Higher Education (Freedom of Speech) Bill

John McDonnell Excerpts

Report stage
Monday 13th June 2022 Commons Chamber

[Jess Phillips]

I will absolutely come on to naming some of those institutions. As I said, this was found by Elle magazine, which is collecting this data, unlike the Government at the moment. The article said the student claimed this arrangement felt

“worse than the assault—Dealing with this abuse of power was far more traumatic. It was emotionally exhausting and humiliating.”

Earlier this year, the Express took a day off from talking about Princess Diana and its investigation revealed that more than 3,500 cases of assault were reported in 78 institutions in the UK in the last five years. The figure consists of confirmed cases of sexual violence and disclosures made by both staff and students pending investigation. The 135 freedom of information requests sent to every university in the UK also revealed that many do not record figures of sexual assaults, so the overall number is likely to be much higher. So it is, “Just don’t record it and then it doesn’t happen.”

In 2020, a BBC investigation found that over 300 NDAs were used by universities in student complaints between 2016 and 2020, and that almost a third of all universities in England had used such deals in these circumstances. The probe discovered that universities had paid out £1.3 million on these deals, although the true scale is thought to be much larger. The campaign Can’t Buy My Silence was started by the brilliant and formidable Zelda Perkins, once an assistant to Harvey Weinstein and someone who had an NDA imposed on her related to his crimes, and Professor Julie Macfarlane. Their campaign has survivors’ testimony reporting that NDAs had gagged them from speaking of their experiences with family or loved ones, or even their therapists. I pay tribute to them and the work they are doing alongside the Minister, whom I know speaks to them. However, like me, they agree that legislation is necessary to tackle this.

So far, 66 universities have signed the Government’s pledge. I made this speech on Second Reading and since then the Government added “looking at non-disclosure agreements” into the violence against women and girls strategy, which was published late at the end of last year. I stand here in complete respect for the Minister. She has sought to do what she can to improve the situation. She has worked with the campaigns that I have talked about to get universities signing pledges. She is working with the Office for Students to look at regulation and at what needs to happen if these things are breached. Every Member of Parliament will have had to try to get a regulator to do something about their bad cases, and we are here with universities signing “pledges”. I do not know how we are going to know whether they are breaking their pledge if people have been gagged.

So far, 66 universities have signed the Government’s pledge. That is great, but why haven’t the others? I encourage every university to do this. There are over 130 universities in the UK. What about those students? What about their right to speak out? As the hon. Member for Rutland and Melton (Alicia Kearns) pointed out, she would want to hear about this. I am not going to list all the universities that have not signed it, but here are some: the University of Cambridge, King’s College London, the London School of Economics, the University of Wolverhampton and the University of Sunderland. That is just to name a few. Perhaps it is taking time and perhaps they are getting around to it. I very much encourage them to do it.

Just to show the House what I am talking about, I have an example here of one of these NDAs. This is the kind of thing that students are asked to do. It is not necessarily called a non-disclosure agreement, and that is a way out of this; the right hon. Member for Basingstoke (Dame Maria Miller) and I often challenge organisations when they say they do not have NDAs, because we have them in our inboxes and they call them something else. They will call them a “confidentiality agreement”. In lots of cases in universities we have seen the growth of “no contact arrangements”.

I will read this agreement out—this is from the university. It says, “We recognise the sensitive nature of the allegation involved. In consideration of our duty of care to both parties, we have therefore concluded that in the interest of both parties a non-contact arrangement is required.” This young woman who had been raped was told, exactly as the person accused of raping her was told, that she had to stay out of certain places; she could not go to certain things at certain times. She was told that she, “Is not to enter the building”, that her, “Fob access will be disabled” and that she is, “Not to enter the building unless for tutorials and classes notified in advance.” She is told, “Fob access will be disabled unless we have had advance notification”—this is a rape victim being told that she has to report to a guard so that she can go to her classes. She is also told, “You are asked not to make any information about these allegations, the police investigation or the safeguarding arrangements that we have made available on any form of public media”—so she should not talk about this document. Finally, she is told, “Evidence of repeated breaches of this arrangement and/or a serious breach of conditions—entering an embargoed building or publishing material in the press—will result in your expulsion.” That is from one of the finest universities in the world.

This is about people’s silence, but not just their silence; it is about their movement, their freedom and every element of their freedom of expression being stopped. Yet there is nothing in the Bill about freedom of speech, freedom of expression or freedom to study. There is nothing that the Government are proposing to do or to put in legislation. I simply do not understand why they would not have taken this opportunity to do something.

I met the Minister last week and, as I said, I do not doubt her total and utter commitment. Incidentally, she said earlier that “legislation of this nature can spur culture change.” Yet she told me last week that legislation is not always the answer—[Interruption.] I will take the intervention, by all means. No? Okay. She also explained to me that the Office for Students is looking at regulation to, for example, take away the status of a university if it is guilty of a breach. I responded—and I say again—that the idea that a rape victim who has signed a non-disclosure agreement will take down Cambridge University is the stuff of cinematic hopeful glory. I will believe that when I see it, which everybody in this building knows will be never. Why would we want to push universities and victims into that position? Why would we not legislate to stop the use of non-disclosure agreements?

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

I do not want to spoil the flow of my hon. Friend’s incredibly eloquent speech, but non-disclosure agreements not only apply to students but are used extensively with staff. When we have discussed this issue before, the argument has been that there is sufficient employment law to deal with these matters. There clearly is not, because it does not reflect the balance of forces between employer and employee and the delays that take place. Surely we must legislate to scrap NDAs altogether, and the first step could be the inclusion of my hon. Friend’s amendment in the Bill.

[Jess Phillips]

I absolutely agree, and the amendment clearly covers staff being able to talk about their experiences. The Minister cited a member of staff who felt compelled to leave their employment because of what the Minister rightly pointed out was bullying. Had that member of staff signed a non-disclosure agreement, the Minister would never have been able to talk about them, and nor would that particular employee of that particular university. We would not even know what had happened. Had a non-disclosure agreement been signed in that case, which was, I believe, at the University of Sussex, the Minister would not have had her helpful example.

I took part in a debate on the television the other day about freedom of speech. A Government Member of Parliament, who I like and respect, turned to me and said, “The thing is, Jess, that no one can be forced to sign a non-disclosure agreement”—I just said my own name. Is that allowed? I don’t have to refer to myself as the hon. Member for Birmingham, Yardley?

--- Later in debate ---

[Michelle Donelan]

My right hon. Friend is correct. As I said, some universities have misinterpreted the Equality Act, which is why comprehensive guidance will be produced by the new director that will be the main source that they should refer to, rather than external agencies.

[John McDonnell]

On the point about advice, we are dealing with what has obviously become a contentious issue that often relies on subjective judgments. The advice that universities will take will come from the director for freedom of speech and academic freedom. Does it not behove the House to ensure that that person has the absolute confidence of those universities? New clause 4 simply says that that person will not be associated with a political party and will be appointed by an independent panel, and that a Select Committee will have a role in confirming that appointment. That will hopefully take the director who provides such sensitive advice out of the political melee and give universities more confidence in them.

[Michelle Donelan]

If the right hon. Gentleman will allow me, I will get to that point later; he may intervene again if he is not satisfied with the response.

Amendment 18 would require the Office for Students, when considering a complaint, to be mindful of the right of students to feel safe on campus, and of other legal duties such as those under the Equality Act 2010 and the Prevent duty. But the duty in the Bill to take “reasonably practicable” steps to secure freedom of speech and academic freedom will allow for relevant considerations to be taken into account. In particular, it will allow for other legal duties, such as those under the Equality Act and the Prevent duty, to be considered.

“Reasonably practicable” is a commonly understood term used across the statute book. It means that the relevant body can take into account all the other legal duties on a case by case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that. As for the Office for Students, it will be required to take into account all the relevant facts. It would not be appropriate to try to set out all the considerations that it should take into account, so the Government do not support the amendment.

New clause 4 concerns the appointment of the director for freedom of speech and academic freedom to the board of the Office for Students. It relates to the appointee giving a donation to a political party, and it would require the appointment to be made by an independent advisory panel. We have in this country a robust public appointments process that, rightly, does not bar people who are members of political parties from serving in such roles.

The Commissioner for Public Appointments sets out that every year numerous public appointments are made of individuals who declare political activity, and in many years more appointees have declared an affiliation to the Labour party than to the Conservative party. This rule is such that, if applied generally, it would have prevented individuals such as Alan Milburn, Baroness Falkner and John Cope from serving.

On who will appoint the director, this will be carried out in the same way that the other members of the Office for Students board are appointed under the Higher Education and Research Act 2017—by the Secretary of State—and this will of course be done in accordance with the public appointments process. It would not be consistent to treat the director under this Bill differently. The Government therefore do not support this amendment.

[John McDonnell]

As this now goes to the other place, could I just ask the Minister to think again on that particular issue? This is an incredibly contentious area, and it requires someone who is above any form of suspicion of party political linkages. More importantly, it requires someone who has the confidence of an independent panel, but also, I believe, of one of our Select Committees. I urge her to think again, at least about the appointments process and the engagement of a confirmatory vote by a Select Committee on this critically important post, which I think is so important that the legislation will stand or fall on this appointment.

[Michelle Donelan]

I am a little taken aback by the comments of the right hon. Member, who refers to the relationship between political parties as suspicious—quite something given that we are all related to political parties. The Government will not be thinking again on that one.

New clause 5 would introduce a sunset clause, meaning that unless a report is made to Parliament and regulations are made, the legislation would expire three years after the date of enactment, and it would give Ministers the power to discontinue provisions in the Bill after one year. The fact that the Opposition have tabled this amendment demonstrates very clearly that, whatever they say, Labour Members do not support free speech. They have consistently opposed the need for this Bill despite the very clear evidence, and they now are seeking to dismantle it before it has even started. The Government wholeheartedly oppose this amendment, and we will never falter in our determination to safeguard free speech.

With the assurances I have given, I hope Members will not press their amendments to a vote, and I commend this Bill to the House.

Question put and agreed to.

New clause 2 accordingly read a Second time, and added to the Bill.

New Clause 4

Appointment of the Director for Freedom of Speech and Academic Freedom

“(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”—(Matt Western.)

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

Brought up, and read the First time.

Question put, That the clause be read a Second time.