Higher Education (Freedom of Speech) Bill

Matt Western Excerpts

2nd reading
Monday 12th July 2021 Commons Chamber

[Matt Western (Warwick and Leamington) (Lab)]

I thank everyone who has participated in today’s debate. The Bill uses a sledgehammer to crack a nut—so said my hon. Friend the Member for Canterbury (Rosie Duffield) and the hon. Member for St Albans (Daisy Cooper). As my hon. Friend the Member for Stretford and Urmston (Kate Green) succinctly put it, the Bill will result in legal protection for hate speech.

With this Bill, the Government are seeking headlines. The Bill is mostly about headlines, but of course Labour supports free speech. Labour is the party that has done more than any other when it comes to free speech—just look at our record. In fact, Labour introduced two significant pieces of legislation in this regard: the European convention on human rights, and the Equality Act 2010. Without exception, every one of my colleagues has risen to extol their support for free speech.

The Government are fooling no one with their claims for the Bill, as was laid bare by the contributions from my hon. Friend the Member for Cambridge (Daniel Zeichner) and my hon. Friend the Member for Sheffield Central (Paul Blomfield), who chairs the APPG for students and who talked about the numerous attempts by successive Conservative Governments to use the free-speech dead cat. Many will have listened intently to my hon. Friends the Members for Leeds North West (Alex Sobel) and for Warrington North (Charlotte Nichols), who made it absolutely clear that this legislation would facilitate the likes of David Irving, Nick Griffin and others to spew out their antisemitic, racist hate speech on our campuses. My hon. Friends asked what hate speech will be allowed. Both called the legislation dog-whistle politics, over which the Government will lose control. What we have before us would be more aptly titled the hate speech protection Bill—a piece of legislation that would protect antisemites, holocaust deniers and people whose only aim is to cause deep hurt and offence.

The Government claim to be advancing the people’s priorities, but this issue is certainly not one of them. One would have thought that the Government would prioritise an inquiry into the covid pandemic; the greater number of challenges that the higher education sector faces; the impact of the pandemic on education, as we have heard; the mental health crisis; or the fact that violence against women is endemic. On the last point, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) asked the Secretary of State about his failure to address violence against women. She pointedly asked where that Bill is, but the Secretary of State remains silent.

My hon. Friend the Member for Nottingham South (Lilian Greenwood) asked why the Government have not prioritised support for students throughout the pandemic, which has exposed enormous inequality. My hon. Friend the Member for Luton North (Sarah Owen) spoke of the ongoing crisis in mental health on our campuses and asked why it is not a priority. Instead, the Government have manufactured a Bill to once again distract from their own failings. They claim that they have evidence and data, but as my right hon. Friend the Member for North Durham (Mr Jones) said, the Government are in an evidence-free zone.

As my hon. Friend the Member for Coventry North West (Taiwo Owatemi) said, the Bill is motivated by the cancellation on university campuses of just six scheduled events out of 10,000 last year. Four of those were cancelled due to incorrect paperwork, one was moved off campus, and the other was a pyramid scheme. As my hon. Friend the Member for Hornsey and Wood Green (Catherine West) and my right hon. Friend the Member for Hayes and Harlington (John McDonnell) asked, why is the Secretary of State so attentive to a virtually non-existent problem? Why was the Secretary of State not fighting his corner for the £15 billion of catch-up funding that was proposed by Sir Kevan Collins, rather than meekly accepting the £1.4 billion pittance? He would rather focus on six, or truly two, cases where people were not heard on campus.

The Bill is a charter for hate speech. Many people, including my hon. Friend the Member for Coventry South (Zarah Sultana), reminded us that the Minister for Universities, the hon. Member for Chippenham (Michelle Donelan), was unable to deny that the Bill would create a legislative safeguard for holocaust denial. Why are we devoting our attention to a Bill that provides legislative backing to help holocaust deniers, racial supremacists and other preachers of hate gain special access to university campuses? The simple truth is that the existing legislation—section 43(1) of the Education Act 1986, the Human Rights Act 1998, the Equality Act 2010, the Counter-Terrorism and Security Act 2015, which includes Prevent duties, and the Higher Education and Research Act 2017—already covers the issues that the Bill seeks to address. The 2017 Act established the Office for Students and states that the governing body must take

“such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider.”

My hon. Friend the Member for Cynon Valley (Beth Winter) questioned why, despite those existing powers, this Bill seeks to create a range of new obligations on higher education providers and to give the OfS new powers to fine an institution.

My hon. Friends have questioned throughout the new tort enabling individuals to seek compensation through the courts, which will result in universities and student unions having to spend more significant time and money fighting legal battles against vexatious and frivolous claims. What is the unintended consequence? Institutions and student unions will naturally become risk averse and avoid inviting speakers for fear of financial repercussions if they are subsequently cancelled. Remember that many HE institutions and colleges are actually quite small—maybe 2,000 or 3,000 students—and will certainly not be able to cope administratively or financially with the additional burdens placed on them. The result will be fewer speakers, fewer debates and an overall reduction in free speech.

Then there is the threat to academic freedom with the inclusion of a new qualifying concept of

“within their field of expertise”.

Perhaps the Minister would elaborate on how academic freedom will be limited in practice and on who would decide. Increasingly, and I have to agree with the right hon. Member for Haltemprice and Howden (Mr Davis), this begins to sound like the McCarthyism that started in the US in 1950s, but it is McCarthyism against our university sector. As we have heard repeatedly from Labour Members, this is a Bill that claims to safeguard, yet perversely will have the reverse effect in numerous unintended consequences. The idea that this Bill could actually facilitate holocaust deniers to speak on campus should itself send a chill through the public consciousness. Likewise, it would enable other anti-science brigades to hold court on campus. Perhaps I could paraphrase the late Donald Rumsfeld, and suggest that there may be intended unintended consequences. That is to say that the Government may not have fully thought through the forms and scale of damage to the higher education sector, but it seems they would not be dissatisfied with the turmoil of litigation and the financial impact they have unleashed, because this is the precursor to their attack on the sector.

Finally, let me turn to the Office for Students and its central role. If we needed to understand what was going on here, we could do no better than start with the appointment of the new chair to the supposedly independent OfS. I know the Prime Minister is a recent convert to the love of dogs, but appointing his poodle? Of course, one of Lord Wharton’s first acts was to make an £8,000 donation to the Conservative party, which is two months’ pay from his two-day-a-week job. Now we have what many are describing as an “Office for Stooges” overseeing higher education, and that is how free and independent speech will be in future. It is a body whose purpose now is to do the Government’s bidding, particularly when central to this legislation is the appointment of a tsar for free speech and academic freedom. That is chilling—one person with all those powers.

I will be voting for our reasoned amendment. Given that there is no serious evidence to suggest there is a problem with freedom of speech on our campuses, instead of addressing the urgent problems faced by students and higher education institutions, the Bill is yet another case of the wrong priorities from a Government who seek to divide rather than unite. I invite the Minister to explain why the public should trust this Government when it comes to free speech. After all, this is a Government who shut down Parliament illegally—this place, illegally—as well as a Government who interfere with the independent selection of members of parliamentary bodies and the selection of museum trustees. They are even a Government who tell the National Trust not to explain the history of certain of its properties that were funded on the proceeds of slavery. That is sinister.

The Government should drop this Bill and get on with addressing the urgent needs of the country, where people are more concerned about how they are going to pay their bills this week and this month, and where inflation is ripping through people’s hard-earned income, with an economy that has become so distorted and so riven by inequality in the past 11 years that we the people were more vulnerable to the pandemic even before the Government managed to mismanage the crisis. The public simply want good government and a Government who understand that politics is all about priorities, and that is why I urge all Members to vote for our reasoned amendment.

Higher Education (Freedom of Speech) Bill (Carry-over)

Matt Western Excerpts

Carry-over motion
Monday 25th April 2022 Commons Chamber

[Matt Western (Warwick and Leamington) (Lab)]

What a palaver! This is less a carry-over motion and more of a carry on, if I may say so—“Carry On Regardless” being probably the most apt title. Let us call it a year: it is 358 days since the Bill was introduced to the House. Announced in the last Queen’s Speech, the Second Reading was debated nine months ago and the Public Bill Committee concluded its work over seven months ago. Since then, nothing—so is there a problem? The lack of urgency suggests it is really not that important after all. Certainly, the Secretary of State has not mentioned it once in the Chamber since his appointment five months ago, and the legislation would certainly have no effect on cancel culture, according to lawyers, media commentators and the sector itself.

The Government now want another year to resolve their own problem—a problem of their making—which is more time that could be better used to address the immediate and pressing issues faced by the great British public, such as the cost of living crisis, the prospect of 40% of UK households being in energy poverty by the autumn and an economy performing worse than any other G7 country when compared with pre-pandemic levels. We will not vote against this motion, but the public will not forgive this out-of-touch Government, who fail to address their priorities.

Higher Education (Freedom of Speech) Bill

Matt Western Excerpts

Report stage
Monday 13th June 2022 Commons Chamber

[Matt Western (Warwick and Leamington) (Lab)]

Before I discuss the amendments in my name, I will briefly reflect on the Bill Committee. Over three weeks, we debated some 80 amendments in a constructive spirit; I commend right hon. and hon. Members across the Committee who participated and contributed to what was at times an abstract debate, but an important one, about academic freedom and freedom of speech.

Since the end of the Committee stage, some 300 days have elapsed and—nothing. Despite constant speculation about whether the Bill would fall victim to the Government’s own internal politics, it is finally on Report. The Opposition welcome that, but if I may say so, the Bill’s fragmented and bumpy ride through Parliament is emblematic of what observers widely consider a shoddy piece of legislation, at best unnecessary and at worst divisive.

I wish to address the amendments in my name—new clause 4, on the director for freedom of speech and academic freedom; amendment 17, on the scope of academic freedom; amendment 18, which aims to recognise the competing freedoms in debates around freedom of speech; new clause 5, our proposed sunset clause; and amendments 19 and 20, which my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) and I tabled on the prohibition of non-disclosure agreements—and the Government amendments.

New clause 4 would ensure that the director for freedom of speech and academic freedom has not donated, and cannot donate, to a political party while in post. It would ensure that both Houses of Parliament and the relevant Select Committee have a say on the person appointed. It would also provide for the Secretary of State to set up an independent advisory panel to suggest a suitable candidate for appointment.

[Munira Wilson (Twickenham) (LD)]

I very much hope that when the Minister responds to new clause 4, she will acknowledge that the Government’s track record on appointments has not been strong of late. The High Court has ruled that the then Health Secretary did not comply with the public sector equality duty when he appointed the head of a new public health quango. The chair of the Charity Commission resigned just days after being confirmed in post. The search for the chair of Ofcom was rerun after Ministers’ recommendation was unsuccessful. Does my hon. Friend agree that the checks and balances in new clause 4 are vital to this important appointment?

[Matt Western]

The hon. Member is right. A pattern is clearly emerging, which I will describe and examine in due course.

Having an Orwellian director for freedom of speech sounds like a contradiction in terms, but the appointee will certainly have sweeping powers. They alone will be responsible for making sure that universities and student unions are upholding their freedom of speech duties. They will act as judge, jury and executioner in free speech complaints and will potentially monitor overseas funding of universities and student unions. As job descriptions go, it is unprecedented. Incredibly, the job description is already out there, for anyone who is interested, with a £100,000 salary and a four-year term—I am not sure, Madam Deputy Speaker, but it could be on your horizon.

New clause 4 should not be necessary, but in the context of this Government’s record on appointees, it most definitely is. Let us start at the very top of the tree. In February last year, Lord Wharton, a Conservative peer, was appointed as chair of the Office for Students. His appointment was something of a surprise to many; he himself admitted that he had no experience in the higher education sector. It seems that the only criterion for his appointment by this Government was that he had run the Prime Minister’s leadership campaign.

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

The standardisation provided by allowing a body such as a Select Committee to interview a person before appointing them to a role such as chair of Ofsted is common. The Minister knows that, because she was on the Education Committee with me when we did pre-appointment hearings, so it seems a little unusual that scrutiny is not seen as being as important in this aspect of education as in other areas.

[Matt Western]

My hon. Friend is absolutely right. We need more process, more transparency and an honest approach if we are to clean up our politics. I absolutely believe that that is what I would want any organisation to have. We must move away from what appears to be an increasingly transactional approach to these appointments.

In return for his being appointed, Lord Wharton’s company GBMW Ltd made what is now referred to as a golden thank you for being handed the job by the Prime Minister: a donation to the Conservative party of £8,000. That is small change for him, given that he gets paid £60,000 for just two days’ work per week.

Last month, we discovered that Lord Wharton had chosen to speak at the Conservative Political Action Conference in Hungary. It was a sell-out. In his speech, he endorsed Viktor Orbán’s far-right, autocratic regime—the regime that had forced George Soros’s Central European University to leave Budapest in 2019. So much for our champions of academic freedom! He also shared a platform with Zsolt Bayer, a television talk show host in Hungary who has been widely denounced for his aggressive racism; his grotesque comments do not bear repeating in this place.

Despite widespread condemnation from student groups here such as the Union for Jewish Students, and cross-party calls for the Government to take action against the chair, it is telling that Ministers have so far refused to do so. That is important, because independence, propriety and accountability in public life absolutely matter. That is the point of new clause 4.

It seems that the politicisation of the Office for Students has not stopped there. Three months ago, the Secretary of State appointed Rachel Houchen, the wife of the Tory Tees Valley Mayor Ben Houchen, as a non-executive director on the board of the Office for Students, despite her having no direct experience in the higher education sector.

In that context, the comments made in Committee by one of the Government’s own witnesses, Professor Nigel Biggar, especially alarmed the Opposition. He agreed that

“the Government…given the legislation…wants a director who has a certain partiality of that kind.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 22, Q40.]

Even the Government’s own witnesses fear that the appointment will not be impartial: Dr Arif Ahmed and others made the point that the person “has to be impartial”.

In Committee, the Minister responded to a series of Opposition amendments by stating:

“There is no need to set up the bureaucracy of a non-statutory advisory body, as suggested by the amendment. The OfS is independent of the Government, so to do so would simply duplicate its role as set out in the statute.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 22 September 2021; c. 343.]

Well, clearly not. If the appointments to the OfS are meant to reassure us that the director will be impartial, they have lost all credibility. I dare say that the Minister will repeat the same line today, as she has done—blind to any suggestion of improvement, not least because this morning her Department advertised for the position even though the Bill has not even had its Third Reading.

[Sir John Hayes (South Holland and The Deepings) (Con)]

The hon. Gentleman is right that we had a useful, productive and positive exchange in Committee. I just want to correct the record for him because, knowing him well, I know that he would never mislead the House except inadvertently. Dr Ahmed—Professor Ahmed, I should say—is an enthusiastic supporter of this legislation and an enthusiastic supporter of the idea of having someone to oversee it. What he emphasised in his evidence and subsequently is that there should be impartiality in the exercise of that person’s work. This was not, as the hon. Gentleman suggests it is, about Dr Ahmed in any way questioning either the custom or practice associated with this legislation.

[Matt Western]

The right hon. Member was very involved in the Committee, and I thought that his contributions were robust and helped the debate along. I do not mean to misrepresent what Professor Arif Ahmed may have said, and he did say that this should be impartial. However, it was clear from what was said by Professor Biggar that that will not be possible if the Government want to do what they have set out to do. This is the point that I was trying to make, and if I did not make it clearly I apologise, but I have certainly tried to put it back on the record now.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

Is the shadow Minister suggesting that by previous political association, someone can never be impartial in any possible future appointment?

[Matt Western]

I do not want to suggest that all people come from a position of partiality, but some are more partial—and overtly partial—than others. That was the whole point of what I tried to illustrate in the case of the chair of the Office for Students, who was clearly appointed according to the preference of the Government at the very highest level and the Prime Minister. I think that that surprise appointment, along with the appointment of the board member with no previous experience, is a further illustration of just how rabid this has become in our politics.

[Emma Hardy]

The issue of impartiality in the appointment process was debated in detail in Committee. We had a long debate about the job specification, the requirements, the importance of previous experience and the need to appoint someone with previous understanding of legislation and law, and the fact that the process needs to be impartial. When we appoint the new chair of Ofsted, we do so not on the basis of whom the Prime Minister of the day particularly likes, but on the basis of whether that person has the competencies that the job requires, and that is the point of our amendment. If such a person is to be appointed, we need the best person for the job, not the person who is most popular with the current Prime Minister.

[Matt Western]

My hon. Friend made some telling and constructive contributions in Committee, and I entirely agree with her. If we want the best from any system of higher education and its regulation, competencies must be at the heart of that.

Have a look through the job description for the director for freedom of speech, Madam Deputy Speaker. Four or five specified qualities are sought. It is worth a read, and indeed I am thinking of possibly putting in for the job. What is most surprising of all—this arose both in the Bill Committee and during our witness sessions, as my hon. Friend and others will doubtless recall—is that despite the overriding impression that, given the sensitivity and importance involved and given how delicate some of these cases will become, legal experience would be a necessity, there is no requirement for that legal expertise. We must make the process involved in any public appointment much more robust, but that applies particularly to the appointment to a position as sensitive and delicate as overseeing freedom of speech on our campuses.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

The hon. Gentleman just came out with the throwaway line that he was thinking of applying for the job. Well, good luck to him, but do his own words not rule him out? If he is a member or supporter of any political party, he is by definition no longer impartial. I find that a ludicrous statement, by the way, as I would happily see members of the Labour party chair things because I would consider that they would be impartial, but the hon. Gentleman obviously does not.

[Matt Western]

Of course it was a throwaway line, but the job does pay £100,000. Perhaps the right hon. Gentleman has a second job, but I do not, unlike so many on the Government Benches who may have second jobs. It goes without saying, in my book, that that person should resign if he or she is a member of a political party—that a person in such a sensitive role should be seen to be unalloyed by association, because perception is so important in this context. Of course I made that remark in jest, but it does seem to be a staggering amount of money that the Government are throwing at this post.

--- Later in debate ---

[Michelle Donelan]

You were not even there.

[Matt Western]

I read every word. I read them with interest.

Only last week, the HEPI student academic experience survey revealed that a majority of students—64%—either agreed or agreed strongly with the statement:

“I feel comfortable expressing my viewpoint, even if my peers do not agree with me”.

Only 14% disagreed.

[Kim Johnson (Liverpool, Riverside) (Lab)]

Does my hon. Friend agree that the legislation is totally unnecessary and divisive, with little evidence to support the Government’s position that there has been a rise in intolerance and a creeping culture of censorship? The Office for Students’ own data showed that out of 10,000 events with external speakers, only six were cancelled.

[Matt Western]

I thank my hon. Friend for her contribution. Yes, there are issues out there, but that is about the scale of it. That is what has been uncovered in the surveys and analysis done by the Office for Students and by others. The scale is being exaggerated by the Government in order to make this legislation. It would be nonsensical to ignore shifting attitudes, and new clause 5 would allow for well-informed public policy guided by evidence rather than by Ministers’ latest lightning rod of choice.

Our amendments 19 and 20 would ensure that non-disclosure agreements or confidentiality agreements between those listed in the Bill and higher education providers did not inhibit freedom of speech, save where it was expressly agreed to between the parties to protect intellectual property. I will defer to my hon. Friend the Member for Birmingham, Yardley, with whom I have tabled amendment 19, to explore that further. She is a tireless campaigner on the issue and I commend her work in bringing it to the House’s attention on Report. I hope that the Minister, who has previously stated her commitment to stamp out that practice, will take on board our suggestions.

Finally, I would like to take this opportunity to push the Minister on some of the finer points of the Government amendments. The illegal invasion of Ukraine by Russia has rightly thrown a spotlight on the source of foreign investment and money in our public institutions. The misguided “golden era” ushered in by David Cameron and George Osborne in 2015, in which foreign nation states acquired substantial control over key parts of our national infrastructure, must come to an end.

The Government’s new clause 2 is much preferable to new clause 1, tabled by Conservative Back Benchers, particularly on the risk-based approach of the Government’s suggestion, but I have some concerns about new clause 2’s practical effect. The Minister suggests that it is her stated aim to reduce the data burden in the higher education sector. It is for that reason that I am interested in ascertaining how the new clause will be both proportionate and balanced. For example, the threshold at which providers have to report foreign donations is set to be determined by the Secretary of State in regulations, so it is disappointing that once again the Minister seemingly chose to brief it to The Times that the threshold would be set at £75,000—as she mentioned earlier—rather than allow the House to have a meaningful debate on what is appropriate. This is not on the face of the Bill. Interestingly, when we contrast this to the reporting threshold in the United States, which is $250,000—just over the equivalent of £200,000—the Government seem at risk of disincentivising foreign investment by implementing additional bureaucratic burdens.

I am also concerned about the scope of new clause 2, and I would be grateful if the Minister could expand a bit more on what is meant by “constituent institutions.” How much direct control does a higher education provider need to have over a constituent institution for it to fall under the remit of the new clause? For example, would Cambridge University Press be covered? My hon. Friend the Member for Cambridge (Daniel Zeichner) referred to that earlier. Relatedly, some of the requirements in the new clause are quite technical and may require fine judgment. It is likely that the value of non-monetary benefits—human capital and access to data, for example—will be difficult to ascertain. Could the Minister therefore detail what steps she is taking to ensure that universities are supported in determining the value of the partnerships they sign?

The Government’s proposal hands the responsibility for the new clause to the director for freedom of speech, making the director’s appointment all the more important. This adds further justification to our new clause 4, and I hope that Conservative MPs will consider that when they go through the Lobby later. Given that the regulator has limited prior experience of dealing with research partnerships or commercial arrangements, what additional resources will be provided to the OfS to handle this new responsibility?

Labour has tabled some important amendments in the same manner and spirit as we did in Committee. Let us remember that we debated a staggering 80-plus amendments in Committee at that time—it is a 19-page report—and now we have these few. Such a number would seem to underline just what a big dog’s breakfast the legislation is, and I am sure that those in the other place will spend many an hour realising what poor quality red meat lies at the bottom of it.

[Sir Iain Duncan Smith]

I am grateful to be called to speak so early, Madam Deputy Speaker. I want to focus my comments on new clause 3, tabled by my hon. Friend the Member for Rutland and Melton (Alicia Kearns) and signed by myself and others. The issue that I wish to touch on is the behaviour of some universities with regard to funding from countries that have the exact opposite view from ours on how freedom of speech should work. It was suggested earlier that we should be very careful about trying to insert ourselves into the funding of universities, but I think to the contrary to some degree, and I shall raise a case relating to that. I believe that when money is accepted from countries whose purpose is to undermine the nature of how we live our lives—including in regards to freedom of speech—that helps to pervert the processes of the institutions and universities.

One important question is whether there is a weakness in the Bill in one particular area, and that is to do with the Confucius Institute. I do not apologise for naming that particular organisation, because countries such as Germany, the United States and others that are quite close to us have already decided that that institute is not based around learning and academia and that it is in fact set up for an ulterior purpose, which is essentially to bully Chinese students in particular, but even other students, and to report back on the behaviour of many Chinese students studying in British universities. This has been evidenced in a number of countries. I would therefore have liked to see the UK Government, in line with this amendment and national security, take the power to stop such organisations where there is clear and compelling evidence that their purpose is not the stated purpose of delivering Chinese language and cultural instruction but enabling the Chinese Government to understand who is saying the right things and who is saying the wrong things.

To that extent, the Confucius institutes have even inserted themselves into schools. Many Confucius institutes have developed strong ties with local schools, and their provision of language assistance is seen as a very high-value contribution. It starts early now, and it extends.

--- Later in debate ---

[Matt Western]

I extend my thanks to all those involved in the passage of the Bill in Committee and on Second Reading, as well as this evening. I join the Minister in thanking Government Members, as much as those on the Labour Benches. I thank my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy), my right hon. Friend the Member for Hayes and Harlington (John McDonnell), my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle), my right hon. Friend the Member for North Durham (Mr Jones), my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) and others. They made constructive comments and contributions to the process in Committee, and I place on record my thanks to them.

As we come to the end of the Commons stages of the Bill, just under a mammoth 400 days since it was first introduced, it is clear that it has been something of a distraction from what really matters to the sector and students. We have just heard, in the urgent question on the Government’s failure to address the dreadful GDP figures, that the UK economy is in a dire position. We are in the midst of the worst cost of living crisis since the 1970s. Three out of every four students are currently worried about managing financially. One in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. On the doorstep in Wakefield, when I was talking about some of these issues, someone said to me, “What on earth has that got to do with the price of fish?” She is right. What has this got to do with the price of fish? Put simply, students are not exceptions to the rules of this crisis. The challenges faced by students are a reflection of what is going on in wider society, for sure. The Minister has responded by uplifting student maintenance by just 2.3% this year—2.3%—against a backdrop of an inflation rate pushing 10%, while at the same time ignoring any of the reforms to student maintenance proposed by the Augar review.

Meanwhile, the Government have imposed this piece of unnecessary legislation on the House, expending 30 hours of parliamentary time on this Bill, a Bill primarily searching for a problem—and I will come on to the point of what we would do. Seemingly, despite finding little time to tackle the cost of living crisis, the Government can find time to protect antisemites and people who, in the Ministers’ own words, are aiming to cause deep hurt and offence. Never mind that the Joint Committee on Human Rights’ report into freedom of speech at university in 2018 found there was

“no major crisis of free speech on campus”,

or that research conducted by the Office for Students found that out of over 62,000 requests by students for external speaker events in 2017-2018, only 0.01% were rejected by student unions or university authorities. The Minister seems determined to pursue divisive legislation to stoke culture wars for her own political agenda. Last week, when she addressed the Higher Education Policy Institute conference, she could not substantiate her claims in support of the Bill.

The Government like to present themselves as defenders of freedom of speech, but their actions tell us differently, including their plans to arrest noisy protesters and limit others, to restrict the right to vote through voter ID and their outright attacks on the BBC and plans to privatise Channel 4. The Government are interested in freedom of speech only if that speech is framed in their own image. The Minister says that Labour’s position is absurd. Free speech on our campus but no right to free speech on our streets is utterly absurd. I need not remind the House that Labour has always championed free speech. Indeed, it was a Labour Government who introduced the law guaranteeing freedom of expression.

The issue here is all about evidence, and the point I have just made about the Minister. That is why Labour has deep reservations about the unintended consequences of the Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in the academic community. When that happens,

“Governments lose faith in academics to protect freedom of speech and step in with legislation. It is what happened in 1986 and it is what is happening again”.

Not my words, but those of one of the Minister’s esteemed predecessors.

Conservative Members cry, “Well, what is Labour’s plan?” That is easy. We believe in adopting best practice off the shelf whenever we can. Our universities and the academics and teaching staff who work within them are world leading. It is no surprise, therefore, that there is a vast array of really good practice out there if the Minister only chose to look—the Manchester guidelines, the Chicago principles or Robert French’s independent review of freedom of speech in Australian higher education, to name but three. Countries around the world have similar issues, but the point is how they go about addressing them. If the Minister were really interested in promoting and protecting freedom of speech and academic freedom, she would encourage this approach across the sector. Such approaches would go a long way to fostering the healthy culture of debate on campus we all want to see. Sometimes institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective, more consensual approach to protecting freedom of speech on campus.

The Bill will expose universities and student unions to potentially lengthy civil proceedings brought by anti-vaxxers, holocaust deniers or hate preachers. Debates about freedom of speech are complex enough without Ministers creating a legal route open to abuse by vexatious claimants—suppression of debate through what is termed and recognised as lawfare. Despite the Minister repeatedly claiming that this new statutory tort would be an important backstop, there is no reference to that in the Bill. She has failed to put in place any mechanisms to prevent providers, including the 165 further education colleges that fall under the scope of the Bill or student unions, from falling victim to costly litigation. Today the Institute for Fiscal Studies has warned that Government spending on adult education and apprenticeships in England will be 25% lower in 2025 than in 2010. I need not remind the House of how costly lawsuits are. Every 1p spent by institutions defending such claims in the court will be 1p less spent on the student experience, on hardship funds, on new library facilities and on research and development. Those potential legal costs are not even included in the £50 million the Minister’s Department estimates the Bill will cost the sector over the next 10 years.

The public are desperate for the Government to focus on the immediate and very real priorities—the cost of living crisis, energy bills doubling in a year, 40% of households in energy poverty, demand on food banks rocketing and the worst performing economy in the G20 bar one. That country, Russia, is burdened by massive international sanctions. The Government want to spend precious time on pursuing this blatantly ideological legislation that will do nothing for the great British public. It is self-serving, and another demonstration of just how out of touch the Government are. Change should come from the ground up rather than the clunking fist of an embittered Government.

In terms of legislation, the Bill is about as big a Big Dog’s breakfast as it is possible to get. As it progresses to the other place, I very much look forward to many peers taking note of some of our suggestions for improvement. Other than Lord Wharton of Yarm, I believe there will be widespread opposition to the Bill from all parties and indeed the Cross-Bench peers. Given that we have had almost 100 amendments in total to this Bill, and it is only 19 pages long, they will have a lot of areas to choose from. Before it returns, I very much hope that the Government will have started to treat universities as a public good rather than a political battlefield.

Higher Education (Freedom of Speech) Bill

Matt Western Excerpts

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[Matt Western (Warwick and Leamington) (Lab)]

Let me start my remarks with the word “otiose”. Occasionally the words that frequent a debate come to symbolise the essence of that issue, and for our debate on Lords amendments to the Higher Education (Freedom of Speech) Bill the word is otiose. It is not a word I had had the privilege of encountering before, but it is a word that will forever be linked to this Bill.

This legislation is now almost worthy of two candles in the making and baking. It is almost two years to the day that the former Education Secretary but five laid the foundations for the debate we are still having on how freedom of speech should be protected on university campuses. I deeply regret that we are still having that debate, not least because every hour of parliamentary time spent debating the Bill and its provisions is an hour not spent debating the real issues faced by students and wider society.

[Danny Kruger (Devizes) (Con)]

I would be grateful for some clarity from the hon. Member. He says that the whole Bill is otiose, but does he not recognise any challenge to free speech on university campuses in this country?

[Matt Western]

We are talking about the Lords amendments, and what is otiose is the debate that was had in the Lords specifically about the tort I am about to speak to.

Every time I visit a university campus, I not only talk to vice-chancellors and senior leadership teams or tour a new teaching block, but insist on meeting students. I meet them, often on my own, to hear their concerns—the unvarnished truth of what is happening on our campuses—and, above all, to listen to their priorities. I can categorically say that not once has a student ever told me that the risk to freedom of speech on campus is their most pressing concern. Why would it be when three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 10% of students are using food banks to get by. These insights and statistics are all gleaned from a recent survey by the National Union of Students.

It is now a sobering 637 days since the Bill was introduced in this House—incidentally, the longest that any Bill sponsored by the Department for Education has taken to progress through the House since 2010—and during that period we have had three Prime Ministers and five Education Secretaries. The higher education brief has been bounced around the portfolios of five different Ministers like a political pinball but without the wizard—so much so that I find myself in the somewhat absurd position of debating a Bill about freedom of speech on campuses and academic freedom with a Minister for children, families and wellbeing.

[Sir Desmond Swayne (New Forest West) (Con)]

I know that students have all sorts of quite proper concerns about their budgets, but does the hon. Member not acknowledge that there is a tremendous problem with a form of totalitarianism that, instead of encountering opposite views and challenging them, simply tries to silence them? Is he not appalled by the fact that Balliol College—Wesley’s own college—banned the Christian Union, with all the dangers that Christianity might pose to those poor delicate students?

[Matt Western]

I thank the right hon. Member for his comments, and for the style and energy that he brings to such interventions. The cases the right hon. Gentleman has been talking about are exceptions. Indeed, Office for Students statistics show how few cases there have been. I was making a point about the amount of parliamentary time that has been devoted to this over two years when there are much larger issues at play on our campuses.

[Sir John Hayes (South Holland and The Deepings) (Con)]

The hon. Gentleman says these are marginal considerations. I do not know whether on the visits he has described—which sound picturesque, as well as being, no doubt, informative—he ever meets members of the University and College Union, because its survey on this matter found that 35% of academics self-censor for fear of the consequences of saying what they really believe.

[Matt Western]

I talk to members of all university communities of course, as the right hon. Member would expect: I talk to the senior leadership teams, UCU members, Unison members, those who are non-affiliated, and also students. I listen to all points of view across the piece. I am sure that occasionally the right hon. Member did not say what he would have liked to have said in a Cabinet meeting when in power, but that is the nature of how society works and there should be no difference between what happens on campuses and in wider society.

Anyone would think that the Minister’s colleagues have come to the fair conclusion that the Bill is more about political posturing than delivering on students’ priorities. Let me be clear for the record: this Higher Education (Freedom of Speech) Bill and its passage through both Houses is a product of a Government who are out of touch, out of ideas and out of steam. It has been a masterclass in how not to pass legislation.

[Lloyd Russell-Moyle]

Members opposite say the banning of the Christian union was a disgrace, but is there not a real danger with this Bill that all societies will be banned from campus because the university will not then have to worry about regulating them, so it will exacerbate the problem, not help it?

[Matt Western]

I thank my hon. Friend for his important intervention. He is absolutely right, and he and many others on our side made that point repeatedly in Committee about the unintended consequences of the Bill, which would have a chilling effect. Those are the thoughts of Lord Willetts and many others in the House of Lords as well, who made it clear that that would be the result, particularly among smaller institutions, that may be less familiar to certain Members across the House, which do not have the resource or capacity to be able to administer these measures.

Ministers are choosing to ignore the widespread condemnation of the tort from Members in this place, Lords, sector representative bodies, students, trade unions and academics. They are seemingly prepared to carry on regardless. As recognised by so many, the tort is a clause primarily in search of a problem, but perhaps that is the point for Ministers. It is otiose; that is to say it serves no practical purpose or result.

Put simply, the objections to the tort raised in the other place are damning. I am well aware that this Government do not value expertise or experts, but, my God, they should. Their predisposition towards certain right-wing think-tanks has cost this country dear, and in terms of legal matters, or indeed the tertiary education landscape, the intellectual heavyweights in the other place, comprised of former vice-chancellors, current chancellors, former Supreme Court justices, ex-Masters of the Rolls and many former Education Secretaries and universities Ministers, have a brain quotient that is certainly higher than two. Their collective experience dwarfs that of the current Education team, and for that matter my own experience. It is for that reason that I take very seriously the warnings and advice given by peers in the other place, and, importantly, not just from one party but from across the House. There is perhaps no other clause in the Bill that provokes such widespread condemnation as clause 4, allowing individuals and groups to sue universities for losses resulting from a university or student union failure to secure their free speech duties.

Speaking of brains, Lord Willetts, a former Minister for higher education, believes that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble. In other words, the prospect of vexatious litigation will have unintended consequences.

Lord Grabiner, an eminent jurist, went further and feared that the clause could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That may all be well and good for well-funded free speech litigators, perhaps with the unlimited support of the Free Speech Union, but for small institutions and higher education providers in particular, it will be crippling. He poses the question we all want the answer to:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 210.]

Perhaps the Minister can give us a satisfactory answer today.

Even if we agree with the principle of the statutory tort, it is totally unworkable in its current form. The ex-Master of the Rolls, Lord Etherton, identified two glaring deficiencies in the tort as it stands. First, it is not clear what level of loss or damage is required for a successful claim. Secondly, it is also not clear what category of persons is entitled to make a claim. Lord Etherton concluded that

“it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.” —[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 706.]

That leaves the tort as both undesirable and unworkable.

As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counter- productive, as I was saying a moment ago. The Russell Group has reiterated its warning that:

“Managing the potential for litigation would…likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.”

In other words, we could have the worst of both worlds: no liberalising effect on free speech on campus, but with all the associated costs of legal action.

One student union I heard from recently informed me that there is currently no budget allocated for paying for legal action. Legal advice would need to be paid for out of its reserves. To make matters worse, it claimed that it would also be impossible or difficult to obtain insurance for such legal action. In a sense, therefore, student unions will be doubly bound, being required to build up large enough reserves in preparation for fighting such lawsuits, while also having to engage in expensive legal battles. Using that money will inevitably detract from student welfare budgets, SU facilities and the much-valued nature of campus culture. I return, once again, to the ever-prescient question posed by Lord Grabiner in Committee in the Lords:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”

[Jeremy Corbyn (Islington North) (Ind)]

My hon. Friend is making an excellent contribution to this debate. Does he agree that the problem is that this will diminish the campus experience and the quality of university life for many students, and that those who can afford to relocate their activities to expensive private locations outside campus will do exactly that, while the rest will essentially be in fear of legal action and will therefore not be ensuring that there is a challenging intellectual environment on all our campuses and in all our universities, as ought to be the case?

[Matt Western]

I thank my right hon. Friend for his intervention. He is absolutely right that these sorts of events could go underground, with restricted access, and, because they will be displaced off campus, they will be beyond universities’ jurisdiction.

I could go on and on about the issues with the tort, but lords from across the House of Lords made them absolutely clear. Consistently attacked from numerous angles, from numerous sources and for numerous months, the Bill has taken two years just to get to this stage. It is flawed in so many ways, although that increasingly seems to be the hallmark of this Government. Even the Minister in the Lords, Earl Howe, was prepared to concede on making the tort a remedy of last resort and limiting it to those who have suffered a loss. In what is perhaps the shoddiest part of the Bill’s progress so far, the Minister before us is now asking us to disregard her own counterpart’s suggestions for improvement in the other place, in the light of no new evidence. If it did not have such potentially damaging consequences for students and universities, it would be ludicrous. It is for the reasons I have just outlined that Labour will oppose the inclusion of this undesirable, unworkable and counterproductive tort in the Bill in the interests of students, staff and even freedom of speech itself.

--- Later in debate ---

[Claire Coutinho]

I thank all Members for their contributions and particularly eloquent representations. They have shown how important it is to the wellbeing of our society that we can agree to disagree, that we can debate controversial and unpopular ideas, and that we recognise that the only way to change people’s minds is to win arguments, not to silence them.

I have listened to the concerns about the tort. Those who speak about a chilling effect speak as if there is not already a chilling effect on campus. That is why we think it is such a vital legal backstop. The hon. Member for Warwick and Leamington (Matt Western) made the astonishing if not surprising claim that the Bill is not needed at all. He may wish to speak to his party colleague the noble Lord Collins of Highbury, who has said that, through the dialogue and discussions that he has had as the deputy Leader of the Opposition in the other place, he accepts the need for the Bill. I suggest that the hon. Gentleman has those discussions himself.

[Matt Western]

I am sure that Hansard will have recorded that when I used the word “otiose”, I was talking about the tort.

[Claire Coutinho]

I think there was some significant questioning of the Bill, and I suggest that the hon. Gentleman goes to speak to Lord Collins of Highbury in the other place. I commend the Government’s position to the House.

Question put, That this House disagrees with Lords amendment 10.

Higher Education (Freedom of Speech) Bill

Matt Western Excerpts

Consideration of Lords message
Tuesday 2nd May 2023 Commons Chamber

[Claire Coutinho]

I thank my hon. Friend, who has had his own experience of that in recent weeks. This Bill will not only strengthen the duty of our universities to ensure that they are protecting freedom of speech on campus, but create a new director of free speech, who will champion the cause, and strengthen the powers of the OfS to deal with those who breach that duty. I believe it will speak to my hon. Friend’s real concerns.

[Matt Western (Warwick and Leamington) (Lab)]

The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.

Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.

[Sir Julian Lewis]

It is a very serious step for anyone, particularly a student with limited means, to go to court and seek an injunction. Surely the hon. Gentleman can see that no one will do this on a whim. They will do so only when their rights are being seriously infringed.

[Matt Western]

I have a huge amount of respect for the right hon. Gentleman, as he knows. Of course I would be concerned about the case of an individual student, but I fear more generally about the tort being a channel for more vexatious claims by well-funded individuals or organisations, and where that may take us. I will expand on that point.

Where issues arise, Ministers have shown no interest in dealing with the underlying causes. I fear that this is yet another example of Ministers leaning in and exploiting cultural divides, opting for punitive, confrontational tools such as the tort before us. I have repeatedly stated the plethora of options open to the Government: the Chicago principles, the Robert French report, Universities UK’s guidance, internal processes and the Manchester and King’s guidelines—all of which would do a better job at resolving issues whenever they arise.

[Miriam Cates (Penistone and Stocksbridge) (Con)]

The hon. Gentleman mentions the cost of going to court and that that will be prohibitive for students and academics, but surely the opposite is true. At the moment, the only provision that students and academics have in the case of their free speech being cancelled is judicial review, which costs tens of thousands of pounds. The whole point of introducing a tort in a county court, for example, is that it is relatively cheap and relatively affordable for anyone.

[Matt Western]

As the hon. Member will know, the tort has been left in the legislation. A compromise was reached in the other place, so that is in the Bill, as far as we know. Our point is that we do not believe that an injunction is at all necessary. Indeed, it will complicate the process for all involved. The Minister will know that I was trying to reach her last week. I was keen to discuss this issue, because I wanted to seek some sort of understanding about what was going on, but for some reason we were not able to speak. I hope that we can do that in future, because I think that will circumvent problems.

To be fair to the Minister, she is clearly aware that colleagues have strong views on the issues linked to the tort—she said as much in her “Dear colleague” letter last week. Perhaps it is worth reminding ourselves of some of those views. Lord Grabiner, an eminent jurist, said that the tort could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That is the point I was making to the right hon. Member for New Forest East (Sir Julian Lewis). Lord Molyan, a Conservative peer, stated:

“the Government do not know what they want to do about this”.—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1692.]

Universities UK, which represents 142 universities, stated:

“our position remains that the tort should not stand as part of the Bill.”

It feels that the original amendments amount to “sensible and acceptable compromise”. It was understood across the sector and in the other place that we had reached a point where the system was workable—they had reservations, but said they would accept the compromise. Given the Minister is clearly aware of those strong views, why has she not paid heed? In her letter, she encouraged us all to support the Government’s motion today, owing to

“limited legislative time to progress with further changes”.

It is pretty ironic for her to invoke the tight parliamentary timetable to push through her regressive motion, given the Bill has benefited from two parliamentary Sessions. We are here today, two years on, only because the Minister has reneged on the position accepted by Government Ministers in the Lords.

In her “Dear colleague” letter, the Minister claims that her motion provides the necessary reassurances on the issue, but she fails to mention that reassurances were already provided by Earl Howe. A satisfactory compromise —supported by Labour—was reached. Indeed, it might be deemed a model case in how to resolve competing interests, reminding us of the shared values we have in common:

“a commitment to freedom of speech and diversity of opinion.”—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1685.]

Those are the wise words of Lord Willetts. Yet with this motion, the Minister seems to be reopening Pandora’s box, prioritising tabloid headlines about a permanent crisis in freedom of speech on campus, over and above cross-party consensus and good legislation.

On the two planks of the Government amendment, the first specifies sustained loss as including non-pecuniary loss. The first concession the Minister has made to her Back-Bench rebels is to put in the Bill that “loss” extends to non-pecuniary loss, such as injury to feelings and reputational damage. I understand that was always assumed to be the case by the Government, but the Minister felt compelled to assuage the concerns of Back-Bench Members that such damage could be excluded by the courts.

If non-pecuniary damage is to be a loss recoverable under tort in freedom of speech claims, the question arises as to how the loss will be calculated. That has important consequences for the costs of litigation for universities and student unions. The Minister will no doubt say that that is a matter for the courts but, in the interest of clarity, I would welcome the Minister setting out her understanding of how damages might be awarded for non-pecuniary claims in freedom of speech cases.

For example, will the director for freedom of speech and academic freedom or the Government be setting cost guidelines for the courts to follow; or is it the Minister’s expectation that the courts will follow pre-existing costs guidelines, such as those used in discrimination cases? It is worth flagging that, if the courts were to follow such guidelines, the most egregious cases of non-pecuniary loss arising from a breach of a freedom of speech duty could cost a student union or university up to £56,200 per individual claim, in addition to any further litigation costs, which I am reliably informed range from £75,000 to £125,000.

Members of the House may want to consider, in the context of their local higher education providers, how such costs may detract from the student experience, given the financial pressures across the entire sector. Such monies would be better used to support hardship funding and welfare support, given the rocketing number of mental health cases they are seeing.

The second plank relates to the opt-out of the last resort mechanism for injunction-only claims. The amendment creates an exemption from the last resort mechanism put in place by the Lords for claims exclusively seeking an injunction. It is worth noting that the underlying purpose of the last resort mechanism was to prioritise university internal processes, the Office of the Independent Adjudicator for Higher Education, the Office for Students Free Speech Complaints Scheme and the director for freedom of speech and academic freedom. The Government amendment potentially paves the way for that purpose to be inverted.

In effect, the amendment creates a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach. Was that unintended or intended? Regulatory investigations and internal processes rightly and understandably take time. When competing freedoms are at play, such care is to be expected. While the circumstances in which a court may grant an injunction could be narrow, for vexatious claimants with deep pockets, the amendment invites them to try their luck.

I note Lord Willetts sought to ensure the tort was “sensibly targeted” through his amendment, presumably to limit such vexatious claimants. Does the Minister believe her amendment opens the scope of the tort back up again? What justification does she have for doing that? Has the Minister met Lord Willets, a Conservative peer, to discuss this? I am sure he would welcome such a discussion. As for process, the Minister claims she is

“confident that this will not create a further burden on the courts”.

She plainly omits reference to the burden on institutions and student unions.

We all know that litigation is generally expensive and time consuming. It can soak up management bandwidth, detracting from the ability to focus on more important issues, most obviously the staff and student experience. Anything that risks an increase in the use of litigation in this context is therefore to be greatly cautioned against. In that vein, I urge the Minister to provide greater clarity on how her amendment will keep vexatious claimants at bay, will ensure the protection of institutional autonomy and regulatory processes, and will not expand the scope of the tort to the detriment of the student experience.