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

Matt Western Excerpts

Monday 20th September 2021 Public Bill Committees

[The Chair]

Before we begin, I have a few announcements. I encourage Members to wear face coverings except when speaking or if they are exempt. That is in line with the Commission’s recommendations. Hansard colleagues would be extremely grateful if Members could email their speaking notes to [e-mail]. Please remember to switch electronic devices to silent. Tea and coffee are not allowed during sittings. I also ask Members to declare any interests before we resume line-by-line consideration.

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

I wish to place on the record the fact that my wife works at a university.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I am an honorary fellow at Birkbeck College, University of London.

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[Michelle Donelan]

I am afraid I am going to end there, and give the right hon. Gentleman an opportunity after that.

[Matt Western]

I was not expecting to speak so soon; I thought the Minister might speak at greater length on this.

[John McDonnell]

May I ask my hon. Friend the same question, then, and maybe the Minister can intervene on him?

[Matt Western]

I would love to hear from my right hon. Friend.

[John McDonnell]

I want to know who has standing in this matter. In my hon. Friend’s interpretation, is it the same person or people who have standing in the complaints process, or is it anybody? I might have got this wrong, but I cannot identify the breadth or narrowness of who has standing in these cases.

[Matt Western]

I am sure the Minister has heard my right hon. Friend’s question. It is certainly not clear to me who has standing, and I hope she will come to that. It is quite clear from the questions that have been posed by my colleagues that there is so little clarity about how this is going to work. I have not seen any reference to the Charity Commission, for example. Where does the Charity Commission fit into this? Surely it is part of the process for students to refer a complaint to that organisation, but there has been nothing about it in any of the papers from the Government that I have seen, nothing in debate, and nothing, so far, during two days of debate in this Committee.

[Emma Hardy]

It is worth pointing out that what is proposed in the Bill does not come cost-free. The impact assessment estimated that the cost of compliance with the Bill would be around £48.1 million. Bearing in mind the points I have made previously about the overlap with the Office of the Independent Adjudicator for Higher Education and the confusion that some students will have, it seems fairly ludicrous that the Government wish to spend £48.1 million replicating something that already exists in another form.

[Matt Western]

I thank my hon. Friend for her intervention, and she is absolutely right: this is not just something that already exists, but something that exists relatively cost-free. The cost of £48.1 million that she has mentioned—which is the Department’s estimate of what the Bill will cost student unions and universities across the country—should not be ignored.

We sought to remove the whole of this clause through amendment 30. We are of course disappointed that it was not accepted—although I sort of understand why that was the case—but I am sure that the House of Lords will be extremely interested in the clause. While we do not believe this Bill is necessary, we have been doing our very best throughout this process—as my right hon. Friend the Member for Hayes and Harlington said last week—to be constructive about mitigating the problems and costs of what we think will be a disastrous piece of legislation, in terms of its impact on our students, student unions and universities. However, we feel that this clause is a huge mistake, because as we have heard, it enables individuals to seek compensation through the courts if they suffer loss as a result of a breach of the freedom of speech duties.

In its submission, the Russell Group—as so many have said—puts it like this:

“The lack of clarity over how a new statutory tort offering a route to civil legal claims around free speech will interact with existing internal and external complaints procedures”

is absolutely—well, it did not say “shocking”, but I think the Russell Group is very frustrated and concerned about it. It also said:

“At present, internal grievance and complaints processes offer staff and students significant opportunities to seek redress when they feel their right to free speech has been infringed. These include comprehensive rights to appeal. In the event internal processes do not conclude in a way that satisfies an individual, then students can take their grievance to the Office of the Independent Adjudicator (OIA)”—

a point made by my hon. Friend the Member for Kingston upon Hull West and Hessle. The Russell Group also said:

“Where free speech concerns interact with employment decisions, university staff have recourse through employment law and tribunals.”

It is pretty clear that the system was working. Perhaps it could have been tightened up—maybe there could have been better practice across different institutions—but I see that as a failure by the Government to engage with the sector and the OIA, and to work with the Charity Commission and all the other representative bodies to bring about a better or a tighter system, rather than resorting to this clunky Bill, which is so onerous, burdensome and potentially hugely costly to the sector.

We are against this clause for three reasons. First, as I have said, we believe it is unnecessary. Secondly, we believe it could create a culture of lawfare, as it is described in legal circles, that will take vital money away from students and researchers. Thirdly, we believe that it will ultimately restrict free speech, rather than the opposite: it will be the inverse, an unintended consequence, as we have talked about on so many occasions.

Let me start with the point that this clause is unnecessary. The creation of the tort, as has been said in the opening interventions, duplicates other avenues for complaints. Students and staff have already raised complaints with their institution, which will be dealt with via an internal complaints process. Students can then complain to the Office of the Independent Adjudicator. So far, so good.

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[Emma Hardy]

It is worth pointing out what the remedies are when somebody brings a complaint forward. If the OIA upholds a complaint, it has a variety of remedies at its disposal—academic appeal, or disciplinary or fitness to practice procedure. Under the Bill, if the complaint related to freedom of speech, the OfS can offer a remedy to the student only for the freedom of speech concerned, as opposed to the OIA, which can offer a remedy for any aspect of the complaint that is upheld. Basically, the OfS is offering a narrower source of remedies than is currently available under the OIA. If anyone is confused listening to me, then, my goodness, just imagine how an 18-year-old undergraduate would feel trying to grapple with what the best route forward is for them.

[Matt Western]

Exactly. Where is the flow chart to help someone navigate through this? It is certainly not clear to any of the representative bodies—the student unions and so on—and it is going to be impossibly difficult for the average 18-year-old or 19-year-old to comprehend.

[Emma Hardy]

In its evidence, the OIA gave an example where a group of students may have the same complaint regarding freedom of speech, but go down different routes: one down the OfS route, one down the OIA route, and one down the court route—maybe because they have enough finances behind them. Each of them ends up with a slightly different solution to exactly the same problem. That is the reality of the Bill. I fail to see how enough guidance could provide clarity for each individual student. We could have a very varied system, where individual students do not know where to go and complaints are not upheld properly. Alternatively, in the case of the OfS, students make a number of complaints and only the freedom of speech issue is dealt with, not the other, resulting issues that could be to do with the way that the course is being taught. It is as confusing as anything.

[Matt Western]

I will address those points in due course. It is the possibility of students going through different bodies that is quite alarming and that will cause even more complication and complexity.

To go back to the point I was making about the processes, the then Secretary of State for Education himself said during the Second Reading debate that although

“this legal route is an important backstop, we do not want all cases going to court where they could otherwise be resolved by other means.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]

I think that is what we all want, but it is certainly not clear to any of us how that is going to work in practice, particularly given the several bodies that can advise and take cases from students. The Bill as it stands does not ensure that the legal route is a backstop. During the evidence sessions, we heard from Smita Jamdar of Shakespeare Martineau—the only lawyer—who was called on by the Opposition. She gave striking and clear evidence and advice. She said:

“Built into certain types of court proceedings—judicial review, for example—is the expectation that you will first exhaust all alternative remedies, and that would include any internal remedies available under the complaints process. However, that is not the case in statutory torts; you could bring a claim outside the processes”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 50, Q93.]

That must be a real concern: the simple fact that you can bypass all the processes and go straight to court. The clause should therefore be removed or at least amended to reflect the Government’s own views on how they wish the tort to operate.

My second point is on facing the prospect of “lawfare”. We have wider concerns that the Bill will create a culture of lawfare against universities. Clause 3 does not restrict the tort to those who personally feel that their speech has been restricted or those who have been directly affected. It therefore risks opening up vexatious claims against universities from those who seek to do them harm. As Dr David Renton and Professor Alison Scott-Baumann said in their written evidence, the Bill means that,

“any lecture, seminar or guest speech could lead to a lawsuit.”

They pointed out that the statutory tort element of the Bill will open the floodgates to civil litigation and forms of lawfare, most likely from well-funded American groups on the hard right, or perhaps groups such as the Chinese state Communist party.

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

I find the hon. Gentleman’s argument—I am being polite—paradoxical, or perhaps even contradictory, if I am being slightly less polite. On one hand, he and other critics of the Bill say that there is not a problem and that the Bill is not necessary, because these matters are not as numerous or severe as some suggest, despite our witnesses claiming that there is a culture of fear and a climate of silence. If there is not a problem, where does he imagine this welter of complaints will spring from? If there is not a problem and universities are dealing with these matters satisfactorily internally and settling people’s concerns, it will be hard to imagine the effects he set out in his remarks.

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[Matt Western]

I thank the right hon. Gentleman for his intervention. I will come on to a few examples of how that might play out, because I have given a lot of consideration to the extent of this issue. Given the evidence of certain witnesses in the evidence sessions, there are concerns out there—certain concerns are greatly exaggerated, but there are concerns. We have to take those on board, which is why we are approaching this in a constructive way.

As my right hon. Friend the Member for Hayes and Harlington said, the real concern, which I would like to believe that the right hon. Gentleman would accept, is that we will see ambulance chasers, for want of a better term. There will be people putting their cards around student campuses who are looking for opportunities to be mischievous and to make money out of situations that can be manufactured on our campuses.

[Emma Hardy]

Further to my hon. Friend’s point about the “no win, no fee”, “where there’s blame, there’s a claim” culture we have in other areas of law, there is no limit on how long ago a perceived breach of freedom of speech took place. The clause refers to a “person”. There is no definition of who that person is. Does it relate to academic staff or students? How long along were they at the university? Are they someone in the vicinity who happens to feel infringed by something that has happened on the campus? It is such a broad definition. There is no limit on how long ago something could have happened and who could bring these claims forward.

[Matt Western]

I will come on to that. We have an amendment to that effect, which would ensure that this is not some kind of free-for-all and that we do not open the floodgates, as described by Dr Renton and Professor Scott-Baumann.

[Fiona Bruce (Congleton) (Con)]

I do not know whether the hon. Gentleman has ever been involved in litigation, but I have—not in a professional capacity, as a solicitor, which I am, but as the subject of litigation. It is traumatic and personally debilitating not only for the individual but for their family. We need to remember that most people do not enter into litigation lightly, and it is unlikely that these young people will do that. I think they will think very seriously and carefully before going to court to make their claims.

[Matt Western]

I absolutely take on board the hon. Lady’s point. I can answer her question honestly, and say that I have been involved in litigation at least once. I agree that young people would not enter into it lightly, and nor would academics of older years. It can be utterly corrosive to the individual and quite self-destructive; it is the sort of thing that people would want to avoid. My point is that some people will, through organisations, seek to engineer circumstances that play into their machinations on campus. We have to be extremely careful of that, because those people can be incredibly well-funded, as was made clear in the point I mentioned earlier.

[John McDonnell]

I am sympathetic to what the hon. Member for Congleton has said. However, we have been there in the past, with organisations and rich individuals funding cases. I can remember cases being funded by the late Sir James Goldsmith—I was involved in one—in which action was taken against a range of individuals and organisations, to step up to the plate on a number of issues of his concern which, at the end of the day, I do not believe had any merit. His son is a definite improvement on that, if nothing else.

[Matt Western]

Yes, that is a good example of what can happen where individuals or organisations are so well funded. It can be really overwhelming and frightening to an individual or organisation when they are faced with that. Universities will be extremely concerned about this. Local government is shying away from taking on developers or other organisations because it does not have the funds. It cannot justify to the public defending whatever position it has had to take for good, democratic reason. However, it then finds itself up against it because the developers have much deeper pockets.

[Mr Kevan Jones (North Durham) (Lab)]

In a lot of cases, won’t the universities settle anyway just to stop litigation, so money will be going out of the university sector? But my concern, which I raised with the witnesses, is that state actors such as the United Front, which is active on our campuses promoting the Chinese Communist party’s philosophy, have very deep pockets to fund whatever they want to fund.

[Matt Western]

I thank my right hon. Friend for his point. I know that he is very well informed on that issue. There are bodies out there that would wish to do institutional harm on our campuses. But there is also the reputational damage that these actions can cause. Many will seek resolution out of court, and that will become more and more obvious. It is a real concern that this will see haemorrhage much-needed funding away from our universities and student unions.

Universities UK made the point that these measures will bring about a “compensation culture”, and it was not the only one. Many have said that the great fear is that they will lead to the rise of spurious or vexatious claims and that the Bill provides little protection from a funded and co-ordinated campaign, which could be launched against several institutions, as my right hon. Friend the Member for North Durham alluded to.

Many universities and student unions are concerned that they will spend significant time and money fighting these battles. They have just emerged from the pandemic; funding is challenging, and the viability of student unions, in particular, is threatened. The prospect of the £48.1 million cost—of providing information to students, of the reporting and of the potential claims—is extremely concerning.

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[Emma Hardy]

I did not have time to table an amendment, but I hope that the Minister and other Government Members will look at whether we should include in the Bill FE student unions as well, bearing in mind the resources of FE college student unions. I refer the Committee to the evidence given by the Association of School and College Leaders. I hope this is something that the Minister will take away to look through, because if the legislation is too complicated for junior common rooms, surely it is too complicated for a small FE college.

[Matt Western]

Costly and burdensome, is what we were told on Thursday.

Institutions and student unions would therefore become risk averse and avoid inviting speakers, for fear of financial repercussions if they are subsequently cancelled. As a result, there would be fewer speakers, fewer debates and, we believe—not just us, but the whole sector believes—an overall reduction in free speech.

Let me give some examples and come back to the point put to me by the right hon. Member for South Holland and The Deepings about what that might mean. I was reading about the former Home Secretary, the former right hon. Member for Hastings and Rye—I never had the opportunity to speak to her in the Chamber, although I spoke to her outside it, and I had time for her. She was due to speak at the UN Women Oxford UK society in March 2020, and I remember her response when she was barred from speaking, following a vote in the UN Women Oxford UK committee on her role in the Windrush scandal. The invitation was withdrawn an hour before she was due to speak. Those sorts of things have happened through the decades on campuses and across our universities. It was the society’s decision. Would I have done it? I would not have done that; I would have seen it through. I would much prefer to hear from someone and to put the point to them face to face. Sadly, that was the society’s decision.

What would happen with the tort in the Bill? What would Ms Rudd, the former right hon. Member, do? Would she take the society through some legal process, or threaten to do so, or would she just walk away? Rather than getting involved in some sort of complex legal process, which might have damaged her reputationally and made everyone look stupid, I imagine she would have walked away. Certainly, that is what I would have done. What happened, however, which I think is telling, is that the University of Oxford deregistered UN Women Oxford UK from its affiliated societies and asked it to apologise to Amber Rudd. The university concluded:

“We have determined that the cancellation of this event was not carried out in accordance with university procedures, codes of practice and policies, in particular that of the freedom of speech.”

I believe that was handled very well by the university and perhaps not so well by the society itself.

What damage was caused to Ms Rudd, other than in terms of her time and her train fare or whatever it was? Was her reputation damaged? I do not think that it was. In fact, even her daughter tweeted:

“Can not believe mum was ‘no-platformed’ at my old Uni yesterday. Mum doesn’t need the platform and travelled to talk for FREE”—

good for Ms Rudd, travelling to talk for free. It is a shame that the society did not allow her to speak on campus—though of course that was their prerogative.

Let me speak next to the case of the academic Selena Todd, who was dropped from the Oxford International Women’s Festival hosted by Exeter College for her views on transgender rights issues. That decision prompted the OfS to warn that there is a legal requirement on universities to take steps that are reasonably practicable. Again, I think it was a shame that she was dropped—these sorts of debates should be had—but it was the organisers’ decision. I believe, as I think do most of us, that there is good practice out there; we keep citing it. We heard about the work of Professor Jonathan Grant of King’s College London, who has created a collaborative, co-operative process between the students’ union and the university to ensure that all the steps are gone through before the invitation goes out, so that there is no subsequent problem and the person can be heard.

The third example that I want to raise—

[Sir John Hayes]

Before the hon. Gentleman gets into his third example, I would like to go back to his second example; otherwise, I shall lose count of his examples. The point about the former Home Secretary, Amber Rudd, is not the inconvenience to her. Of course, one regrets the fact that it might have wasted her time and cost her her train fare, but that really is not the point. The point is that her opinions, which, broadly speaking, we take to be mainstream, were, in effect, prohibited. That is not compatible with a university environment that is, one would hope, there to stimulate debate, discussion, challenge and argument. It is not compatible with a free and open society.

[Matt Western]

We have tabled amendments proposing how universities and student unions should find their way through that, and we will come to some of them later.

To finish, I want to raise the much-cited case of David Irving, who was uninvited from speaking to the Oxford union as long ago as 2001 because of pressure from academics and members of the student union, who were furious that he was being given a platform for his views on the holocaust. A High Court judge had previously described him as “racist” and “antisemitic” during a libel trial. During the evidence sessions, one of the witnesses hypothesised:

“If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 102, Q211.]

[Lloyd Russell-Moyle]

The contradiction in using that example is that the Bill would not make any difference, because it excludes the Oxford Union. The very thing that Government Members are worried about will not be dealt with, because the Bill excludes the bodies that have done this in the past and includes bodies that have never done it, such as further education college student unions. It is a blunt implement pointing in the wrong direction.

[Matt Western]

My hon. Friend is absolutely right. The examples that are being cited by lobbyists—perhaps more on the Government side—of where there is perhaps an issue are centred around those bodies. Currently, as we debated on Thursday, they are not included in the Bill.

We believe the tort should be scrapped. We believe it is unnecessary, encourages lawfare against universities and will ultimately end up restricting discussion and debate on our campuses. At the very least, we believe it should be amended with maximum fines. A threshold of harm should be introduced, and it should be restricted to those who are directly affected.

[Emma Hardy]

FE colleges would love the luxury of having a high-profile, well-known speaker come to visit them; that would be a wonderful problem for them to have. As I am sure the Minister is aware now that she has both briefs in her grasp, however, that is often hugely difficult for them. To exempt JCRs and not FE colleges—I am not aware of a single incident involving free speech ever having been raised at an FE college—seems slightly absurd.

[Matt Western]

Indeed. It is important to repeat just how burdensome the measure will be for colleges. For decades, they have rarely had issues, but the burden is now being placed at their door.

[Lloyd Russell-Moyle]

The difficulty with the inclusion of FE colleges is that, broadly, they are regulated by Ofsted; they have a completely different framework; and they have no relationship with the Office for Students, except in relation to some of the courses that they may run, although they usually do that via other affiliated institutions. Including FE colleges therefore brings into their sphere a whole new regulator that they have never dealt with before, creating even more bureaucracy and confusion.

[Matt Western]

My hon. Friend is absolutely right: there is yet another body to stir into the mix. We have not heard from the Government about how that will play. It further underlines the extraordinary complexity that the legislation will bring to our campuses, colleges, student unions and HE providers across the UK.

I repeat that all bodies mentioned the need for an exhaustive process, so that every sinew is strained to ensure that any complaint goes through the university, the Office of the Independent Adjudicator and perhaps the Charity Commission before it is escalated. There is an absolute desire—it has been demanded—that the tort should be a backstop to the existing grievance process. Otherwise, people will rush to lawyers’ doors, or the lawyers will rush to them, to seek damages at great expense to individuals, and to SUs and institutions in particular. On Second Reading, the previous Secretary of State, the right hon. Member for South Staffordshire (Gavin Williamson), claimed that the tort would be a backstop, but the Bill, as drafted, does not make that clear.

We believe that the clause is unnecessary. We fear that it will encourage vexatious claims and create additional bureaucracy, and we have talked about the £48 million that it will be incumbent on universities and SUs to fund. We believe that the clause will cause confusion to claimants about their various routes to redress through Ofsted, the Charity Commission, the OIA, the OFS and the universities themselves. The clause will also undermine existing disciplinary procedures. For those reasons, we oppose it and wish it to be removed in its entirety.

[Lloyd Russell-Moyle]

We have heard why the clause is dangerous, and I will talk briefly about two reasons why it should be opposed.

First, I will touch on the real chilling effect that I believe the measure will have on institutions. It is a lawfare charter, or an ambulance-chasing lawyer’s charter. Lawyers will go around knocking at institutions’ doors, and they will say to those three students who did not fill in the paperwork correctly to register their student club, “Do you think you’ve been slighted?” because the clause gives them the right to seek damages if the club is not registered. Those people, not the students or staff, will push the boundaries in all different directions.

There are people out there who look to make a quick buck when law is bad. In the past, we have had to rewrite law in this place and remove such opportunities because we had allowed massive loopholes. The easiest and cleanest way to stop that from happening is by following the evidence that we have heard, according to which the tort should be a backstop, not a front foot. At the moment, the Bill allows it to be a front foot.

The Amber Rudds of this world may not go running to the lawyers, but lawyers may come knocking on the door of a poor student or someone on a casual contract who is struggling to pay their rent. Large numbers of university academics struggle to pay their rent day in and day out, because their occupation is a very poorly paid one with low job security, except at the very top. We all have experienced something similar after car crashes, and it drives people crazy. It drove me crazy when I had a little prang at Bradford airport, which did not even cause a dent on either car, because for months afterwards I had lawyers ringing me and saying, “Do you want to claim compensation for whiplash?” The crash caused no damage to me whatsoever, but if I had been struggling to pay my rent or make ends meet, that would have been a temptation. I am afraid this clause opens up that possibility.

The first way to stop that happening is by requiring people to pursue the complaints procedures internally. I do not understand the Minister’s point about an external speaker being unable to complain using an internal process. In fact, we heard how an hon. Member in this room had managed to complain, although it was difficult. Perhaps external people should be able to complain internally. I think most people would like there to be a clear complaints process for external speakers as well.

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The Minister might find this amendment altogether more agreeable. Last time, I said that I anticipated her seizing on my amendment with enthusiasm and, frankly, I was a little disappointed that she did not. The response was rather less fulsome than perhaps I had hoped. This is a more modest suggestion; it is in line with her concerns about bureaucracy and in keeping with the idea of the existing practice of the OfS, but it would provide more structure and the prospect of greater consistency. I am hoping that both the shadow Minister and the Minister will recognise the amendment as a helpful addition to the Bill, entirely in the spirit of its purpose, but one seeking to improve it in terms of compliance and consistency. On that basis and awaiting that enthusiastic response, I will leave it there and reserve the right to speak again and decide whether to press my amendment.

[Matt Western]

I wish to grab the amendment with some enthusiasm, but maybe in the wrong direction from what the right hon. Gentleman is hoping for. I do worry about bureaucracy, particularly among smaller institutions, and the general cost and responsibility and burden that falls with it. As I said the other day, I believe that the demands that the Government are looking to place on institutions through this legislation is just another example of the head office wanting yet more reports from various institutions. It will be another form to fill in, and the Government will do what they want with it—maybe just sit on it, like so many reports.

I struggle with the amendment, because I think it misjudges the benefit of bureaucracy. As the right hon. Gentleman knows, we have tabled amendments on looking for best practice. We want to understand what is good out there, as well as examples of events being cancelled unduly. That is of interest to all across the sector, it is right and it is proportionate, but ranking universities according to their obligations under the Bill would be impractical and undesirable. I will expand on those two points in just a moment.

[Emma Hardy]

I understand what the right hon. Member for South Holland and The Deepings is trying to do. Would it help him to know that there were consultations on the national student survey—the annual review of student satisfaction—and that one of the questions looked at related to free speech? Might that satisfy his aim, without having a negative impact on smaller providers, which will end up further down the rankings because they lack the resources to put on the events that wealthier institutions can?

[Matt Western]

I thank my hon. Friend for that suggestion.

What the amendment proposes is impractical. In evidence, we heard about the undefinable nature of the chilling effect. One of the Bill’s stated aims is to erode that effect, but how can the OfS be expected to rank universities on how they do that? As my right hon. Friend the Member for North Durham put it:

“Getting your head around the idea of self-censorship is like having blancmange in your hands.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 95, Q194.]

How is it substantive? How is it made quantifiable and therefore a true measure?

[Sir John Hayes]

On that point, I want to get to the bottom of this issue of good practice. As the hon. Gentleman knows, clause 4 already states:

“The OfS may…identify good practice relating to the promotion of freedom of speech and academic freedom”.

As well as giving advice—dealt with in the next paragraph—the identification of good practice will end up ranking universities, because where good practice is identified it will be clear, and where it is absent it will be equally clear.

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[Matt Western]

I thank the right hon. Gentleman for that point of clarification, but even where good practice is identified, that is a qualitative judgment being made, in this case, by an individual or perhaps a small team of people; and while that is accepted and understood, and most people recognise good practice when they see or hear it, how it is quantified into some measure is a concern. Is it a matter of giving five points for this and three points for that? How is a genuinely substantive and transparent ranking system that people can understand to be arrived at? I understand the right hon. Gentleman’s intention, but I believe there are better ways of under-standing where there is good or bad practice. One of the witnesses, Sunder Katwala, said:

“self-censorship and chilling effects are cultural points”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 103, Q214.]

When you need to do some quantitative analysis, how do you quantify what is essentially a cultural phenomenon?

The point made by the chief executive of the OfS was that

“Regulatory burden is not necessarily a bad thing,”

unless “it is disproportionate.” She added:

“The way through this is to ensure that our response is proportionate and risk-based”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 113, Q245.]

I would say that what is coming from the OfS is some direction. They might want some sort of reporting, but it has to be proportionate to identifying risk, rather than some sort of beauty parade showing how different universities are performing.

In their impact assessment, the Government claimed that non-legislative work, including the OfS-led review and guidance is not sufficient to solve the problems identified. Non-legislative proposals would not have the desired effect because they are based on a voluntary approach. The amendment is fundamentally illiberal, putting the OfS in the position of an ombudsman that sits above the sector. Dr Greg Walker, the former chief executive officer of MillionPlus, was concerned about the OfS becoming an arbiter. He described it as being much like the British Board of Film Classification. How would that work? The Association of Colleges reminded me in our meeting that the OfS is provider-blind. How, then, can it be expected to rank institutions? The former Secretary of State, the right hon. Member for South Staffordshire (Gavin Williamson), said on Second Reading:

“The OFS will also play an important role in identifying best practice and providing advice in relation to the promotion of these rights.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]

Why have not the Government put that in place more, rather than potentially wasting thousands of pounds on implementing this legislation?

The amendment goes beyond identifying best practice and advice and into intrusive review and value-based judgments on a university’s attempts to navigate freedom of speech issues.

[Sir John Hayes]

The hon. Gentleman is being generous in giving way. What he describes is not uncommon when we look at universities. We heard earlier that student satisfaction is measured. Student satisfaction is, by its nature, a subjective judgment: students gauging their view of their university—the teaching, care and stewardship. Of course those judgments are subjective, but they are none the less valuable.

[Matt Western]

I understand that. My understanding of that student survey is that they complete it and assign a score, on different categories and measures, to how the university has met their expectations, to try to quantify that experience. It covers teaching, accommodation and how the curriculum has been delivered compared with their expectations. That is a positive thing.

The Opposition do not believe that there is a need for ranking. It is a qualitative measure and I think it is a stick to beat and bully those the Government may not like. I have real fears about the Bill. Increasingly, I sense that it is the work of the McCarthyite tendency, and the amendment would simply aid them in their subjective assault on the sector.

[Mr Kevan Jones]

It is a pleasure to serve under your chairmanship, Ms Cummins. I say to the right hon. Member for South Holland and The Deepings that God loves a tryer. He has come back with another amendment to try to quantify the need for the Bill. As I said last week, I feel uncomfortable with the Bill’s intervention in areas where it should not go.

I look back, possibly with rose-tinted spectacles, to the halcyon days when Conservatives argued for smaller states, less intervention and less red tape. The Bill—and the right hon. Gentleman’s amendment—puts more red tape and bureaucracy on institutions. We have just had a discussion on tort. I look back fondly to great Conservative speeches that argued for less regulation and how we should keep lawyers out of things wherever possible. Today we have a Government who argue for giving a freedom charter to lawyers, which I have never been in favour of.

There is a—perhaps inadvertently—useful part to the amendment: it might produce the evidence for the need for the Bill in the first place. One of the problems with the Bill is that we have seen very little evidence, in terms of figures, for why it is required. If the amendment is an attempt to provide that, it seems to put the cart before the horse. One problem, as my hon. Friend the Member for Warwick and Leamington said, is how we quantify this, because these will be value judgments that vary from year to year for institutions. Let us be honest: the institutions themselves will have no control over them at all, because student unions and other organisations will invite speakers and get challenged, which will be problematic.