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

Matt Western Excerpts

Wednesday 22nd September 2021 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

New clause 9—Appointment of the Director for Freedom of Speech and Academic Freedom—

“(1) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.

(2) The Secretary of State shall when appointing the Director for Freedom of Speech and Academic Freedom have regard to the views of an Independent Advisory Body.”.

This new clause would require the appointment of the Director for Freedom of Speech and Academic Freedom to be confirmed by the Education Select Committee, and for the Secretary of State to consult the Independent Advisory Body when appointing the Director for Freedom of Speech and Academic Freedom.

New clause 11—Review of the appointment process for the Director for Freedom of Speech and Academic Freedom—

“(1) The Secretary of State must conduct a review of the appointment process for the Director for Freedom of Speech and Academic Freedom within six months following the calling of a new Parliament.

(2) Any review conducted under subsection (1) must assess the suitability of the appointment process for selecting politically impartial candidates.

(3) The Secretary of State must lay the report of the review before Parliament.”.

This new clause would require the Secretary of State to review the appointment process for the Director for Freedom of Speech within six months following the calling of a new Parliament, and lay the report of this review before Parliament. The review must include an assessment of the suitability of the appointment process for selecting politically impartial candidates.

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

I will just finish off my remarks on amendment 85 and new clauses 9 and 11. I remind the Committee that we believe there is a need for some other body to be involved in the process. We suggested that the Education Committee could be well disposed to carry out that role.

Our critical point is that maintenance of and alignment to the Nolan principles are important in the appointment of the director for freedom of speech. The approach of the Office of the Independent Adjudicator for Higher Education was raised, with its emphasis on skills and experience. I sense there is a bit of clear blue water between that approach and what has been proposed for the position at the OfS, which might align more with principles and values.

The key thing throughout has been the importance of credibility in this appointment. Many in the sector have questioned the trust, and that is something my right hon. Friend the Member for Hayes and Harlington addressed. Credibility is important; there is real concern across the sector—not just on the Opposition Benches—about this legislation, and particularly about the intent behind the appointment of the director of free speech.

Question put, That the amendment be made.

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Question proposed, That the clause stand part of the Bill.

[Matt Western]

We have discussed this clause at some length. It causes us great concern and concern across the entire sector—to the universities, the University and College Union and the National Union of Students, as well as to existing bodies, such as the Office of the Independent Adjudicator, and to the Charity Commission. All our amendments to the clause have sought to ensure that the director is best equipped to deal with the difficult task that awaits them.

The chief executive of the Office for Students, Nicola Dandridge, likened the director of free speech and academic freedom to the director for fair access and participation. I am not convinced they are the same. This position is so important to the future direction of our campuses, although the director for fair access and participation is of course important, and we have had a person in post since the inception of the Higher Education and Research Act 2017 and the establishment of the OfS, so that person predates the Prime Minister, his Government and the direction in which he is clearly taking us. However, while I appreciate the similarities and very much hope that the director of free speech has an equally positive effect and an impartial position, the clause as it stands creates a framework that favours the centralisation of power in one person, potentially with a lack of participation from the sector, which will remain silent on the appointment of the director. We tabled those constructive amendments to get the engagement and buy-in from the sector, which as colleagues have so eloquently said is absolutely needed now. We have heard that the Association of Colleges, for example, has not been consulted at all. There are many flaws in the approach that the Government have followed.

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[The Minister for Universities (Michelle Donelan)]

We have already discussed the clause extensively, so I will keep my remarks very tight.

The new complaints scheme provided for by clause 7 will be overseen by the new director for freedom of speech and academic freedom within the Office for Students, and that director will oversee the free speech functions of the OfS. That means that there will be an individual within the OfS who has an undivided focus on those fundamental values in our higher education system, and they will play a public role in championing the value of free speech and academic freedom across the higher education sector.

That new high-profile role will demonstrate the importance of free speech and academic freedom in higher education and will empower individuals and providers to ensure that universities and colleges in England are places where freedom of speech can thrive for all staff, students and visiting speakers, contributing to a culture of open and robust intellectual debate.

[Matt Western]

Will the Minister confirm that the role will be a full-time appointment, and what will the tenure of the contract be?

[Michelle Donelan]

As we heard in evidence, the role will be akin to the director for fair access and participation. The job description and all the terms will be published in due course—it would be premature to do that before the Bill becomes an Act.

Question put, That the clause stand part of the Bill.

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[Michelle Donelan]

Clause 9 gives effect to the schedule to the Bill that makes minor and consequential amendments to other legislation. These consequential amendments are necessary to give effect to the main provisions of the Bill and to make all the legislation work together seamlessly and consistently.

Part 1 of the schedule provides for a number of amendments to be made to part 1 of the Higher Education and Research Act 2017. For example, amendments to section 75 of the 2017 Act allow for the regulatory framework of the Office for Students, which gives guidance on how it will regulate, to include provision on student unions. That is a consequence of the new duties for student unions that are imposed under clauses 2 and 6 of the Bill.

Part 2 of the schedule makes amendments to the Counter-Terrorism and Security Act 2015. Paragraph 13 makes consequential amendments. Paragraphs 14 and 15 make minor changes that are not consequential, but are technical corrections. The effect of the amendments is to match those providers that are monitored for compliance with the Prevent duty under section 32 of the 2015 Act to those listed in schedule 6 of that Act that are subject to the duty. That makes no difference in practice; it is simply to fix inconsistencies in wording.

Part 3 of the schedule amends section 43 of the Education (No. 2) Act 1986, which sets out the current freedom of speech duties on universities and colleges. It removes registered higher education providers from scope, since they will now be covered by this Bill. Part 3 also amends the Higher Education Act 2004 to ensure that the scheme operated by the Office of the Independent Adjudicator for Higher Education, which considers student complaints against providers, takes account of the new freedom of speech complaints scheme to be operated by the Office for Students.

The clause and schedule therefore contain amendments to other legislation that are necessary for the operation of the Bill.

[Matt Western]

I do not have any points to make on this clause.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Schedule

Minor and consequential amendments

Amendments made: 17, in schedule, page 13, line 25, leave out from “subsection (1),” to end of line and insert—

“for ‘a provider’ substitute ‘a registered higher education provider, or a students’ union,’”.

This amendment is consequential on Amendment 18.

Amendment 18, in schedule, page 13, line 27, leave out “provider,” and insert—

“registered higher education provider or of a constituent institution of such a provider,”.

This enables costs recovery from constituent institutions in connection with the complaints scheme.

Amendment 19, in schedule, page 14, line 6, after “provider” insert “, constituent institution”.

This amendment is consequential on Amendment 18.

Amendment 20, in schedule, page 14, line 43, at end insert—

“(aa) after the definition of ‘a fee limit condition’ insert—

‘“constituent institution”, in relation to a registered higher education provider, has the same meaning as in Part A1 (see section A3A(4));’;”.

This defines “constituent institution” for the purposes of Part 1 of the Higher Education and Research Act 2017.

Amendment 21, in schedule, page 15, line 46, leave out sub-paragraphs (2) to (4) and insert—

“(2) In paragraph 1, for the words from ‘in relation’ to the end substitute ‘where under section 73 the OfS imposes a requirement to pay costs on—

(a) the governing body of a registered higher education provider,

(b) the governing body of a constituent institution of a registered higher education provider, or

(c) a students’ union.’

(3) In paragraph 2—

(a) in sub-paragraph (1)— in sub-paragraphs (3) and (5), after ‘governing body’ insert ‘or students’ union’.

(i) after ‘governing body’ insert ‘or students’ union’;

(ii) for ‘73(1)’ substitute ‘73’;

(4) In paragraph 3(1) for ‘of a provider’ substitute ‘or students’ union’.”.

This amendment is consequential on Amendment 18.

Amendment 22, in schedule, page 16, line 15, at end insert—

“(1A) In subsection (1)—

(a) in paragraph (b), omit the final ‘or’;

(b) after paragraph (b) insert—

‘(ba) a constituent college, school or hall or other institution in England or Wales of an institution within paragraph (b), or’.”.

This amendment aligns section 31(1)(b) of the Counter-Terrorism and Security Act 2015 with the concepts used in the Higher Education and Research Act 2017, in order to facilitate the Minister’s other amendments to Part 2 of the Schedule.

Amendment 23, in schedule, page 17, line 4, leave out from “provider” to end of line 7 and insert—

“or a constituent institution of such a provider has the meaning given by section 85(6) of the Higher Education and Research Act 2017;”.

This amendment and the Minister’s remaining amendments to Part 2 of the Schedule clarify how section 31 of the Counter-Terrorism and Security Act 2015 applies in relation to constituent institutions of registered higher education providers.

Amendment 24, in schedule, page 17, line 13, at end insert—

“‘constituent institution’, in relation to a registered higher education provider, has the same meaning as in Part A1 of the Higher Education and Research Act 2017 (see section A3A(4) of that Act);”.

See the explanatory statement to Amendment 23.

Amendment 25, in schedule, page 17, line 22, leave out from “provider” to end of line 24 and insert—

“(aa) a constituent institution of such a provider, and”.

See the explanatory statement to Amendment 23.

Amendment 26, in schedule, page 17, line 28, at end insert—

“(e) after the definition of ‘qualifying institution’ (inserted by paragraph (d)) insert—

‘“registered higher education provider” has the meaning given by section 3(10)(a) of the Higher Education and Research Act 2017.’”.—(Michelle Donelan.)

See the explanatory statement to Amendment 23.

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

I beg to move amendment 70, in schedule, page 17, line 36, at end insert—

“14A After section 32, insert—

‘32A  Section 26(1) duty: exception for higher education providers

For the purposes of section 26(1) of this Act, the obligation to have due regard to the need to prevent people from being drawn into terrorism shall not apply to any decision made by a registered higher education provider that directly concerns:

(a) the content or delivery of the curriculum;

(b) the provision of library or other teaching resources; or

(c) research carried out by academic staff.’”.

We have had a useful debate on the principles of the Bill. A difference between us has emerged during that debate, which is essentially the difference between those of us who think the Bill is essential, because we think there is a prevailing problem that we need to address—that was reflected to some degree in the evidence we received from Professor Biggar, Dr Ahmed, Professor Kaufmann, Professor Goodwin and so on—and those who take the opposite view, that there is not a problem and, if there is, it can be dealt with by existing means.

My anxiety in all of these matters is to bring clarity to the Government’s intentions. I have made that point throughout. We have been reassured by the Minister a number of times that she is listening to the Committee and will go back and reflect further on the points that have been raised. We have also heard that much will be made clearer in guidance. That is not uncommon in this place. Over many years, as a shadow Minister and Minister, I have encountered many occasions where the implementation of a Bill, particularly when breaking new ground, has required that guidance be issued. It is right and important—if I were the Opposition, I would be making this point—that that guidance is made available at a time that allows it to be scrutinised. I understand that argument, and it is a perfectly reasonable one.

However, equally, from the point of view of good governance, it is important that the guidance—based on the discussions and consultations that will no doubt take place, as the Minister has assured us, between the sector and Government—is iterative and that it reflects those discussions and marks those consultations. I am not as concerned about that as some, because I assume a degree of good will in that respect.

My view about the Bill and the Committee is that, as was said by Members from across the House, our task is to improve the legislation during its passage. That is precisely what I have tried to do in the amendment. For me, it is about certainty and clarity and about establishing an environment where universities and others will be confident that the new regime is one that will deliver the outcomes we want, which is to facilitate and, indeed, to guarantee free speech on campuses across the country.

I am a supporter of the Bill, and the amendment, as hon. Members will see, is a helpful one. It is not designed to do anything other than to improve the legislation. I am also mindful that all Acts are rather different from the Bills they begin as. No Act of Parliament is quite like the Bill that is published; they all metamorphosise during their passage and improve as a result of that metamorphosis. So, the amendment, which is straight- forward, is designed to provide greater clarity, build the certainty I have described and also mark the progress of the Bill. Once the Bill becomes an Act we need to measure its effect. I have argued throughout the Committee for greater clarity, for greater certainty and for more information to be provided.

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[Sir John Hayes]

I spend a good deal of my time contemplating what I think now, and I occasionally contemplate what I thought once. However, the longer one has lived, the harder that becomes. I could not say with absolute conviction that I recall the considerations I made in years gone by. It is complicated, in my case, by the fact that I have held a lot of different ministerial offices, and dealt with a lot of legislation over a lot of years. I said to the Labour spokesman that I have sat many times where he sits today, and, while it is tough being a Minister, it is pretty tough being a shadow Minister too.

I hope I have made it clear that my intention is positive; good Committees are about responsible progress being made—to that end I do not want to delay the Committee any further. This is a probing amendment to clarify, and make straightforward, the relationship between these legislative imperatives, so that the universities know precisely what is to be done. Finally, I send this signal out again: the Prevent duty is not about curbing free speech, it is about identifying potential terrorists. It is no more or less than that. It should not be under-interpreted, because we need to find those people before they do harm. However, it should not be over-interpreted as a backdoor means of closing down free and open debate.

[Matt Western]

I thank the right hon. Member for South Holland and The Deepings for the clarification in the points he has put forward. I found reading what he was proposing a bit troubling, but I understand much more, having now listened to him and to the responses that have been made by colleagues. The right hon. Gentleman had already alluded to the fact that, under Prevent duties, specified authorities are required to have a due regard to the need to prevent individuals being drawn into terrorism. This applies to higher education institutions, local authority schools and further education institutions, as well as the health sector, prisons, probation and police services. I may have got this wrong, but my understanding was that there was a provision prior to the coalition Government’s introduction of the Prevent duty, and it was an enhancement of this that came in through the office of the right hon. Gentleman.

[Sir John Hayes]

The difference was the statutory basis of what we did. I think there was a provision prior. Prevent is a longstanding part of the Contest strategy, which is the means by which counter-terrorism efforts are delivered. We specified in statute a new duty—that is the difference.

[Matt Western]

I thank the right hon. Gentleman for the clarification. As he has said, in essence this was a policy introduced by the coalition Conservative Government. I am interested to hear what the Minister’s view is in response to this amendment.

I have read that, in the view of Corey Stoughton, director of advocacy at the human rights organisation Liberty, the tactics of the strategy for monitoring campus activism has had a

“‘chilling effect’ on black and Muslim students, provoking self censorship for fear of being labelled extremist.”

We have to be very careful here, because blanket exemption is just as bad as blanket application. I have looked through the responsibilities of universities, which already have done very well to balance freedom of speech with the Prevent duty. My hon. Friend the Member for Brighton, Kemptown and I have discussed how the Nottingham Two incident—the right hon. Gentleman may be familiar with it—played out, and how such situations can be avoided. There must be an obvious method of ensuring that academics can research these subjects, whether it be the cultural impact of drugs or the impact of certain political movements, without the police knocking on the door. I would have thought that an obvious way of avoiding problems and difficult situations on campus would be to introduce processes to allow academics to make their governing bodies and departments aware of their work.

[Emma Hardy]

I believe I understand what the right hon. Member for South Holland and The Deepings is trying to do with this amendment, but I return to our previous point that the big problem with this Bill is how it interacts with other pieces of legislation, and what impact it will have. That is why we talked about putting into the Bill the other pieces of information that we have mentioned. I am sure the Minister will refer us to guidance that is coming shortly to deal with this. The Bill does not exist on its own, so, as my hon. Friend says, the implementation will be incredibly complex. That goes back to the points we made this morning about who the person will be who has to try to decipher this very complicated piece of additional legislation.

[Matt Western]

Exactly that—it is about how this Bill will play with existing legislation and how the responsibilities will be balanced. The fact, and the overriding argument, is that institutions in the higher education sector have done an amazing job of balancing the obligations and the competing freedoms that exist on our campuses, and they have done so with very few problematic exceptions. It will be interesting to see how this individual and their department will handle that. I do not hold out a huge amount of confidence and hope in what they will do, but I will be interested to see what the Minister says in response to the amendment, and we will hold fire until we have heard her words.

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

I have a problem with the amendment, because I think there is a lot of misunderstanding around the Prevent agenda. It is one of the four p’s—prevent, pursue, protect and prepare—which are, as the right hon. Member for South Holland and The Deepings has just said, part of the Government’s Contest counter-terrorism strategy. The principles that underpin it are democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs, and of those who hold none. I do not understand how it would be a problem for the director or any other institution to have to take into account issues surrounding Prevent.

It would be problematic if we started to take people out of legislation. Prevent is clearly designed to identify individuals who are at risk, and having met—in another role—the people who co-ordinate Prevent, I know that they are very skilled at ensuring that only those who need the programme are put through it. I accept what the right hon. Gentleman said about the vicar, but I am not sure that the amendment would prevent him—pardon the pun—from being referred anyway; that is more about training and ensuring that those whose duty it is to operate Prevent actually understand it. Will we get the odd case of people being referred when they should not be? Possibly, but that does not mean that those cases will be taken any further. I am sure the vicar was not taken any further just because somebody thought that he had failed in the Prevent duties.

I do not think there is any need for the amendment. The principles underpinning Prevent go to the core of the Bill, which talks about freedom of speech, democracy and everything else.

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[Michelle Donelan]

I apologise, Mrs Cummins. I am one ahead.

[Matt Western]

I have a minor point relating to the title. It appears pretty straightforward, but there seems to be a variance in how it is listed. The Education Act 1986 included further and higher education. Perhaps it should be the further and higher education (freedom of speech) Bill. Is that something that the Minister would consider?

[Michelle Donelan]

We believe that the title of the Bill is correct.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

New Clause 1

Duties of constituent institutions

“After section A3 of the Higher Education and Research Act 2017 (inserted by section 1) insert—

“Duties of constituent institutions

A3A Duties of constituent institutions

‘(1) Sections A1 to A3 apply in relation to the governing body of a constituent institution of a registered higher education provider as they apply in relation to the governing body of the provider.

(2) Accordingly, in the application of those sections by virtue of subsection (1), references to “the provider” are to be read as references to the constituent institution.

(3) The duties of the governing body of a constituent institution of a registered higher education provider under sections A1 to A3 do not affect the application of any initial or ongoing registration conditions imposed on the provider under Part 1.

(4) In this Part—

“constituent institution”, in relation to a registered higher education provider, means any constituent college, school, hall or other institution of the provider;

“governing body”, in relation to a constituent institution of a registered higher education provider, has the same meaning as in Part 1 of this Act.’”—(Michelle Donelan.)

This new clause secures that the new duties relating to freedom of speech apply to colleges and other constituent institutions of registered higher education providers in England.

Brought up, read the First and Second time, and added to the Bill.

New Clause 2

Providers’ duty to ensure adequate resources for students’ unions

“After section A5 of the Higher Education and Research Act 2017 (inserted by section 2) insert—

‘A5A Resourcing of students’ unions

The provider must take steps to ensure that students’ unions have sufficient resources to carry out their duties under sections A4 and A5 of this Act.’”—(Matt Western.)

Brought up, and read the First time.

[Matt Western]

I beg to move, That the clause be read a Second time.

This important provision is all about having sufficient resources. As we have debated at some length, student unions will bear a considerable burden of cost and resource to make the duties work on campuses. It is an administrative burden that hitherto they have managed to cope with, but this greatly exceeds what they would have done in the past.

We have to remind ourselves that we are talking about the full plethora of institutions from larger universities to smaller higher education institutions and further education colleges. The Department for Education’s impact assessment quotes a cost to student unions of £800,000 a year to implement and update the code of practice. The impact assessment also makes it clear that student unions will face the heaviest burden because of their unfamiliarity with the new administrative requirements; most universities already have in place good codes of practice on freedom of speech.

The Bill disproportionately affects a variety of SUs, such as those at FE colleges. The Association of Colleges points out in its briefing that 165 FE colleges are registered higher education providers on the Office for Students’ list. The recent submission by Durham University, which I am sure is of particular interest to two Committee members, makes it clear that clause 6 could represent a significant additional administrative burden on organisations. Jim Dickinson of Wonkhe highlighted in his submission that

“the funding and resultant capacity and capability of an SU to undertake these duties is usually wholly dependent on a negotiation between the SU and the provider. Without a duty on the provider to resource the SU appropriately to carry out the duty there is a material risk that they will be unable to. Vexatious complaints surrounding, for example, SU elections may not succeed but would cause an SU committee to need to seek costly legal advice which it may not be funded to obtain.”

Given that the Government have voted down all our attempts to amend the Bill in a satisfactory manner, the new clause is a form of backstop to ensure that the legislation will not challenge the viability of SUs up and down the country through the need to withstand these costs and the potential for vexatious litigants. The new clause is yet another constructive amendment that we want included in the Bill to recognise the immense financial burden and responsibility faced by student unions in the wide mix of institutions and colleges that the measures will affect. We think it important that the Government recognise that student unions will face that burden, which could seriously affect their viability.

[Lloyd Russell-Moyle]

In local government, the health service, education and other areas, there is a doctrine known as the new burden doctrine. It is a sensible doctrine whereby if a new burden is put upon a body—particularly in local government and in educational bodies under local government—the Government shall make provision to pay for that new burden, or they will provide for that body to be able to raise revenue to cover the new burden.

Higher education institutions have income-raising capacity, although I am sure they would say that the cap should be lifted or the funding formula should be changed. They can make that an argument to the Chancellor at the spending review, and I know that many of them have. I desperately hope that the burden is not put on poorer students, as we are reading in the papers. Personally, I would move to a proper graduate tax, or even free education. A new graduate tax could be introduced for the young, and an old-age social care tax for those who are older, so we could have one joint intergenerational tax that allows a bit of intergenerational solidarity—but I digress.

Despite my desire for free education or a proper graduate tax that does not put people in debt, universities can go and make their case to the Chancellor. They have powers to raise revenue, either by seeking research funding or through student fees. They can get more students in, in fact—they could squeeze two or three more students into lecture halls. Student unions have none of those abilities. They do not, on the whole, raise revenue. Some, which are now the exception, still run some commercial businesses, but that is a rarity in higher education—even in campus universities. Most campus university student unions do not even run their own bars now.

Government Members who think that student unions can raise the money need to look again at student union finances, the vast majority of which come from the good will of the institution. The problem is that if the institution deprives the student union of money, the financial penalty for that student union and its duty do not transfer back to the institution; the liability is not reduced. I suspect that the liability will be covered by the student union’s paying basic insurance, but if it is deprived of money it will have no ability to pay for that, while still having the liability.

The new clause does not specify an amount; all it says is that the institution, in appointing the student union—because it appoints the body that is the student union; its job is to say, “This is our registered student union”—has to make sure that the student union has sufficient resources. If the student union has bars and commercial services, the institution can say, “We’ve ensured that you have the right resources because we can see that you have an income. No problem.” If the student union has none of those resources, all the new clause requires is that the institution takes steps to ensure that it has. Perhaps it will give a bar over to the student union to run, so that it generates the resources, or perhaps it will give over an amount of money. The new clause requires that to happen. The guidelines will explain how that happens, of course, but without this provision I am deeply worried that we will be imposing a new burden.

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[Michelle Donelan]

I thank the hon. Member for that very good point. While not wanting to predetermine the work of the new director, I fully anticipate that they will look at drawing up templates of such codes of practice to assist.

I trust that I have been able to reassure the Committee that we are taking appropriate and proportionate actions to ensure that student unions can address freedom of speech in a way that is not overly bureaucratic and that reflects the variety in their composition, size and financial arrangements.

[Matt Western]

I hear the Minister, but the Opposition believe that it will lead to considerable red tape, even if there are templates to be adopted and so on. I just do not believe that many student unions would be able to cope. There will be associated stresses and certainly great costs, such as the insurance we picked up on the other day. The right hon. Lady talks about there being many student unions that have developed innovative revenue raising. Perhaps there are a number of such cases—I would be interested to know how many there have been among the hundreds we are talking about—but we will press the clause to a vote, because we think there is serious concern about the viability of student unions.

Question put, That the clause be read a Second time.

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Brought up, and read the First time.

[Matt Western]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss new clause 6—Sunset clause—

“(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.

(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.

(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.

(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.

(5) Regulations under this section shall be subject to the affirmative procedure.”

This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.

[Matt Western]

The purpose behind new clause 3 is straightforward: it is to ensure that the effectiveness of the legislation is formally reviewed, certainly within a year of it’s being passed. Professor Jonathan Grant said in his evidence:

“What I wait to see—I cannot answer this; I am speculating––is whether the legislation will have an impact on that 25% of people who feel that they cannot say what they want to and whether it will change the behaviours of lecturers in the classroom to get more balanced reading lists. I hope that is the case, but we do not know at this stage. If this legislation leads to that, then it has been successful.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 122, Q264.]

There are pretty substantial markers of success. Barring Dr Harris’s absurd belief that

“all this Bill needs to do to be successful is to cause a momentary pause. It needs to cause a degree of reflection.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 82, Q175.],

which I would suggest is a marker of success so low that, on this basis, the legislation ought to be passed continually to allow moments of self-reflection, we need to monitor the progression of the , how it is going to work and how it may work once it is, we assume, passed.

If the Government are, as the Committee is saying they are, so keen on the promotion of free speech, surely they would be inclined to allow annual monitoring and to tweak the Bill as necessary—for example, if there is vexatious litigation or confusion among students about which body they should complain to. New clause 3 simply seeks a review by the Education Committee looking into the effectiveness of the Bill’s provisions.

New clause 6, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, is a straightforward sunset clause of the type that much legislation includes. It states that this legislation should expire after three years beginning on the day it is passed, in view of our belief that it will not work. We are doing our best to be constructive about how it could work better and to mitigate its worst impacts, but we believe it is important to include this sunset clause. It would also give the Minister the power to remove provisions that were acting against the interest of free speech. I am reminded of how my right hon. Friend the Member for North Durham described the chilling effect as a blancmange. If that is so, why not embed the equivalent amount of flexibility in the Bill?

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

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

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

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[Matt Western]

As my right hon. Friend the Member for Hayes and Harlington said, we believe that the amendments are quite straightforward. We should be trying to avoid the piling up of legislation The point has been made many times by my right hon. Friend the Member for North Durham that, for decades, Conservative Governments have claimed that they are reducing red tape and ridding this country of legislation, but here we are again. We seem to be living under what is perhaps the most authoritarian Conservative Government ever. They are introducing more and more legislation and burdens on those who can ill afford it.

We thought that a sunset clause was a very straightforward suggestion. We believe that the Select Committee should have more of a role to play, and why not? Surely the purpose of having a Select Committee is to conduct scrutiny of the work of the Department and agents within the sector; and surely the director of free speech should be part of the scrutiny by that Committee. We will therefore wish to press new clause 6 to a vote.

Question put and negatived.

New Clause 4

Other student bodies

“After section A4 of the Higher Education and Research Act 2017 (inserted by section 2) insert—

“A4A Application of students’ union provisions to other student bodies

(1) In this Part, where a provision applies to a students’ union, it should also be taken to apply to any other student body.

(2) For the purposes of this section “other student body” means—

(a) any Junior Common Room or Middle Common Room of a constituent institution; and

(b) any club or society made up of students at a higher education institution, whether or not the club or society is affiliated to the students’ union.””—(Matt Western.)

This amendment would expand the definition of a student body to include any Junior Common room or Middle Common room of a constituent institution or any club or society at a higher education institution, regardless of whether student union affiliation requirements have been complied with.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

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[Fiona Bruce]

I am not entirely taking the right hon. Gentleman’s point—it probably requires some reflection on my part—but I thank him for raising it, and no doubt the Minister might do the same.

Professor Nigel Biggar noted that

“appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 31, Q62.]

I hope the Minister will consider my comments.

[Matt Western]

I understand the points that have been made by the hon. Member for Congleton, and I appreciate the sentiment, but I disagree with how new clause 5 is worded, because implicit in its words is quite a narrow conception of unfair dismissal. New clause 13 is broader and affords greater protections, and I hope that the hon. Lady will support it.

Several witnesses underlined why the inclusion of employment law provisions in this conversation is so important. When questioned by my hon. Friend the Member for Brighton, Kemptown on whether employment law would be a better basis for defining some of these rights, Professor Stephen Whittle responded with a categorical yes. In her evidence, lawyer Smita Jamdar said:

“there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q110.]

Employees need the full protection of the law, which is what new clause 13 seeks to provide. Employees would not have to conform to the stringent requirements for bringing an unfair dismissal claim—usually, a two-year qualification period and a range of reasonable responses test, which is construed broadly, often in favour of the employer. They also would not be subject to capped damages awards. There was cross-witness support for this, including from Thomas Simpson, who said:

“I would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 72, Q149.]

On Second Reading, the hon. Member for Devizes (Danny Kruger) said:

“We should allow academics to appeal not just through the civil law but to an employment tribunal if their academic freedom is restricted.”—[Official Report, 12 July 2021; Vol. 699, c. 76.]

New clause 13 is actually an extrapolation of new clause 5. We think that it is broader.

[Mr Jones]

I have a lot of sympathy with this, but will my hon. Friend address the issue of tenure, which is quite a unique employment status. Will it be covered by new clause 13?

[Matt Western]

I am not a lawyer. I would hope that it would be, but my hon. Friend may well be right that it may not be covered. That would be its intent. The concern is about the vulnerability of academics in terms of their tenure and whether they will have the protections that others already have.

I hope the amendment covers that. If it does not, then perhaps this is something we should revisit. I hope the hon. Member for Congleton will recognise that our new clause is an enhanced version of what she is proposing and vote with us.

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[Matt Western]

I beg to move, That the clause be read a Second time.

The former Secretary of State for Education, the right hon. Member for South Staffordshire (Gavin Williamson), said on Second Reading that

“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]

We need to ensure that we embed that balance in harassment provisions in the Bill.

During the evidence sessions, Professor Biggar said:

“The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment. That is obviously a dampener on free speech. The Bill will not resolve that”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 30, Q59.]

New clause 12 seeks to harmonise the relationship between promoting academic freedom and freedom of speech with the legal concept of harassment in a way that could act as a counterweight to potentially expansive interpretations of harassment by universities and management. Professor Whittle said:

“The Equality Act provides little protection for anybody who feels that their rights are being disturbed by somebody else’s freedom of speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43, Q80.]

Dr Bryn Harris said that

“the explanatory notes of the 2010 Act, as enacted, quite clearly say that in making findings of harassment, courts should take into account academic freedom. I think there is a lot that can be done that would not substantially change the Equality Act, but that would clarify how it applies in the academic context.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q169.]

Once again, we are seeking to clarify and tighten the legislation on harassment, which is why we tabled new clause 12.

[Michelle Donelan]

New clause 12 seeks to amend the provisions relating to harassment in the Equality Act 2010, which defines it as

“unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.”

The new clause would provide that where a case concerns the conduct of an academic staff member of a registered higher education provider, in deciding whether the conduct has that effect, the importance of freedom of speech and academic freedom must be taken into account. The new clause would amend section 26 of the Equality Act—the general definition of harassment that applies to all areas covered by the Equality Act—rather than chapter 2 of part 6, which deals with further and higher education.

It is already the case that when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the right of freedom of expression, as set out in article 10 of the European convention on human rights, and academic freedom. The explanatory notes to the Equality Act state that specifically in relation to determining the effect of unwanted conduct. Guidance has made it clear that the harassment provision should not be used to undermine academic freedom.

It is also important to note that, under the Equality Act, harassment has both a subjective and an objective element. It is not just based on the views of the person making the complaint. The Act provides that, in deciding the effect of the unwanted conduct, the complainant’s perception must be taken into account, but so too must the circumstances of the case and whether it is reasonable for the conduct to have that effect.

New clause 12 would potentially override that by adding a new factor that must be taken into account when deciding whether the conduct of a member of academic staff at a higher education provider constitutes harassment: the importance of freedom of speech and academic freedom. As a result, it could alter the balance that constitutes unlawful harassment and undermine existing protections from harassment in the Equality Act.

I believe that the terms of the Equality Act already address the concerns raised by the new clause, and it would not be appropriate to amend it in that way. It is, of course, vital that freedom of speech generates rigorous debate and advances understanding. To uphold freedom of speech in higher education, students and staff members must be able to express ideas within the law that may be controversial, unpalatable or even deeply offensive. As such, students’ learning experience may well include exposure to course material, discussions or speakers’ views that they find offensive or unacceptable, but that is unlikely to be considered harassment under the Equality Act.

I hope Members are reassured by that and agree that the new clause is not necessary. As ever, we have sought in the Bill to strike an appropriate balance between protecting individuals from harassment on the one hand and securing lawful freedom of speech on the other. Amending the Equality Act in this way would risk unsettling that balance.

Question put, That the clause be read a Second time.

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[Michelle Donelan]

On a point of order, Mrs Cummins. I will take this opportunity to thank you and our other Chair for your excellent chairing of this Committee. I also thank all the Clerks, who have facilitated our Committee, and all hon. Members for the very productive and extensive debate on each of the measures in the Bill.

[Matt Western]

Further to that point of order, Mrs Cummins. I will just add my thanks to you and to Sir Christopher Chope for your sterling work as Chairs of this Committee.

I also express thanks to both the Clerks for their great assistance in assembling the amendments; it was the first time I had to do that, so I greatly appreciated the support and direction that they gave me. I thank the Whips for putting all the work of the Committee together, and I thank all members of the Committee for the spirit of engagement that we have had.

[Sir John Hayes]

Further to that point of order, Mrs Cummins. The right hon. Member for Hayes and Harlington proposed me earlier as the spokesman of the ordinary members of this Committee, or something like that, so I thank the Minister and the shadow Minister for the way that they have performed in this Committee. It is always a challenge for both Ministers and shadow Ministers to maintain the attention of those of us who do not hold those great offices, but they have done so with style and aplomb.

Bill, as amended, to be reported.