated.

[Emma Hardy]

My mistake, Mrs Cummins, for not realising that the amendments are grouped and that I should be talking about all of them. An aspect of academic freedom and the importance that we want the Bill to place on the role of academics is illustrated by amendment 27, tabled by the hon. Member for Congleton. We should not restrict academics with the narrow definition including:

“within their field of expertise”.

We do not know who will make the definition. That is an important issue, too.

[Matt Western]

I thank my hon. Friend and I shall address that important point shortly.

Amendment 47 would protect academics against not securing promotion in respect of different jobs in other institutions. It aims to ensure that academic freedom is protected across the range of roles that someone may hold, not simply where an issue may arise. For instance, an academic may be employed by two HE institutions or hold various visiting professorships. The amendment would ensure that an institution cannot punish an academic for disagreeing with research or published work at another institution.

This links with open, transparent career development —an honest approach. We heard from Tom Simpson that decisions on research grants and appointments are made in the culture of the office. To a certain extent, that is inevitable. That is the reality of how organisations work, but I get what he was trying to say. Amendment 48 would prevent a university from denying training opportunities. as a way to punish an academic for the views they hold. The essential difference from our amendments is that they seek to protect those who can benefit from academic freedom.

Amendment 60, tabled by the hon. Member for Congleton, on the inclusion of adverse impacts on educational progress, implies that academic freedom ought to be given to students. We had a long debate about that. I have reservations about it, and I am not convinced by the argument that was made in the previous debate. The experience that I have gleaned from discussions with higher education institutions in the past six months is that many assessment methods are anonymised. Each student is given a unique number and papers or their equivalent are marked by several academics to avoid discrimination. Institutions do their utmost to ensure that discrimination does not prevail and damage students’ progress.

For those who can and should benefit from academic freedom, I have sought to expand the definition to include innovative research. Amendment 45 would ensure that the definition of academic freedom includes the world-class innovative work carried out in our universities. The current definition in the Bill simply covers new ideas or controversial or unpopular opinions, but most of the socially or scientifically beneficial or prize work conducted by academics is innovative, rather than falling into those narrow categories. The right hon. Member for South Holland and The Deepings expanded on that point, and said that it would be valuable to include that, mentioning Galileo and Darwin, who conducted innovative research centuries. The two go hand in hand. Think about Rosalind Franklin and the ground-breaking work she did in the face of a counter-view in society about genetics; she clearly did incredibly important research. More recently, we have Oxford’s work on vaccines. That kind of work has to be protected at all costs.

One of our witnesses, Dr Ahmed, believes that certain forces are leading academics not to pursue lines of research that they think might be fruitful. Research is fundamental, and it is important to protect it. I can well understand the perspective of institutions on the work that is done and why they seek to have some sort of direction over research and teaching wherever possible. Various Members, however, spoke about how institutions present themselves in what has become an incredibly marketised sector. The institutions did not create that situation; it is the result of what was put in place years ago, and they have to respond not just to a UK market but to a global market for higher education. They are trying to appeal to the needs of the UK, what students wish to study and what research is needed, as well as looking at trends, approaches and the needs of global society.

[Emma Hardy]

I risk straying from the Bill, so I will be quick. The evidence that we heard and our discussions today show that the marketisation of higher education has had a negative impact on the student experience. I hope that the Minister takes that evidence seriously, as well as the remarks that Members on both sides of the Committee have made about the impact of marketisation on education, so that in a future Bill Committee we can secure consensus on an alternative model.

--- Later in debate ---

[Matt Western]

I thank the right hon. Gentleman for his intervention. Yes, we heard virtually all the academic witnesses and others express the importance of this point. Dr Ahmed, referring to Professor Stock, spoke about Professor Richard Dawkins, saying:

“theology is not his area of expertise. Many…would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q18.]

[Emma Hardy]

This is crucial. This small amendment would remove five words from the Bill; it is incredibly small and very easy for the Minister to agree, but incredibly important. If the Bill is what it is claimed to be—a Bill on freedom of speech and academic freedom—and if the Minister honestly believes that that is what is written here, she will accept the amendment to remove

“within their field of expertise”,

because that is a limitation on academic freedom. It is clear, and no future guidance will change it. If those words are left in the Bill, academic freedom is limited. I cannot put it any more strongly than that. All the evidence we heard made the same point. I hope the Minister will accept the amendment.

[Matt Western]

I thank my hon. Friend again for a valuable intervention.

--- Later in debate ---

[Matt Western]

I totally agree.

[Emma Hardy]

The original definition of academic freedom did not have these five additional words. The Government chose to add them. I do not believe we need to rewrite or put in words. Originally, the definition of academic freedom was:

“freedom within the law to question and test received wisdom…put forward new ideas and controversial or unpopular opinions, without placing themselves at risk”.

The Government added the unnecessary words

“and within their field of expertise”.

[Matt Western]

My hon. Friend is right. I sense that we agree across the Committee—

[Emma Hardy]

Some of us.

[Matt Western]

Some of us are agreed that it should not be in there, and I think the House of Lords should explore whether further definition is required.

From talking to academics over the last six months and more, I want to stress how incredibly fluid the areas of research they work in are. They go through wholesale change in areas of interest and exploration. That is the kind of innovative research we want, and it is one of the great things about our institutions. People talk about UK universities being the best in the world in different categories, but we genuinely do have a very strong reputation for higher education globally. It needs to be protected.

We support the amendment by the hon. Member for Congleton on the removal of those words. We will, of course, support the amendments standing in my name and that of my right hon. Friend the Member for Hayes and Harlington.

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

Debate between Emma Hardy and Matt Western

Tuesday 7th September 2021 Public Bill Committees

[Matt Western]

It does.

[Emma Hardy]

Q On that direct point—thank you for letting me come in—the Secretary of State said on Second Reading that this “legal route”, the “new statutory tort”, 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.]

However, as you have just outlined, there is no requirement in the Bill to go through the internal processes before going to the freedom of speech tsar—or whatever title they are given. Is that of concern to you?

Smita Jamdar: I think there is a restriction on going to the freedom of speech tsar; I think they are proposing that you have to go through the internal complaints procedure before you go through the OfS’s complaint process. However, I do not think there is any such restriction on going to court.

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

Debate between Emma Hardy and Matt Western

Tuesday 7th September 2021 Public Bill Committees

[Matt Western]

[Emma Hardy]