Higher Education (Freedom of Speech) Bill

Debate between John McDonnell and Michelle Donelan

Report stage
Monday 13th June 2022 Commons Chamber

[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.

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

Debate between John McDonnell and Michelle Donelan

Wednesday 22nd September 2021 Public Bill Committees

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

I put my name to the new clause as a point of principle, because I believe that we accumulate legislation—it builds up—but we never really review it properly to see whether it is effective enough and whether it needs proper amendment. This is basically a pragmatic administrative clause that, as my hon. Friend said, appears in many pieces of legislation.

I do not believe the Bill is necessary in this form—I think other actions should be taken—but if we are to pass legislation such as this, an awful lot of the issues will be addressed by regulation and guidance. The new clause gives the opportunity for a review within three years to see whether the legislation as a whole is working effectively, which parts of if are working effectively, and which parts are not and need to be dropped or amended. It is a straightforward administrative mechanism that I believe should be contained in most legislation, to prevent the pile-up of unnecessary burdens.

[Michelle Donelan]

As we have heard, new clause 3 would require the Secretary of State to invite a Select Committee of the House of Commons to review the effectiveness of the provisions of the Bill at least once a year, whereas new clause 6 would make the Bill subject to a sunset clause, so it would expire three years after the date of enactment unless a report is made to Parliament and regulations are made to renew the Act. It would also Ministers to remove provisions of the Bill one year after enactment if they are not working as intended.

On new clause 3, I can assure Members that the Department for Education will work with the sector to ensure that the measures are properly implemented, and we will review the legislation in the usual way with a post-implementation review. There are also provisions in the Bill as drafted that will help to measure its effectiveness once it comes into force.

Clause 4 provides that the Secretary of State may require the Office for Students to report on freedom of speech and academic freedom matters in its annual report or a special report. The report must be laid before Parliament, so that Parliament and the sector can scrutinise it. Equally, paragraph 12 of new schedule 6A to the 2017 Act and clause 7 of the Bill provide that the Secretary of State may request the OfS to conduct a review of the complaints scheme or its operation, and to report on the results. We therefore do not think it necessary to add yet more provision in the Bill to include a requirement for a Select Committee to conduct an annual review of the effectiveness of the Bill. It is worth noting that the current freedom of speech duties in section 43 of the Education (No. 2) Act 1986 do not have such a requirement, and nor does the Higher Education and Research Act 2017, which is being amended by the Bill, so there is no precedent in this context.

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

Debate between John McDonnell and Michelle Donelan

Wednesday 22nd September 2021 Public Bill Committees

[John McDonnell]

It would be helpful if we got on the record from the Minister the process that the Government envisage the director undertaking. I agree with the right hon. Gentleman that it is not an either/or, but let us make that explicit on the face of the Bill. If we can get a statement from the Minister to that effect, I will be happy.

I use the example of a parking ticket, but even with a speeding fine—I admit nothing—there is the offer of going on a course to address speeding behaviour. We are not even building that into the Bill. I would welcome the Minister making a statement that she expects the director to undertake that process of engagement, mediation and warning before arriving at a sanction, which could be counterproductive to that process of engagement.

[Michelle Donelan]

Amendment 38 seeks to ensure that a complaint cannot be made to the new OfS complaints scheme if a complaint relating to the same subject matter is being or has been dealt with by the OIA. Proposed new schedule 6A to the Higher Education and Research Act 2017 enables the OfS to design the scheme. We expect it to provide that a free speech complaint is not to be referred to the OfS if a complaint relating to the same subject matter is being or has been dealt with under the student complaints scheme of the OfS. This is stated in sub-paragraph (2)(d) of paragraph 5 of schedule 6A to the Higher Education and Research Act 2017. I hope that reassures Members that this provision is already present in the Bill.

Amendment 39 seeks to set out on the face of the Bill that the OfS will have to consider the other legal duties placed on a higher education providers and student unions when making their decisions under the complaints scheme. Under clause 7, we fully expect the OfS to make a decision under the new complaints scheme as to whether an individual has suffered adverse consequences as a result of a breach of freedom of speech duties set out in proposed new sections A1 and A4 of the 2017 Act, as found in clauses 1 and 2 respectively. Those provisions are clear that the duty is to take “reasonably practicable” steps to secure freedom of speech.

The Bill does not say that the freedom of speech duties override other duties, and so it must be read consistently with other legislation. Let me be clear also that it would not be reasonably practicable for a provider or student union to act in a way that meant it was in breach of its other legal duties. Accordingly, when the OfS considers whether there has been a breach of freedom of speech duties, it will already have to consider all the circumstances, including other legal duties on the provider or the student union. I am grateful to be able to clarify this important point, and I hope that that reassures Members that the Bill does not override existing legal duties set out in the Equality Act 2010 or those under the Prevent duty.

Amendment 40 seeks to provide that when the OfS finds a complaint to be justified, it can issue guidance or a warning, not just a recommendation. Amendment 41 would require the OfS to take into account the seriousness of the complaint, as well as whether the provider or student union had repeatedly breached the freedom of speech duties. Paragraph 7(1) of proposed new schedule 6A to the Higher Education and Research Act 2017, as set out in clause 7, provides that the OfS “may make a recommendation” to a provider or student union where it considers a complaint to be wholly or partially justified. “Recommendation” is defined in paragraph 7(3) as a recommendation

“to do anything specified…or…to refrain from doing anything specified”,

and it may include a recommendation for the payment of compensation. To be clear, the OfS is not required to recommend the payment of compensation as part of its decision. However, where an individual has suffered adverse consequences as a result of the breach of these duties, it may be appropriate to do so.

In respect of the aims of amendment 40, the current drafting of the Bill gives the OfS sufficient flexibility to recommend to the provider or the student union that it should review its internal processes to ensure that they are fit for purpose, or that it should provide additional training to staff members. The OfS does not have to introduce penalties. A recommendation can cover any aspect that is relevant to the complaint, and in that sense it could be considered similar to providing guidance, or indeed a warning, on compliance with the freedom of speech duties in the future.

On amendment 41, as a matter of good decision making and the principles of public law, the OfS will need to take into account all relevant considerations when making decisions on complaints. This means that issues such as the seriousness of the complaint, and whether the provider or student union was repeatedly at fault, can be considered. The Bill provides for the OfS to set up the complaints scheme. The scheme must include certain provisions and may include others, as set out in the Bill. The OfS will be responsible for developing the finer detail of the scheme, and the Government expect that that will be done in thorough consultation with the sector and wider stakeholders.

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[John McDonnell]

In my view, this issue will evolve over time. Some of the issues that are contentious today may not be in the future, and some issues that we cannot foresee at the moment may well become contentious. On that basis, the director is going to be in a difficult position unless there is a strong network of advice provided to him or her. Amendment 78 would establish in the Bill the independence of that advice and the inclusiveness of the range of bodies from which the director will receive advice. As I have said, this is a bad Bill, but if it is going to go through, this provision would give confidence to those who implement or respond to the legislation.

In some ways, I feel for the director, because their position is vulnerable and they could be the butt of a lot of contentious debates. Having an advisory body provides a buffer—protection for that individual against being targeted in relation to key decisions. It is much better for the director to arrive at a decision having consulted a range of independent bodies. I am convinced that there will be an element of consensus about the implementation of most of the legislation, but when it comes to this issue, one needs advice from those at the coalface who are dealing with this on a day-to-day basis. Amendment 78 would make that possible.

I am sure that, as the Minister has said, the director will want to engage in those discussions. However, including in the Bill this provision for a more formal body, the independence of which is guaranteed in legislation, would strengthen the advice and therefore give the director much more authority. The amendment is designed to enable the whole system to evolve over time in response to the challenges that emerge. Some issues relating to freedom of speech that we would not even have discussed 10, 15 or 20 years ago have evolved into contentious matters. The only people who can advise us on that are those who deliver the legislation.

Most of the witnesses did not want their role to be simply that of a one-off witness to the Committee; they had an ongoing interest, and they wanted to continue to engage through their professional bodies or institutions. Amendment would 78 give them the opportunity to do so with guaranteed independence and an element of authority, working alongside the director. I see the amendment as constructive, and I hope the Government will take it on board.

[Michelle Donelan]

As we have heard, amendment 78 and new clause 7 seek to introduce an advisory board to work with the new director for freedom of speech and academic freedom and to advise the Office for Students on the operation of the Bill when it is enacted. Clause 8 provides that the director for freedom of speech and academic freedom will be responsible for overseeing the performance of the OfS free speech functions, including the monitoring and enforcement of free speech registration conditions, the new student union duties and the new complaints scheme.

As part of those responsibilities, the director will be responsible for reporting to the other members of the OfS on their performance of the OfS free speech functions. This reflects a similar provision in schedule 1 of the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to other members of the OfS on the performance of OfS access and participation functions.

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

Debate between John McDonnell and Michelle Donelan

Monday 20th September 2021 Public Bill Committees

[John McDonnell]

That is what generated my question. Why are the Government targeting young people in this way? It would not take much for the Minister to go away and to come back and give the House an indication, at least before Report, of the types and level of sanctions the Government are considering. When the Bill goes to the other place, there will be some insistence on that.

It is very rare for this House not to have some indication of the scale of a sanction that is being introduced in criminal or civil law, because it is seen as unfair. In both the Commons and the other place, there has been a consistent standard of behaviour: when the Government impose sanctions they undertake considerable consultation, so that people have confidence in the legislation that is passed, and in the institution that will adjudicate on the monetary penalties levied. I speak as someone who has been trying to amend Government legislation for about 23 years, even when my own party was in Government. It is a very simple point—nothing more than that—but it is important and is at the heart of the legislation.

[Michelle Donelan]

Under the amendment, that the monetary penalty that the Office for Students can impose on student unions for breach of their duty to protect freedom of speech will be subject to a maximum amount, set by the OfS and decided following consultation with representative bodies of higher education providers and student unions. However, the Bill already provides that the amount of the monetary penalty is to be decided by the OfS, in accordance with regulations made by the Secretary of State; the regulations will of course be subject to parliamentary scrutiny. This mirrors the approach taken in section 15 of the Higher Education and Research Act 2017 on monetary penalties imposed on higher education providers.

--- Later in debate ---

[Michelle Donelan]

I will make some progress.

[John McDonnell]

Can I help the Minister on that point?

[Michelle Donelan]

I will give way to the right hon. Gentleman, but if I can then make some progress, I might actually answer some of the Opposition’s questions.

[John McDonnell]

What would be helpful—before Report, at least—is to have some discussion on the draft regulations. I understand that it is not possible to publish the regulations formally, but we could have a discussion on the draft regulations before Report, so that Members can at least be assured of the range that the Government are thinking about with regards to the monetary penalties.

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

Debate between John McDonnell and Michelle Donelan

Monday 20th September 2021 Public Bill Committees

[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.

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

Debate between John McDonnell and Michelle Donelan

Thursday 16th September 2021 Public Bill Committees

[Michelle Donelan]

What we are saying is that the junior and middle common rooms are very different from student unions, and we have to ensure that the legislation strikes the right balance—a point made by the hon. Gentleman when we debated the last amendment on bureaucratic burden.

To conclude, colleges have a vital role in the protection of freedom of speech.

[John McDonnell]

rose—

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

Debate between John McDonnell and Michelle Donelan

Wednesday 15th September 2021 Public Bill Committees

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

I rise to make a general point and a specific point. The general point is that you, Sir Christopher, have been around for longer than me and you know how these Committees work: we can either work together to improve the legislation or we can all turn up and allow individuals to speak while the rest do their correspondence. I hope that this Committee will be one that works together to improve the legislation.

I do not support the legislation in principle. It is unnecessary, over the top and a hammer to crack a nut, but the Government have a right to introduce their legislation. They have a big majority and therefore the legislation will go through in some form. The responsibility therefore falls upon us all to try to ensure that it does so in a form that is implementable and does not cause problems in the future. We have to take that attitude on the Bill, and work together to improve it. This first stage is part of that test.

We listened to a large number of witnesses, chosen cross-party by both sides. The Government brought their witnesses forward and the Opposition were able to insert some of the views of others as well. It was interesting, and at times entertaining, and it threw a fair amount of light on the overall process that the Bill would eventually implement as a result of the Government’s wishes to legislate in this field. One of the issues that came up, which my hon. Friends referred to, is the need to broaden the definition. What I heard from the witnesses was almost a consensus on that. Whatever political position they were coming from, they expressed the need to strengthen this aspect of the Bill.

We may well come back to that on Report, depending on the Speaker’s selection of amendments, but we could deal with it at this stage, and we might be able to build consensus on the Committee about designing a Bill that will deliver on the intention that we all have, I think, to ensure freedom of speech and guarantee academic freedom. That came from all the witnesses and all the contributions in our sessions so far, interrogating those witnesses. I hope that there will be a constructive response to a number of the amendments, rather than the traditional response that whatever the Opposition table has to be opposed, while everyone else sits on their hands and busies themselves with other matters.

[Michelle Donelan]

The amendments relate to the new aspect of the free speech duty that will require higher education providers to pay particular regard to the importance of lawful freedom of speech when considering what “reasonably practicable” steps they can take to secure it.

Amendment 43 would add a reference to academic freedom. The Bill refers to that in a provision on freedom of speech, which is a broad concept protected under article 10 of the European convention on human rights. Academic freedom is considered to be a subset of freedom of speech—a distinct element with particular considerations within the broader concept. As a result, there is no need for this provision to specify academic freedom separately, as it is already covered.

[John McDonnell]

What harm would it do to insert it into the legislation, on the basis of the witnesses that we heard?

[Michelle Donelan]

I thank the right hon. Member for his question. There is no point in duplicating in the Bill, because academic freedom is a subset of freedom of speech. That is clearly accepted.

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[Michelle Donelan]

If I could continue, the Government recognise that a provider will be best placed to consider, on a case-by-case basis, how to fulfil its duties under the Bill while also meeting its other duties, including those under the Equality Act 2010 and the Prevent duty. The provision in the Bill requires reasonably practical steps alongside the particular regard duty, which allows for the balancing exercise to be properly done.

Once the Bill has completed its passage through both Houses, I expect that the new director for freedom of speech and academic freedom will issue comprehensive guidance to the sector on the expectations of the Office for Students. I am confident that providers will be well equipped to strike an appropriate balance when exercising their various duties. I trust that the Committee members are reassured that this amendment is not necessary.

[John McDonnell]

Actually, I think there might be a bit of movement here. Can the Minister assure us that the Government will indicate to the director for freedom of speech and academic freedom that there should be a specific reference in the guidance to academic freedom?

[Michelle Donelan]

The director and the OfS will be publishing their own guidance, and it would not be appropriate for me to pre-empt that. I would, however, expect there to be a reference to academic freedom within that guidance. I hope the Committee is reassured that the Bill strikes the right balance.

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[John McDonnell]

I would not want the right hon. Gentleman to go too far, because I still think that it is a rubbish Bill. I want to address the issue of occupied premises; the online point has been made well by Members across the Committee.

The issue of the occupation of premises is important in a number of areas where the university is not sited in the constituency but uses, often temporarily, premises around the area. Without the amendment, the Bill will have a potential loophole that could be exploited. My hon. Friend the Member for Warwick and Leamington made a valid point about that.

On the online issue, if we do not build it in early, we will really miss a trick. The scale of online abuse that most of us receive is enormous—perhaps I receive more than others; I do not know—and if we do not venture into that territory and secure it, we will not be seen to be actually operating in the real world as it now is. Most of the universities that I have been dealing with recently are only now going back to any form of physical participation; virtually everything up until now has been online. They have also encouraged students to maintain some form of student life as well, such that where physical meetings cannot take place, student societies go online, using Zoom, Teams and so on. The Bill could make explicit reference to that. Failing that, I would welcome the Minister’s views on any alternative solution, but we need to be convinced that the issue is being addressed.

[Michelle Donelan]

Amendment 52 seeks to make clear that the duty of higher education providers to take reasonably practicable steps to secure freedom of speech applies in relation to the use of online platforms as well as physical premises. As drafted, section A1(3) requires that providers must take reasonably practicable steps to secure freedom of speech, including by securing that the use of premises is not denied because of the ideas, beliefs and views of an individual or body, and that the terms of the use are not based on such grounds.

Importantly, the provision uses the word “includes”. In other words, the duty in section A1(1) is not limited to what happens on the physical premises. Therefore, the requirement for a provider to take reasonably practicable steps may apply to online events hosted by the provider every bit as much as to physical events held by the provider.

Of course, it is important to be clear that the lawful speech of students, staff, members and visiting speakers in online spaces is covered by the Bill. The Government believe that the Bill as drafted achieves that aim, and I absolutely expect that the new director for freedom of speech and academic freedom will set that out clearly in the guidance in due course. I hope that I have reassured the Committee. However, I also commit to the Committee to keep this under further consideration.

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[Michelle Donelan]

The right hon. Gentleman can be assured that I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation. It would be impossible for the Bill to detail all of the things that the guidance needs to address.

I now want to turn to amendment 31.

[John McDonnell]

Will the Minister give way?

[Michelle Donelan]

I really do want to get to amendment 31, but I will let the right hon. Gentleman in.

[John McDonnell]

I am grateful to the hon. Lady. I just want to get this clear, because I might have missed this: the guidance itself will be prepared by the director. That guidance will not be subject to parliamentary approval or amendment in any form, and therefore the opportunity for Members of the House to influence that guidance does not exist. That is my worry, and that is why having things on the face of the Bill shapes the guidance in due course. The hon. Lady has said that she will give this further consideration, but could I suggest that she offers the Opposition lead, my hon. Friend the Member for Warwick and Leamington, the opportunity to meet her and go through the potential for an amendment on this topic on Report?

[Michelle Donelan]

I am always only too happy to meet the hon. Member for Stretford and Urmston, and to discuss this Bill in particular, so I can commit to that.

Amendment 31 seeks to expand the duty on higher education providers to secure freedom of speech by not denying the use of its premises to an individual or group because of their ideas, beliefs or views. It seeks to do so by explicitly including premises that a provider occupies. The Bill strengthens and expands the existing freedom of speech duty on providers contained in section 43 of the Education (No. 2) Act 1986. The wording of this Bill—

“any premises of the provider”—

is effectively carried over from section 43 of that Act. The Bill requires providers to take “reasonably practicable” steps to secure lawful freedom of speech for its members, staff, students and visiting speakers.

In this context, proposed new section A1(3) to the Higher Education and Research Act 2017 deals with university procedures, namely room booking systems. It requires that the use of providers’ premises is not denied because of someone’s ideas, beliefs or views, and that the terms of use are not based on such grounds. If the provider is responsible for such decisions in relation to the premises, this provision will apply. That is likely to be the case when the provider owns the premises or is in a long-term leasehold, for example; “the premises of the provider” will apply in both cases, noting that the Bill does not say “premises owned by the provider”.

However, where a provider hires rooms on a short-term basis, it is unlikely to be within its control to decide who can access rooms owned by an external party and how those rooms are used. Accordingly, such premises would not be the premises of the provider under the Bill. Of course, as I have said, the provider must still take reasonably practicable steps to ensure that there is lawful freedom of speech, but that would not apply to booking decisions about external parties’ rooms.

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

Debate between John McDonnell and Michelle Donelan

Wednesday 15th September 2021 Public Bill Committees

[John McDonnell]

Right, I am waiting for the Minister to say that this will be covered in guidance. On this occasion, I might well support her, because it is complicated. It is a combination of the level of the degree and the content and status of the research. In some instances, there will be very specific examples and we will see it playing out in individual cases and challenges setting a precedent. If we are not careful, I can see the vista being lawyers making a huge amount of money at the expense of universities.

The hon. Member for Congleton has raised a genuine issue and we should address it with subtlety, recognising that it could open the doors to a whole range of activities that would burden universities and confuse the individual academics and students themselves. I look forward to the guidance.

[The Minister for Universities (Michelle Donelan)]

It is a pleasure to work with you today, Mrs Cummins. These amendments seek to extend academic freedom protections to students as well as academic staff. Where clause 1 provides that higher education providers must take reasonably practical steps to secure freedom of speech for staff and members, as well as students and visiting speakers, this includes securing the academic freedom of academic staff. Academic staff have studied and researched for many years to reach the positions they hold. It is wrong for them to fear for their jobs or career because they have taken a minority view or put forward a controversial opinion.

I am pleased to reassure Committee members that the Bill goes further than previous legislation, broadening the definition of academic freedom so that it will include promotion and new applicants for academic positions. Indeed, it goes even further, in that all academic staff, not just employees, will have the benefit of academic freedom. That means that the Bill covers those who hold honorary positions, whether they are paid or not, as well as PhD students who teach undergraduates.

I must be clear that the additional protections afforded by academic freedom are relevant only to the academic staff of a provider. That is because the provision is about the risk of losing one’s job or the possibility of promotion, which are not issues that apply to students.

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[Michelle Donelan]

I and the Government commit to taking the topic away, listening to Members from across the Committee today and their very valid points and concerns on the topic, and to look at the topic again.

On the rationale behind the topic, the Government intend the definition to be interpreted broadly, so that a maths professor who uses their mathematical or statistical skills to analyse a non-mathematical subject would be covered, for example—that references the point made by the hon. Member for Brighton, Kemptown. It would also cover situations where an academic discusses teaching generally or the governance of their department—all that is within their area of work and subject expertise.

The wording reflects Strasbourg case law, where it has been held that academic freedom is not restricted to academic or scientific research, but also extends to an academic’s freedom to freely express their opinions in the area of their research, professional expertise and competence. Our courts must take this judgment into account when considering the question of what academic freedom is.

Further on amendment 28, I will move on to the inclusion of the wording that seeks to clarify that academics should enjoy academic freedom without “unlawful interference”. That is unnecessary, because any such interference with academic freedom will by definition be unlawful, which does not need to be stated in the Bill.

Finally, amendment 28 adds “without being adversely affected” to the definition. Being placed “at risk” of adverse effect is already covered by the Bill. It would be sufficient for an academic to show that they were at risk of adverse effect. It would not be necessary to go further and show that there had actually been adverse effect. Even a threat to damage an academic’s career, for example, could be sufficient. Therefore that aspect of the amendment is not required, as the current drafting is actually wider.

Amendments 27, 57 and 58 all seek to broaden the definition by removing the requirement for speech to fall within an academic’s field of expertise—once again, we shall cover this topic. Clause 1 provides that higher education providers must take reasonably practicable steps to secure freedom of speech for their staff and members. This includes securing the academic freedom of academic staff. As I have already said, this means that academic staff will have particular extra protection, in addition to the more general protection that the Bill offers for freedom of speech. This will allow academics to bring complaints to the Office for Students or a tort claim before the courts, which will reflect the high level of importance that the courts have consistently placed on academic freedom. I have outlined our rationale behind the “field of expertise” requirement and that it should be interpreted broadly, but as I have already stated to the Committee, I will take away and consider the issues raised regarding this topic.

[John McDonnell]

I hate to raise this subject, but it was suggested that someone in any field of academic expertise would somehow be denied the ability to talk about or comment on Brexit. Can we just clarify that?

--- Later in debate ---

[John McDonnell]

I apologise to the Minister for interfering again. I want to be absolutely clear about these amendments, though, because at the moment, I am not. She has dealt with amendment 45; could she make it absolutely clear that, even if she will not accept the amendment to include “innovative research” on the face of the Bill, the Bill does encompass protections for innovative research?

With regard to amendment 46, the Minister has made no reference to the protections against Government interference in academic work. Again, it would be helpful to get assurance about that, and if we cannot get that assurance I would urge my hon. Friends to press amendment 49 to a vote, which is about protections enabling members of staff, academics and others to criticise their own institution.

[Michelle Donelan]

Academic freedom would indeed cover academics’ own research; the research of students would be covered by the broader freedom of speech. If it were the Government interfering with an academic’s freedom of teaching or research, that would be covered in just the same way as if it were the institution interfering. I hope that reassures the right hon. Member.

I understand the concerns that have been raised today, and I assure Members that it is not our intention to unnecessarily limit the right of academic freedom. I therefore will, as I have already stated, commit to exploring this issue, particularly as regards the field of expertise.