Higher Education (Freedom of Speech) Bill

Lord Sandhurst Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendment 30. I should first apologise for not speaking at Second Reading. Because of other commitments I could not be there at the beginning and the end, or indeed to speak in the middle.

Amendment 30 seeks to add to the proposed matters to be addressed in the education providers’ code of practice. It would add a new paragraph to new Section A2(2), which would impose an obligation within the code of practice to put in place measures to ensure that politically motivated complaints against academics do not lead to time-consuming investigations. Education providers should have procedures enabling them to dismiss vexatious, frivolous, malicious or politically motivated complaints made against a member of their community—in other words, to snuff them out at the start. It might be that sensible universities will do that anyway, but if it is made part of a mandatory condition of the codes of practice then they will all have to do that, and make certain that they do.

It is plain that there are plenty of academics who hold unfashionable views of one kind or another, and they sometimes bring in unfashionable speakers with minority views. It is also plain from newspaper reports that we operate in a climate of fear, in the sense that academics and students are sometimes afraid for their careers. Without going into any unnecessary detail at this stage, the latest incidents were at Cambridge, where Professor Arif Ahmed, who is professor of philosophy, invited Helen Joyce, who has rather clear views on sex issues. We do not have to go there, but there was a tremendous hullabaloo and his own college, Gonville and Caius, made life very difficult for him.

What might have happened is that there might have been a complaint after the event or at the time. If a summary procedure is open to the university, it would see at once that such a complaint should not go any further but should be snuffed out at the beginning. This amendment is designed simply to provide for that and to encourage universities and other education providers to do things quickly and appropriately. That will help to improve the atmosphere.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak to Amendment 36 in my name. I apologise for not speaking at Second Reading. I was then in the acute phase of Covid-19, so I guess noble Lords will all be rather pleased that I was not in the Chamber at that time.

I begin by saying that I believe that this is an unnecessary Bill that is clearly playing politics with the very important issue of how critical and independent thinking happens in our country. I share the view of the University and College Union that there are great threats to academic freedom in our country at the moment. Those threats include the extreme casualisation of many parts of the university workforce, low pay and the fact that universities are being forced increasingly to act like businesses. We see the impact that that has had on freedom of speech. At Leicester and Sheffield, universities I know quite well, we had seen that whole departments doing really creative, original, critical thinking have been decimated or destroyed by the imperative to go for business returns. However, I will resist the urge to make a Second Reading speech, tempting as it is, and focus on my Amendment 36, which is drawn from an amendment that was tabled in the other place and makes a crucial point.

Anyone who read the Times this morning will have seen some very disturbing articles about harassment, particularly sexual harassment, in our military. That is a reminder of how institutions that have existed for many centuries have accumulated cultures that tend to be extremely hierarchical, and it tends to be the more junior elements who suffer pressure from the more senior. That is where harassment can be a particular issue, as was identified by the article in the Times about the military this morning.

I bring a little personal experience in that, many years ago, before the Green Party took over my life, I was very interested in history. I went to a great many academic history seminars and one thing I noticed in those seminars was that questions were asked by the senior professors, then by the professors, then by the associate professors, then by the senior lecturers, and then by the lecturers. Universities and academia in general can be surprisingly extremely hierarchical organisations. When we talk about protection from harassment, we have to look particularly at the situation of more junior staff, especially those with the casualised contracts I mentioned earlier, as so many are.

I would prefer that the Bill did not exist at all, but since it does exist, I believe it is important that we have this protection against harassment, particularly harassment against more junior members who may find themselves effectively subjected to a barrage of attack under the guise of free speech. It is crucial that the Bill does not empower that to happen.

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[Lord Triesman (Lab)]

My Lords, I will speak to my Amendment 22. One of the things that I have inevitably observed over a long period is that the proportion of the academic and academic-related staff who are on full-time contracts of the kind that we used to describe as tenured contracts has declined significantly. In some institutions it has declined almost to the point where they are a small minority. I do not agree with why that has happened, but I understand why it has. Generally speaking, it is quite difficult to get rid of people who are tenured, and if you are in economically straitened circumstances, you are probably looking for the least protection possible for some grades of staff.

But it is also true that the number and proportion of staff, and I make the point about both, who are no longer tenured but are absolutely vital parts of the academic community and are now on part-time, hourly and short-term contracts—a whole variety of contracts that do not conform to what we would have thought of as tenured staff—are increasingly women and members of ethnic minorities. There are all sorts of reasons why that is the case. For women, it is often said that, because their careers get interrupted for various reasons, it is easier to deal with them if they are not in a tenured position. For example, you do not have to replace them for maternity leave purposes. This has had a detrimental effect on the security of employment that is also discriminatory.

I will make two points that I hope the Grand Committee will feel are not in any sense unhelpful. First, if we want to ensure that the whole of the academic community buys in effectively to these concepts and the Bill’s key propositions—I share with my noble friend Lord Hunt and many others who have spoken the belief that this is probably not the right way of going about it, but none the less we are going about it so I am going to do my best with what we have—then we need to make sure that universities understand that it means the whole of the community. I regret to say that many universities tend to think of the academic community as being the tenured staff; I fear that that is probably also true of some Cambridge and Oxford colleges, having known those colleges myself over the years. They have much less regard for whether other aspects of academic life apply to all the other academics. I am not even being particularly critical of that; I am just saying that it is one of the ways that the sector has evolved.

Secondly, as I have said, this has had a discriminatory effect. When we talk about the academic community, it would be very easy to say that we do not have exceptions in mind. As the noble Baroness, Lady Smith, said just a few moments ago, we mean the whole thing, because we intend that the Bill’s impact should be on the whole of that community who are employed as academics, irrespective of the character of the contract they hold. I do not even believe that it would have any difficulty embodied in it for contractual or other purposes; it would simply be everybody who is employed to teach or research. I include in that “academic-related”, because, rather like the librarians in your Lordships’ House, there are a number of people who do background research that is fundamental to the academic conduct of an institution.

I commend this amendment without embarrassment, because either the Bill means what it says or it means it for only some people.

[Lord Sandhurst (Con)]

My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.

What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.

Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:

“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]


I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, much has been said that I agree with. I shall speak to Amendment 26, to which I put my name. As people have been declaring their interests, I should say that I have never run an Oxford college and am never likely to, but in the Academy of Ideas, I have been working with students for a long time on the issues of free speech and academic freedom—that is the kind of work I do—and a number of those students go on to become young academics. I fully support the broadening out of what we mean by academics, because sometimes it means the seasoned prof rather than the broader community of the academy.

The recent report of the Policy Institute at King’s College London said that 41% of students agreed that academics who teach material that offends students should be fired. That is extraordinary, if you think about it: they think that they should be sacked if they teach the wrong things. I do not suggest that those students cannot be won round or that those academics will all be fired, but that is the kind of climate we are talking about. There is an institutionalised acceptance of this—which, by the way, I think is partly due to the students-as-consumer atmosphere, and the managerialism and commercialisation of universities. It is a bit like saying, “I don’t like what you teach, I find that offensive; you should be sacked.” That is one explanation of why nearly 36% say that they are self-censoring.

When I have talked to young academics, I have found that they are the ones who feel that they cannot speak out, and that they are looking over their shoulder all the time. A number of older professors who are prepared to speak out say, “Well, what can they do to me, I am about to be emeritus?” But even then they do not speak out because they say, “I don’t want my reputation to be sullied, to be slandered or to be called a bigot.” If you are trying to get research grants, or get on the ladder of work and so on, you are going to be wary.

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Moved by

[Lord Sandhurst]

12: Clause 1, page 2, leave out lines 7 and 8 and insert—
“(5) A provider must—(a) take the steps set out at subsection (1) to secure the academic freedom of—(i) academic staff, and(ii) visiting speakers who are academic staff of any other higher education institution; and(b) not subject any member of academic staff to any detriment (including dismissal) through any act, or deliberate failure to act, done on any ground that the member of academic staff has exercised his or her academic freedom.”Member’s explanatory statement
This amendment seeks to extend academic freedom protection to academic visiting speakers, and to forbid outright any punishment of academics for lawful exercise of academic freedom.

[Lord Sandhurst (Con)]

My Lords, the importance of this amendment is to put the duties towards academic freedom on a rather different basis from those currently in the Bill. New Section A1(5) says:

“The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.”


We want to secure their academic freedom, but that is—via new subsection (2) and then back to new subsection (1)—on a “reasonably practicable” basis, so it is not an absolute duty.

The effect of the amendment is, first, that:

“A provider must … take the steps set out at subsection (1)”—


which is a “reasonably practicable” duty—

“to secure the academic freedom of … academic staff, and … visiting speakers”.

That will remain on a “reasonably practicable” basis. But secondly, under proposed new paragraph (b), the amendment would

“not subject any member of academic staff to any detriment (including dismissal)”

and so on, and is subject to the “must” clause because it does not link back to new subsection (1).

The important essence of this amendment is to impose an absolute, rather than a “reasonably practicable”, duty not to dismiss or punish an academic for exercising his or her academic freedom. Without this amendment and this change to the structure, a provider could argue that continuing to employ an academic who has stirred things up and who is unpopular with activists would be impracticable. That would be particularly relevant, for example, where an academic is conducting or has conducted a line of research that is socially or politically sensitive so far as the end product is concerned, and where that research perhaps upsets existing social norms as well as academic norms. In the field of science, for example, one can think of genetics, sex, race or psychology. It can also be in political contexts.

Let us assume it is completely bona fide scientific research but of a novel line that has discovered things that upset people dramatically. There is then an uproar, and the university just says, “This is all too difficult—I’m afraid Dr X has to go”—and, actually, Dr X has been doing proper research subject to all the norms of academic freedom.

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[Lord Grabiner (CB)]

Looking at proposed new subsection 5(a)(ii), I do not really understand why the noble Lord wishes to confine this to

“academic staff of any other higher education institution”.

A visiting speaker may not fall within that definition, but is nevertheless a person who in principle should be protected and allowed to speak, and have freedom of expression. I do not really understand why it is restricted in that way.

[Lord Sandhurst (Con)]

What we are concerned with in particular is people losing their employment, but I am happy to go further.

[Lord Triesman (Lab)]

My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.

One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.

That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.

The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.

If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.

The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.

That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.

Higher Education (Freedom of Speech) Bill

Lord Sandhurst Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I am grateful for the Minister’s observations. I listened to his assurances and the issues he raised with interest. I would like to consider them carefully before Report. For now, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to Amendment 69 from the noble Lord, Lord Sandhurst. The Committee will note the unusual situation, in which the noble Baroness, Lady Fox, and I have both signed the same amendment. That shows that there may be different ways of coming at this issue. My focus is very much on the independent evidence and the statistics about the impact that Prevent has had in universities.

I begin with the leading human rights group, Liberty, which says that the biggest threat to free speech in our higher education institutions comes from Prevent. To quote its director of advocacy:

“There is a substantial irony in the government spuriously accusing today’s students of threatening free speech when, in fact, the true threat to free speech on campus is the government’s own policies”.


The University and College Union briefing is useful to the entire Bill. It notes that

“Prevent has encouraged the policing of mainstream discussion of topics such as British foreign policy and Palestine”.

The Committee might ask how many events this affects. Figures from the Office for Students, from 2019, show that, in more than 300 higher education institutions in England, nearly 60,000 events and speakers were considered under the Prevent duty. Nearly 2,100 appeared only with conditions attached. We do not know how many proposed events and speakers did not even get to that stage because people were scared off by the idea of being tangled in Prevent—but that is 2,100 events.

If the Committee does not want to listen to those sources, perhaps it will look at the inquiry of the Joint Committee on Human Rights of the two Houses, which reported in 2018. I come back to comments I made on Monday about the direction, and indeed the existence, of this Bill. The Joint Committee said that this area relates to

“a small number of incidents which have been widely reported”.

I contrast this with the kinds of examples noble Lords have raised. Remember, it was the Joint Committee on Human Rights of both Houses that noted that Prevent was a significant “chilling” factor on free speech in universities. It said that there is “fear and confusion” surrounding the Prevent strategy.

I note also that research from SOAS academics found that Muslim students on campus were modifying their behaviour because of Prevent, for fear of being stigmatised, labelled as potentially extremist or subjected to discrimination on campus.

My position remains that this Bill is not necessary or productive. However, if we are to have it, it should surely contain Amendment 69, which addresses what a number of independent sources have identified as the most chilling source of restrictions on free speech on campus.

[Lord Sandhurst (Con)]

My Lords, I am grateful for the support that has already been given to Amendment 69 by the noble Baronesses. I can therefore deal with it quite quickly, just to explain what it does.

It would add a new provision to Section 31 of the Counter-Terrorism and Security Act. The effect would be that the duty imposed under Section 26(1) of that Act, which I will explain in a moment, will not apply to any decision made by a provider, in effect, which directly concerns the content or delivery of curriculum, the provision of library or other teaching resources, or research carried out by academic staff.

The simple way to look at it is this. Section 26(1) of the Counter-Terrorism and Security Act applies directly to a specified authority and imposes a duty to

“have … regard to the need to prevent people from being drawn into terrorism”—

in other words, the Prevent duty. Section 31(2) provides that, when a specified authority—in other words, an academic institution—is carrying out that duty, it must have regard to the Prevent duty. Such an institution

“must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty”

and

“must have particular regard to the importance of academic freedom”.

Amendment 69 would clarify what is to be encompassed in that on a more express basis by making it absolutely clear that, where the specified authority is directly concerned with content or delivery of curriculum, the provision of library and teaching resources, or research, the Prevent duty will not apply. That is all it does. It is very simple and clear, and it protects academic freedom. I think that is all I need to say in the light of the speeches that have been made.

[Baroness Smith of Newnham (LD)]

My Lords, on this occasion I speak as myself—I do not think I have to go quite as far as the noble Baroness, Lady Falkner of Margravine, in saying that I speak as myself and not as a Cambridge academic. And I do not have to channel my noble friend Lord Wallace, because he did not give me any briefing notes for these amendments.

The amendments in the name of the noble Lord, Lord Mann, are potentially helpful but I assume that, as with any legislation, the Government are extremely unlikely to say, “That’s a really good amendment. We’ll just take it lock, stock and barrel and put it into the legislation”. That normally does not happen. Even if a Minister agrees in Committee that an amendment might have some validity and value, there is usually a reason why its wording or a particular idea in it would not be quite right. I therefore ask the Minister, in responding to the amendments, to respond instead to the sentiment of what the noble Lord, Lord Mann, is saying.

Higher Education (Freedom of Speech) Bill

Lord Sandhurst Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

Another problem comes out of this discussion. It takes us back to the position of the regulators. Should the Office for Students be given powers to enforce the duties? This issue is not currently addressed, which gives rise to some serious problems. If a private claimant is not going to have the ability to bring a claim for damages—which is my preferred position—then somebody has to be responsible for ensuring that these duties are properly performed. The obvious person to do that is the regulator, but at the moment there is a huge hole in the Bill because that question is not addressed. I am sorry for having taken so much of your Lordships’ time.

[Lord Sandhurst (Con)]

My Lords, I speak to Amendments 49, 50 and 52, which are premised upon Clause 4 surviving—I start from there.

Amendment 49 would add some additional subsections to Clause 4. The effect of these would be to add employment tribunals to the definition of civil courts that can hear disputed issues. Proposed new subsection (5) would provide that, in addition, where there is a dismissal of an academic who is held to have been dismissed for exercising academic freedom, that will be automatically unfair, with the usual consequences.

Amendment 50 would introduce a procedure for staying claims so that, when one is brought, either party can apply for it to be stayed—particularly, one might think that the education provider would apply for it to be stayed—to go to mediation by the regulator in the way that employment tribunal proceedings are stayed to be mediated by ACAS.

Employment tribunals have these advantages: they are more informal, they are quicker and they are more accessible to those who wish to pursue a claim. Importantly, they operate within strict time limits. The sort of claims we are looking at here are claims for unfair dismissal or similar. In any event, they need disposing of without long delay; we do not want a six-year period in which someone can bring one of these claims. In the employment tribunal, by way of example, unfair dismissal claims must be brought within three months, less one day, of the effective date of termination. In a contract claim, it is three months from the date of breach. Although it is not in my amendment, it would follow, I would hope, that if the principle were adopted, the employment tribunal rules would be amended to ensure that similar provisions applied to such claims. In contrast, as I have already observed, a claim in tort has a six-year life before it is timed out.

The provision in Amendment 50 mirrors ACAS early conciliation and is similar also to provisions in Section 148 of the Pension Schemes Act 1993, under which either party can seek a stay to the Pensions Ombudsman. Whichever model we take—I leave it to the Government to consider the precise wording, but the idea is clear—there should be a reference to the Office for Students, so that the matter has every chance of being disposed of and resolved there by the regulator.

In short, these proposals would encourage settlement. They address many of the arguments raised against the statutory tort. It would certainly be simpler and quicker if it was dealt with in the employment tribunal, and there would therefore be the great benefit of dispatch. There is every hope that, using this combined process, a stay would be ordered and the case resolved swiftly, cheaply and sensibly. In other words, it would bring accessibility, speed and efficiency.

Finally, the introduction of proposed new subsection (5), in addition to the statutory tort, as I explained, would make it plain that where a member of academic staff has been dismissed and the tribunal hearing it finds that this has been for rightfully exercising his or her academic freedom, it should be deemed to be automatically unfair.

Amendment 52 would make a series of technical amendments to ensure that the rights apply effectively to the range of persons whom it is intended may avail themselves of the tort. It therefore removes the requirement for a two-year qualifying period for which employees would normally have to qualify to claim for unfair dismissal. It removes any cap on compensation and it provides for access to interim relief, in special cases, for re-engagement pending a final hearing—this is for dismissal cases. This would give an academic, or someone in an academic post who has not been there for two years but has been dismissed for exercising freedom, equivalent protection to that given to whistleblowers.

I conclude by saying that these amendments would provide strong protection of the sort I believe the Government are really aiming at. It would marry the OfS scheme to that which already exists in ordinary employment tribunal cases and would enable matters to be disposed of efficiently and economically.

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[Lord Sandhurst (Con)]

My Lords, Amendment 60 follows on from what my noble friend Lord Willetts has said. We all seem to agree that we need a strong and effective regulator; that is absolutely at the bottom of this. My amendment makes absolutely clear the scope—or as lawyers say, the jurisdiction—of the regulator. It would prevent a subsequent challenge in court that the regulator did not have power to deal with this.

The amendment seeks to ensure that the OfS complaints scheme has a jurisdiction that is wider than the conventional ombudsman’s jurisdiction, which is simply to determine administrative fairness and reasonableness. It appears that the OfS complaints scheme is modelled closely on that of the Office of the Independent Adjudicator. That is pragmatic and sensible, and we know that scheme works. However, in two decisions—the case of Maxwell in 2011 and a decision in 2007—the Court of Appeal limited in an important respect the jurisdiction of the Office of the Independent Adjudicator and ruled that, acting as an ombudsman, it cannot adjudicate on legal rights and duties and that such matters are to be left to the courts.

We need an amendment to make it plain that the limitation the Court of Appeal introduced in the case of the OIA will not apply to the OfS. Otherwise, the director for freedom of speech and academic freedom will have very limited powers to address the substance of university free speech disputes, which will typically concern the right to free speech and this Bill’s statutory duties. This amendment would remove an unintended weakness and provide the regulator with the powers that I believe this House wishes it to have.

[Lord Triesman (Lab)]

My Lords, I rise to speak to my Amendment 62. I can help the Minister by saying that it is probably imperfect. That may save her a lot of time later, as she tries to dissect it to see how well it would or would not work. I have been doing my best to find something that might work, but I am painfully aware of its imperfections. Perhaps the best thing I can do is explain what I want it to achieve. I hope that the noble Lord, Lord Willetts, will not be upset by my saying that it follows his intentions as expressed in his amendment.

I am very grateful to the Minister, the noble Earl, Lord Howe, for saying that he will review Clause 4. A viable alternative, which is not unusual in other regulated bodies, is to say that every institution regulated by that body should be compelled to accept its rules. This is a body within higher education, in the same sense that the REF, other funding decisions and many other decisions have now been imported into the world of universities. Most of us would probably have preferred that they remain more independent, but I have accepted the argument that this is very difficult to sustain, given some of the things that have happened.

In this case, what I am trying to achieve is that every institution providing higher education be registered with a body and consequently accept its rules. As the noble Lord, Lord Johnson of Marylebone, said earlier, it was intended that the Office for Students be constructed to be authoritative and to provide appropriate guidance. However, it is not then for a university, a student union or anybody else who brings a complaint through this mechanism to say that they will not abide by the decision taken by an officer—they could be named almost anything—in the Office for Students with the responsibility for adjudicating these matters.

I am keen that it should be a named office. A great deal of knowledge will be developed around the culture of dealing with these things in a way that probably would not happen with successive judges in courts. It will develop a knowledge and be able to respond in a knowledgeable way, and within the overall culture. The determination of this officeholder would be binding on those who had submitted the complaint.

I recognise that it is very seldom the case that people will say that this should be a completely untrammelled power. Therefore, I have also tried to build in a means by which the decision can be looked at—in a way, like an appeal. But in either case, whether accepted at first hearing or having gone through a second hearing, it is the decision and the parties must abide by it. I recognise that this makes no allowance for financial penalties, and I have not written anything of that kind into the amendment. However, it might very well make decisions about how a university, individuals within it or people invited to take part in its affairs should conduct themselves and, if necessary, reinstate a debate which has been cancelled. There is a whole variety of things that it could do.

I want to create something of that kind because it will be authoritative, it will address a number of questions that the Bill is obviously intended to address, and it will be from within the culture of higher education, rather than imposed on it from somewhere else, which is never a good recipe in higher education. It is miles better if it is felt to be at least in some significant way part of the beast of higher education. There may be many better ways of formulating this, but that is the amendment’s aim. It does exactly what a number of noble Lords have said, which is to reinforce the regulatory system by making its determinations mandatory for all those who have joined the club of that regulatory system. No doubt it would in due course provide guidance. That would probably be very useful after the first cases have been heard and people have begun to ponder their import and what has been learned from them. It would probably provide good guidance. That is a structure which the best regulators achieve.

The old mechanism in the Cabinet Office to look at the validity of regulation specified a number of things. I will not go through them all, but it specified that the outcomes should be proportionate, intelligible, widely disseminated and understood more widely. We should expect all that as part of the outcome from proper regulation. Better regulation makes people feel they can live with a solution, rather than being ordered to do it in a court or some other place.

This amendment hangs together with the deliberations on Clause 4. I am ready to accept that it will need radical reworking. Helpful as the House of Lords officials have been in my trying to get there, I can see that somebody, including me, could pull bits of it to pieces.