Higher Education (Freedom of Speech) Bill

Debate between Layla Moran and Claire Coutinho

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[Claire Coutinho]

Respectively, I disagree with the hon. Gentleman. I do not think that would be the case. The Government are committed to strengthening the protection for lawful freedom of speech on campus, as set out in our manifesto. If providers fail in their duty to take steps to secure freedom of speech within the law, individuals who have suffered as a result should be able to secure real remedies, including by means of civil proceedings. For all those reasons, our position is that the tort should be reinstated in its original form for further consideration in the other place.

Amendment 3 was tabled in the other place by the noble Lord, Lord Collins of Highbury, and received support from all sides. It will prohibit higher education providers and their constituent colleges from entering into non-disclosure agreements with staff members, students and visiting speakers in relation to complaints of sexual misconduct, abuse or harassment or other forms of bullying or harassment. I believe that Members on both sides of the House will welcome the inclusion of this provision in the Bill. It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them even with their family or close friends. This does not come down to politics, in my view; it is about doing what is right.

[Layla Moran (Oxford West and Abingdon) (LD)]

Will the Minister give way?

[Claire Coutinho]

I will not, as I have to make some progress.

It is impossible to understand the full extent of this practice—by definition, NDAs too often remain hidden from view—but a 2020 BBC investigation found that nearly a third of universities had used NDAs to deal with student complaints. I agree with those in the other place, who proposed and supported the amendment, that we cannot allow this practice to continue.

Many institutions have already signed up to a voluntary pledge rejecting the use of NDAs in such circumstances. That pledge was launched by the previous Minister for Higher and Further Education and now the Secretary of State for Science, Innovation and Technology, my right hon. Friend the Member for Chippenham (Michelle Donelan), together with Can’t Buy My Silence. However, many institutions have not done so, despite strong encouragement from the Government. This amendment builds on the strong foundation of the Government’s work in this area over the last year and brings a legislative means to end this abhorrent practice for good.

It is important to appreciate that this is not a total ban on the use of NDAs. There are some circumstances where an NDA is appropriate—for example, to protect intellectual property or commercially sensitive information —but as I said, using NDAs to silence victims of this type of conduct is entirely wrong. I therefore wholeheartedly support this amendment. Not only is it vital for the welfare and wellbeing of victims, but by enabling them to speak out and provide information to others about their experiences, it will extend protections to students and others on campus.

I will now speak to the group of amendments concerning the definition of freedom of speech. There was much debate in the other place about whether the Bill would benefit from a more expansive definition of freedom of speech, and peers subsequently agreed a number of Government amendments to that effect: amendments 1, 2, 4, 5, 8 and 9.

Amendment 4 amends the provision in new section A1(11) of the Higher Education and Research Act 2017, inserted by the Bill, which previously set out what freedom of speech in the Bill includes. The amendment refers to the freedom

“to impart ideas, opinions or information… by means of speech, writing or images (including in electronic form)”.

That wording is derived from article 10(1) of the European convention on human rights and is also used in the Bill of Rights Bill. There is also a reference to article 10(1) of the ECHR, as incorporated by the Human Rights Act 1998. The drafting is deliberate in reflecting that freedom of speech in the Bill has broader application than freedom of speech in article 10, because students’ unions are not public authorities and are not subject to the ECHR.

The other amendments are consequential on amendment 4. For example, where previously the Bill referred to “ideas or opinions” in certain provisions, to achieve consistency, those references need to be changed to “ideas, beliefs or views”. These consequential amendments do not change the meaning of the original drafting.

There are also minor and technical amendments made by the Government to the Bill. Amendments 6, 7 and 12 clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life—in particular, members of the governing councils of universities and also retired academics who are emeritus professors.

However, it became apparent from debate in the other place that some universities and colleges treat their students as members for life—for example, the University of Cambridge. As a result, the Government tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. These amendments do not affect the position where a current student’s freedom of speech is wrongly infringed, in so far as they may still make a complaint about that even after they have left university.

Finally, amendment 11 distinguishes between new functions imposed on the OfS by the Bill. It will amend the power in new section 69A(2) of the Higher Education and Research Act 2017, inserted by the Bill, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values. The original drafting replicates section 35 of the Higher Education and Research Act 2017 about identifying good practice relating to the promotion of equality of opportunity.

However, that wording might lead to confusion that this power relates to the new duty on providers and colleges to promote the importance of freedom of speech and academic freedom that is in new section A3 of the 2017 Act, inserted by clause 1 of the Bill. I can confirm that it does not. The OfS will have a duty under section 75 of the Higher Education and Research Act to give guidance on how to comply with the duty under section A3. There is no overlap with section 69A(2). Accordingly, section 69A(2) is different, providing the OfS with a general power to disseminate good practice and advice on how to support freedom of speech and academic freedom. The amendment makes that distinction clear.

I hope my words today have provided clarity and reassurance on the amendments made in the other place. Once again, I thank Members of the other place for the time and scrutiny they gave to the Bill. Our opinions on the statutory tort differ, though, as I still firmly believe it is an essential part of the Bill and an integral part of ensuring that freedom of speech is properly protected in our universities.