Higher Education (Freedom of Speech) Bill

Jeremy Corbyn Excerpts

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[Matt Western]

I thank my hon. Friend for his important intervention. He is absolutely right, and he and many others on our side made that point repeatedly in Committee about the unintended consequences of the Bill, which would have a chilling effect. Those are the thoughts of Lord Willetts and many others in the House of Lords as well, who made it clear that that would be the result, particularly among smaller institutions, that may be less familiar to certain Members across the House, which do not have the resource or capacity to be able to administer these measures.

Ministers are choosing to ignore the widespread condemnation of the tort from Members in this place, Lords, sector representative bodies, students, trade unions and academics. They are seemingly prepared to carry on regardless. As recognised by so many, the tort is a clause primarily in search of a problem, but perhaps that is the point for Ministers. It is otiose; that is to say it serves no practical purpose or result.

Put simply, the objections to the tort raised in the other place are damning. I am well aware that this Government do not value expertise or experts, but, my God, they should. Their predisposition towards certain right-wing think-tanks has cost this country dear, and in terms of legal matters, or indeed the tertiary education landscape, the intellectual heavyweights in the other place, comprised of former vice-chancellors, current chancellors, former Supreme Court justices, ex-Masters of the Rolls and many former Education Secretaries and universities Ministers, have a brain quotient that is certainly higher than two. Their collective experience dwarfs that of the current Education team, and for that matter my own experience. It is for that reason that I take very seriously the warnings and advice given by peers in the other place, and, importantly, not just from one party but from across the House. There is perhaps no other clause in the Bill that provokes such widespread condemnation as clause 4, allowing individuals and groups to sue universities for losses resulting from a university or student union failure to secure their free speech duties.

Speaking of brains, Lord Willetts, a former Minister for higher education, believes that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble. In other words, the prospect of vexatious litigation will have unintended consequences.

Lord Grabiner, an eminent jurist, went further and feared that the clause could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That may all be well and good for well-funded free speech litigators, perhaps with the unlimited support of the Free Speech Union, but for small institutions and higher education providers in particular, it will be crippling. He poses the question we all want the answer to:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 210.]

Perhaps the Minister can give us a satisfactory answer today.

Even if we agree with the principle of the statutory tort, it is totally unworkable in its current form. The ex-Master of the Rolls, Lord Etherton, identified two glaring deficiencies in the tort as it stands. First, it is not clear what level of loss or damage is required for a successful claim. Secondly, it is also not clear what category of persons is entitled to make a claim. Lord Etherton concluded that

“it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.” —[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 706.]

That leaves the tort as both undesirable and unworkable.

As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counter- productive, as I was saying a moment ago. The Russell Group has reiterated its warning that:

“Managing the potential for litigation would…likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.”

In other words, we could have the worst of both worlds: no liberalising effect on free speech on campus, but with all the associated costs of legal action.

One student union I heard from recently informed me that there is currently no budget allocated for paying for legal action. Legal advice would need to be paid for out of its reserves. To make matters worse, it claimed that it would also be impossible or difficult to obtain insurance for such legal action. In a sense, therefore, student unions will be doubly bound, being required to build up large enough reserves in preparation for fighting such lawsuits, while also having to engage in expensive legal battles. Using that money will inevitably detract from student welfare budgets, SU facilities and the much-valued nature of campus culture. I return, once again, to the ever-prescient question posed by Lord Grabiner in Committee in the Lords:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”

[Jeremy Corbyn (Islington North) (Ind)]

My hon. Friend is making an excellent contribution to this debate. Does he agree that the problem is that this will diminish the campus experience and the quality of university life for many students, and that those who can afford to relocate their activities to expensive private locations outside campus will do exactly that, while the rest will essentially be in fear of legal action and will therefore not be ensuring that there is a challenging intellectual environment on all our campuses and in all our universities, as ought to be the case?

[Matt Western]

I thank my right hon. Friend for his intervention. He is absolutely right that these sorts of events could go underground, with restricted access, and, because they will be displaced off campus, they will be beyond universities’ jurisdiction.

I could go on and on about the issues with the tort, but lords from across the House of Lords made them absolutely clear. Consistently attacked from numerous angles, from numerous sources and for numerous months, the Bill has taken two years just to get to this stage. It is flawed in so many ways, although that increasingly seems to be the hallmark of this Government. Even the Minister in the Lords, Earl Howe, was prepared to concede on making the tort a remedy of last resort and limiting it to those who have suffered a loss. In what is perhaps the shoddiest part of the Bill’s progress so far, the Minister before us is now asking us to disregard her own counterpart’s suggestions for improvement in the other place, in the light of no new evidence. If it did not have such potentially damaging consequences for students and universities, it would be ludicrous. It is for the reasons I have just outlined that Labour will oppose the inclusion of this undesirable, unworkable and counterproductive tort in the Bill in the interests of students, staff and even freedom of speech itself.

--- Later in debate ---

[Layla Moran]

I rise to speak in support of Lords amendment 3. I am frankly delighted that it has received Government support. It will do what I and others across the House have for some time been calling for, which is to ban the use of non-disclosure agreements by universities in cases of sexual harassment, sexual abuse, bullying and other forms of misconduct.

I thank everyone who has worked on the campaign. I thank Lord Collins for tabling the amendment; the right hon. Member for Basingstoke (Dame Maria Miller) and the hon. Member for Birmingham, Yardley (Jess Phillips), who have campaigned with me; and Zelda Perkins and Can’t Buy My Silence for their tireless campaigning over the years. More importantly, I want to thank the young women, particularly Ffion from the University of Oxford and everyone involved in the campaign It Happens Here—those brave survivors who have spoken out about their experiences.

My involvement began as the constituency MP for some of those young women, who first came to me in 2018 with shocking testimony about gagging clauses being included in agreements signed in the wake of an instance of sexual assault. One woman had to sign not an NDA—this is a critical point—but a no-contact agreement that prevented her assaulter from having access to her accommodation, among other safety measures. That agreement, which was meant for her safety, included a clause that prevented her from making any information public about the assault, or indeed about the investigation. It was so poorly explained that she took it to mean that she could not even speak to her GP.

[Jeremy Corbyn]

The hon. Member is making an excellent point. When the woman raised those issues with the university, how did it possibly defend the idea that it would offer such protection to somebody who had clearly been found molesting other students, harassing them or worse?

[Layla Moran]

I have since spoken to a number of heads and principals of colleges. Many are not defending such behaviour; they are often coming from a place of wanting to try to protect both students—it is often another student who is involved. It comes from a good place, but the consequence is frankly devastating. That is why Lords amendment 3 is so necessary.

The other element that needs to be improved in most colleges and universities is the complaints process itself, which is deeply flawed. All it does is cause young women —and those who have spoken to me have invariably been young women—to feel retraumatised as a result of the process that they have had to undergo. Because the safety measures were included, this particular young woman felt forced to sign the agreement. She was therefore silenced by a process that was supposed to protect her. Other students have told me similar stories. One said that the gagging clause

“felt like the icing on the cake of a ridiculous system that had let us down. The disciplinary process had failed to sanction a rapist, but was threatening us with sanctions if we talked about it.”

How on earth can that be right?

The pledge launched by the campaign group Can’t Buy My Silence, in conjunction with the Department for Education, was certainly welcome—76 universities have signed it so far, committing themselves to ending the use of NDAs in cases of this kind—but, like other campaigners, I feared that it did not go far enough. It was particularly concerning that there were no sanctions for breaking the pledge, and it was largely dependent on universities’ opting in. Oxford’s It Happens Here—Oxford is the university with which I have been dealing with the most—has noted which Oxbridge colleges have signed it. The Minister may be shocked, as I was, to learn that there are only four, three at Oxford and just one at Cambridge: three out of 44 colleges and one out of 33. Moreover, that is replicated in institutions throughout the country. The take-up of the pledge has been poor, which is why we needed the Government to step in with this legislation. However, I hope other Members agree with me that this should not apply only to universities, because the same thing is happening in workplaces all over the country, including charities and voluntary organisations.

This is, I hope, the start of something much bigger. Last year I tabled a private Member’s Bill which would ban the use of NDAs and confidentiality agreements by any organisation or institution in cases of sexual assault, harassment and bullying. We are looking for a vehicle with which to bring the whole shebang back; the Victims Bill may be one, but we are looking for others. My Bill —which I recommend the Minister to push to other Departments that have not quite got there yet—is modelled on legislation that has already been passed in Prince Edward Island in Canada. A similar Bill is making its way through the Irish Senate, and the Speak Out Act was passed in the United States in November, so we would be very much in line with similar countries.

I am of course pleased that the Government are now supporting this move in the context of universities, but I want to ask the Minister some specific questions. First, does it apply only to legally drafted non-disclosure agreements, or will it also cover no-contact agreements in the confidentiality and gagging clauses? It is worth pointing out that those are already non-binding legally, and would not pass muster if they were brought to court. By what mechanism can we ensure that these things will definitely no longer happen? For survivors, a gagging clause has just as much impact as any legally binding non-disclosure agreement. We know that such clauses have become boilerplate language in no-contact agreements between a survivor and perpetrator, and we must ensure that new legislation clamps down on this extremely harmful practice. Silence cannot be a condition for safety.

I would also like some clarification of the Department’s plans for implementing these measures—and, in particular, the timeline—and of how the legislation will affect existing NDAs that have already been signed by students. Will it be retrospective, or will it apply only to future agreements? The message to universities is clear, but these are specific questions that I am being asked by young women who have already signed these agreements.

The survivors who have spoken to me are being taught that their pain and their voice do not matter, and that the reputation of an institution is more worthy of protection that they are. We should be taking—and are taking—all possible steps, and wasting no time, to stop this happening. We all know that there is a difference between the time when an amendment is passed and the time when it is enacted. I urge the Minister please to pass and enact this quickly.

Finally, please will the Government back my private Member’s Bill? It is a Bill that mimics a Conservative party pledge in, I think, 2017. There is cross-party support for this across the House and it is now time to ban these non-disclosure agreements, not just in universities but in any workplace and, frankly, anywhere.

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Any weakening of the Bill’s provisions will send a message to its critics that those who see it as their business to police what others think and say have won. The solution is the actionable tool at the core of the Bill—one that establishes a routine response for every David against all the Goliaths. It is a shield for those who are determined that their universities should remain places where ideas are discussed freely; a sword to be wielded against those who aim to snuff out the light of free speech, free study and free thought. They must know that the darkness that they seek to bring to our universities is going to come to an end, and that this Minister will carry that torch—that light—as the Bill becomes law.

[Jeremy Corbyn]

I could not disagree more with the right hon. Member for South Holland and The Deepings (Sir John Hayes)—[Interruption.] It is not the first time—I understand that—and possibly not the last. The effect of the Government’s proposal to disagree with the Lords amendment will be what he spoke about: a diminishing of academic experience and variety of activities in campus life.

We have heard well-informed contributions from the hon. Member for Oxford West and Abingdon (Layla Moran) and my hon. Friends the Members for Brighton, Kemptown (Lloyd Russell-Moyle) and for Sheffield Central (Paul Blomfield), all of whom have direct experience of what goes on in their local universities and other universities. The fear of legal action will cause a chilling effect on societies, organisations and part of the student union when inviting speakers. That is surely a bad thing.

Is it not the principle of going to university that a person—usually a young person—gains the experience of a wider academic, intellectual environment? As the hon. Member for Penistone and Stocksbridge (Miriam Cates) pointed out, there have been many controversial debates on university campuses over a very long time. I do not have a university degree—I did not graduate—so I do not know what that experience is like, but I do visit many universities and speak at them often, and I find that the challenging debate changes over the years.

In the ’70s, raising the issue of climate change was seen as wacky—it was way out there; something that people would not even think about—but gradually, over the next decade or so, the idea that what we were doing to the environment was seriously damaging to life on this planet gained traction, more debate happened, and so on. Those speakers were probably deeply controversial at the time. Now, it is the other way around.

[Lia Nici]

rose—

[Jeremy Corbyn]

I will come to the hon. Lady in a second. Now, the climate change deniers are seen as controversial in the same way. Although I have a view of my own, I am quite happy to listen to both sides, and I think that students should and must have that right and experience.

[Miriam Cates]

Will the right hon. Gentleman give way?

[Jeremy Corbyn]

I think the hon. Member for Great Grimsby (Lia Nici) asked first. I am a bit worried about this debate getting too excited. I know that you want to bring it to a conclusion very soon, Madam Deputy Speaker, so I will be brief.

[Lia Nici]

I have experience in universities, having been in education for 22 years and taught for three different universities. On the right hon. Gentleman’s example of climate change in the 1970s, is the difference not that the people who were debating it were not cancelled as people are being today?

[Jeremy Corbyn]

I am pretty sure there were people who tried to cancel them at the time. I was not at university and I cannot make any further comment on that.

My plea is simple. We have heard today from Members who have a lot of sensible and direct experience. The issues raised by the hon. Member for Sheffield Central are very important, including that of freedom of speech and the limits placed on it. At what point do we allow a fascist, a Nazi, to speak? At what point do we allow a holocaust denier to speak? Those issues are best dealt with by codes of practice, rather than by threats of legal action. Surely codes of practice in colleges and universities, and discussion and debate, bring about a better resolution than enabling those who can afford it to take legal action.

Student unions that are frightened and nervous about any action that might be taken against them simply go down the road of caution and reduce, limit and inhibit the student experience. Surely we want our young people to be brought up listening to and developing challenging ideas, and being inventive and creative. Surely that is what education should be about, not the straitjacket of being told what to think, what to say and what to know. It has to be that approach—[Interruption.] The right hon. Member for South Holland and The Deepings is waving his arms around. I am concerned.

[Sir John Hayes]

We think that, too. That is the very purpose of the Bill—to open minds, to open debate, to have free speech. We believe in what the right hon. Gentleman is articulating, so perhaps he should vote with us tonight.

[Jeremy Corbyn]

I am sorry to disappoint the right hon. Gentleman, but I cannot vote with him tonight because I think the Bill will have the opposite effect. I wish it were the other way around, but it is not. We should recognise that the Lords amendment is a good one. It would make the academic experience better, not worse, and it would be a good idea if, for once, we supported it.