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

John McDonnell Excerpts

Monday 20th September 2021 Public Bill Committees

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I am an honorary fellow at Birkbeck College, University of London.

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

The same.

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

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

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[Michelle Donelan]

There will be a variety of options available. Going to the director will be the free option and the first instance, but we cannot mandate that they have to have gone through the internal processes of an institution, because those will not be available to everybody that the Bill seeks to represent.

For example, this clause will provide a means of redress for individuals who do not have employment protections, such as visiting fellows—the point I was making earlier. Let us bear in mind that the purpose of the tort is to bolster the enforcement of the new freedom of speech duties on higher education providers and student unions, so that there are clear consequences for those who breach those duties.

The clause will ensure a clear route to individual redress for all who have suffered loss where freedom of speech duties have been breached, and will give those duties real teeth. This is therefore a vital part of the Bill, as part of a suite of measures to strengthen free speech in higher education.

[John McDonnell]

Will the Minister give way?

[Michelle Donelan]

I am afraid I am going to end there, and give the right hon. Gentleman an opportunity after that.

[Matt Western]

I was not expecting to speak so soon; I thought the Minister might speak at greater length on this.

[John McDonnell]

May I ask my hon. Friend the same question, then, and maybe the Minister can intervene on him?

[Matt Western]

I would love to hear from my right hon. Friend.

[John McDonnell]

I want to know who has standing in this matter. In my hon. Friend’s interpretation, is it the same person or people who have standing in the complaints process, or is it anybody? I might have got this wrong, but I cannot identify the breadth or narrowness of who has standing in these cases.

[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.

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[Matt Western]

I absolutely take on board the hon. Lady’s point. I can answer her question honestly, and say that I have been involved in litigation at least once. I agree that young people would not enter into it lightly, and nor would academics of older years. It can be utterly corrosive to the individual and quite self-destructive; it is the sort of thing that people would want to avoid. My point is that some people will, through organisations, seek to engineer circumstances that play into their machinations on campus. We have to be extremely careful of that, because those people can be incredibly well-funded, as was made clear in the point I mentioned earlier.

[John McDonnell]

I am sympathetic to what the hon. Member for Congleton has said. However, we have been there in the past, with organisations and rich individuals funding cases. I can remember cases being funded by the late Sir James Goldsmith—I was involved in one—in which action was taken against a range of individuals and organisations, to step up to the plate on a number of issues of his concern which, at the end of the day, I do not believe had any merit. His son is a definite improvement on that, if nothing else.

[Matt Western]

Yes, that is a good example of what can happen where individuals or organisations are so well funded. It can be really overwhelming and frightening to an individual or organisation when they are faced with that. Universities will be extremely concerned about this. Local government is shying away from taking on developers or other organisations because it does not have the funds. It cannot justify to the public defending whatever position it has had to take for good, democratic reason. However, it then finds itself up against it because the developers have much deeper pockets.

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I am deeply against the clause. I beg the Minister to consider the amendments, just to make sure there are safeguards so that this cannot go mad—I should not say “mad”—or blow up in our faces. If she is determined about the tort, there are safeguards she can put in, but I genuinely think there are significant things under the current regulations. If she wants, she could include the ability for the Office for Students and the adjudicator for free speech to have greater fining powers when institutions go via that route, so there could be a financial penalty, but the penalties would be seen in a one-track process without ambulance-chasing lawyers after them.

[John McDonnell]

The arguments have been cogently made by my hon. Friend the Member for Brighton, Kemptown. I have one simple question. Clause 3 states:

“A person may bring civil proceedings against”,

but who is that person? Who has standing in this? The schedule, which sets out the complaints scheme, it is very specific about who has standing in paragraphs 1, 2 and 3, and in paragraph 4 to a certain extent. It designates that an eligible person means,

“a person who is or was…a member or member of staff of the students’ union, or…a student, member or member of staff of the provider, or…a person who was, or was at any time invited to be, a visiting speaker.”

That is not set out in clause 3. I might have misread it; perhaps it is written down somewhere, but I cannot find it in the legislation at all.

If there was a link between the appeals process as a process that was exhausted and then an individual went on to the tort, they would probably be able to rely on the definitions set out in the schedule, but at the moment there is no definition at all. That is why I ask the question. I am not being obstreperous. I simply cannot find it in the Bill.

I will give an example. If I buy a ticket to attend a lecture or speech that is then cancelled, am I a person who is eligible to bring civil proceedings as a result of the damage—no matter how slight—caused to me by not hearing that person? Do I have standing? Can I sue the provider, the student union, or whatever? I just want clarity on that. Whenever we introduce a tort, it is a bit like that American baseball film—“If you build it, they will come.” If we create a tort, the lawyers will come, as will other organisations that wish to make money, or in some way frustrate the process of trying to secure freedom of speech, The clause as it stands could be counterproductive.

I want to make a simple point. People volunteer to be elected to student unions, and the president, vice-president and those on the executive committee are the ones who usually have the political fight to get on there. It is largely around the nature of the students and what activities they want to pursue. However, there are some people who altruistically become the trustees. It is completely altruistic and goes beyond making a political point by standing for president or to be on the executive committee.

What worries me is that, as soon as we get into litigation like this, the student body does not have the resources to settle the claim. One way around that is expensive insurance, but even that might be beyond some of these bodies. I am fearful of it then falling onto the shoulders of those trustees, who could incur quite significant financial costs. Even the fear of that may well prevent people coming forward as trustees. By inserting this into the legislation, we are building a dark hole for people to fall into, and I think it could cause considerable problems.

I do not understand why we cannot rely upon the complaints procedure set out in new schedule 6A of the Higher Education and Research Act 2017. If that does not, as the Minister says, cover visiting speakers and such, I do not understand why can we not amend the schedule to make it all-encompassing?This is abysmal legislation, and here we are—the Opposition—virtually rewriting it for the Government. I suppose we are trying to mitigate the damage that will be done if it passes the whole House unamended. If we are going to legislate in this way, let us at least not undermine the ability of young people to participate in the structures that actually do develop their concept of what democracy is all about.

That is what we are doing here, I think. We are putting large numbers of people at risk, and if they are not at risk, we are putting them off participating in bodies that perform a service, not just for students but wider society.

Question proposed, That the clause, as amended, stand part of the Bill.