Skills and Post-16 Education Bill (First sitting)
Matt Western Excerpts(2 years, 11 months ago)
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Mr Perkins
I am glad that the hon. Gentleman raised that question. That has long been the lament. I speak to my colleagues who were involved in skills policy under the Labour Government, and their retort is that the investment in skills under the Labour Government was far greater than what we have seen in the 11 years that followed. There is nothing contradictory in wanting a strategy that allows as many people who want a university education and who are capable of it to have one, and that also has a real commitment to investment in skills.
Over the 11 years of this Government, we have seen the trashing of the idea that universities should be an aspiration for everyone. Alongside that rhetoric—an example of which we have just heard from the hon. Gentleman—we have seen a massive reduction in the investment in skills, and we have seen policies that do not work. The apprenticeship levy led to a massive reduction in the number of apprenticeships. What is said is one thing; what is done is quite another.
Matt Western (Warwick and Leamington) (Lab)
Back in the mid-2000s, did not the Labour Government, who predated my time here, introduce national skills academies? The whole point of them was to develop skills across the piece and drive the development of courses that could run in colleges across the UK.
Mr Perkins
My hon. Friend makes an important point. We feel very strongly that we need investment in skills, but we also need a strategic approach that brings in different Government Departments and recognises that skills are the responsibility of not just the Department for Education, but of the Department for Business, Energy and Industrial Strategy and the Treasury. There has to be recognition that this is about the kind of economy, as well as the kind of skills system, that we are looking to build. My hon. Friend makes a powerful point on the Labour Government’s approach, and the investments they made.
Ben Bradley (Mansfield) (Con)
It is a pleasure to serve under your chairmanship, Mrs Miller. I will keep my comments brief, but I want to touch on some of the issues raised by colleagues.
First, LEPs, chambers of commerce and other instances of local involvement in skills plans have been mentioned. Some of those are excellent and some are awful. Will the Minister touch on what safeguards might exist for those plans, particularly in areas without combined authorities? Combined authorities have devolved local oversight or engagement in the plans, but for areas that do not, where will the safeguard be if chambers of commerce that are not delivering for business bring forward less effective plans?
Secondly, I should declare an interest as a local government leader in talks with Government about devolution. In all honesty, I would devolve adult skills to all upper-tier local authorities. However, recognising that areas with combined authorities will have local engagement in the discussion—the hon. Member for Denton and Reddish has mentioned future-proofing the Bill—does the Minister acknowledge that the Government are in talks about devolution with counties that will not be part of combined authorities, but that might have powers over adult skills? Is that something that has been considered in the wording of the Bill? Such areas might have that local input or devolved skills budgets and options available to them in future, although they might not be covered by the term combined authority.
Matt Western
It is a pleasure to serve under your chairship, Mrs Miller. As my hon. Friend the Member for Kingston upon Hull West and Hessle was saying, it is great to be in a room that contains so many educationalists and educators, including my hon. Friend and the hon. Member for Great Grimsby, who will bring a lot to bear on the Bill.
I will preface my remarks by turning to earlier comments on vocational qualifications and the relative value of one sector versus another. We must remind ourselves to talk about the HE sector as opposed to universities and think about the great breadth brought to our educational sector by higher education providers, who are diverse in nature.
On Government amendment 4, given that COP was a month ago and how disappointing it was, we must ensure that all Bills include elements that remind us of the importance of climate change, which is the issue of our time and that of decades to come. The Government are seeking to remove subsection (6), inserted by the Peers for the Planet group, which importantly sees LSIPs granted to authorities by the Secretary of State only if they comply with the duty in the Climate Change Act 2008. We must ensure that, at every opportunity, in every piece of legislation, that duty is embedded in our thinking, and future generations must know of our determination on that.
I am sure that the Government are committed to environmentalism—they certainly talk about their commitment—and addressing the issue. I urge Government Members to think about this measure as it is particularly important in terms of education and what is being shared with the next generation. I remind the Committee that it was a concession in the Lords, so I am surprised that it should be opposed in the Commons.
I turn to Government amendment 5. It is important when designating LSIPs to consider the views and wishes of the mayoral combined authorities and the Greater London Authority. The Association of Colleges made that clear when it said:
“The voice of employers is critical—but it is also important that LSIPs reflect wider priorities too”.
Through the pandemic, we should have learned just how important localism is. One of the great successes was the delivery of track and trace and the vaccine programme locally. The same should be said of how we design our needs for skills and education in our regions. The principle of subsidiarity—decisions being made at the local level—is really important.
Mr Perkins
My hon. Friend is making an incredibly important point. We have a couple of enthusiasts for devolution of power on the Government side of the Committee, but I fear they may be disappointed because the Government’s approach to devolution is very much less enthusiastic than that of the previous Conservative Governments in 2015 and 2017. The Bill, which seeks to bring a lot of power back to the centre, seems to prove that.
Matt Western
I agree with my hon. Friend, and I think many hon. Members, including the hon. Member for Mansfield, will be disappointed about that. It is really important that the Government send clear messages about devolution and what they want to see, but in many facets of Government business there seems to be a greater concentration of powers coming into Whitehall and Ministers’ offices than devolution to the likes of Mansfield, Manchester, Liverpool the north-east and so on.
As I said, one of the great learnings of the last 20 months is just how brilliantly our local services and authorities can deliver things. That is because they understand their geography, their communities and their populations. I am concerned about how due consideration, a much-vented issue in the last half hour, might work, particularly given the reliance on the personality of the individual who happens to be in the seat at the time. I will not go into any further detail on that because it has already been much explored.
Will the Minister provide a bit more information on what factors will be considered in the designation of an LSIP? The Local Government Association has stated:
“the reforms need to be implemented as part of an integrated, place-based approach. Without a meaningful role for local authorities, the reforms risk creating an even more fragmented skills system, with different providers subject to different skills plans”
I urge the Government and the Minister to listen and respond to the experience of the Local Government Association.
Emma Hardy
Let me offer the Minister a concrete example of the situation in Hull. We have the Hull and Humber chamber of commerce, which reaches over to the south bank, and we have a newly formed LEP that serves just Hull and the East Riding. We have a careers scheme for Hull and the Humber, and separate counties that have no overall mayoral authority, but an elected police commissioner for the whole of the Humber. To say that is muddled does not go far enough. I really feel that the amendment should make allowances for areas that are as muddled as Hull.
Matt Western
That is a good illustration of just how complicated these matters can be. I hope that there will be greater clarity on how the measures will work in future.
We have heard from colleagues how well things can work, including my hon. Friend the Member for Denton and Reddish, who told us about how Manchester is just getting on with it. Having been up there recently, I have seen the extraordinary work of that cluster of universities and colleges, and how they are co-operating and collaborating in their brilliant work to bring skills to their known geography—I want to place on the record how mighty impressive that was. I agree with the hon. Member for Mansfield on counties and how they work in their regions; that must be clarified as well.
Andy Carter (Warrington South) (Con)
I ran a business in Greater Manchester’s Media City for many years. I saw the work of universities; in fact, I saw the universities arrive in MediaCity while I was working there. It was employers who actually drove that forward. I have listened to Opposition Members talking about local government and universities driving things forward, but businesses have been driving forward the skills agenda in Greater Manchester for many years. We have to put on the record the important role that business plays in that. The skills agenda is not being driven by local government alone; businesses are really at the heart of it.
Matt Western
I knew it was Warrington. I thank the hon. Gentleman for his comments—I worked in the industry for many years myself. Businesses have an important part to play as consultees, but my concern is about the balance struck between what business wants and wider needs—we have to get an absolute balance between that.
To give the hon. Gentleman a small example, Warwick University, which is close to my constituency, was founded back in the 1960s, but it was founded off the back of the automotive industry. That did not mean that it should be an automotive industry establishment, and it is not. It happens to be one of the best universities in the UK and globally, but it was part founded by industry. That is where collaboration can work, and the last Labour Government certainly looked very closely at that when developing regional plans to promote industries. I take on board his point that industries and businesses have an important role to play as consultees, but plans should not be explicitly or purely at their direction.
Alex Burghart
What an interesting debate to start off the Committee stage of the Bill. There are so many comments to come back to. As a general observation, it was very nice to hear the hon. Member for Chesterfield praise Conservative predecessors of mine for their comments about an employer-led system, which we have indeed been building up during our time in power. The Bill is simply the next stage in that process.
The fact that that process was required was first highlighted in a 2011 report by the Labour peer Lord Sainsbury. I do not want to get into the deep politics of it—we have the Bill to consider—but that report was written after Labour had been in power for 13 years. He felt that it was necessary to begin long-term reform of the skills system to make it more responsive to the needs of business and to make sure that students could get the qualifications they needed and the technical skills to go into the jobs that the economy demands. It is a great honour to present the Bill as a means of taking those ideas on to their next stage.
I am grateful to the hon. Member for Chesterfield for saying that Labour will support the amendments and the local skills improvement plans. However, I need to clarify a point made by a number of Opposition Members: the Government are not removing clause 1(6). That seems to be a point of confusion. Clause 1(6) stands part of the Bill. Government amendment 5 would insert subsection (6A) to clause 1, on page 2, in line 32. It does not do anything to clause 1(6).
Mr Perkins
I agree with my hon. Friend. She is right that Government amendment 6 removes the words,
“in partnership with local authorities, including the Mayoral Combined Authorities and further education providers for the specified area”.
The Minister says that we should not worry, it will be in the guidance. However, the different approach by the Lords recognised that it was a genuine partnership. These organisations are now consultees that will make their representations to the chamber of commerce, and hope that the chamber of commerce smiles on the view they put forward. It is a totally different type of relationship. The relationship is either one of partnership or of subservience; the approach the Government choose to take is one of subservience.
Matt Western
My hon. Friend is making some very important points. On the face of it, it would seem that the Government seek to make local employers’ organisations ultimately responsible for the direction and control of our colleges, and potentially our universities as well.
Mr Perkins
In terms of areas that are not already devolved, that is absolutely right, and adult education budgets will be very relevant.
Hon. Members will be pleased to know that I will not dwell on the subsequent amendments, because we will have an opportunity to debate them, but I will touch on some of our concerns about the way in which the needs of learners might not necessarily be at the forefront of people’s minds in chambers of commerce. For example, to what extent will chambers of commerce be aware of the specific needs of people with education and healthcare plans or other disabilities? The amendments seek to reduce the extent to which it is partnership working and move to a hierarchy, with the chamber of commerce holding the pen and driving the bus, and others making suggestions about the route.
Rachel Hopkins
It is a pleasure to serve under your chairship, Mrs Miller. It is appropriate that I declare an interest as a vice-president of the Local Government Association and as a governor of the fantastic Luton Sixth Form College. I support the speech given by my hon. Friend the Member for Chesterfield, the shadow Minister; I was also very disappointed.
The irony is not lost on me that a slightly less democratic place wanted to put more democracy into this Bill, which I was very pleased to see. The Government amendments take out democracy by removing the references to local authorities and mayoral combined authorities. I heard the Minister’s comments about expecting it to be collaborative and wanting good will between the different organisations. In order to ensure that all parts—the legs of the chair, so to speak—are in the Bill, the amendments made in the House of Lords should stay there.
I have a great passion for local authorities and the role they play in adult education. They have already been doing great work, understanding their own areas. In the general debate the point was raised about the role that locally elected leaders, local authorities and combined authorities play in place making, and the skills agenda is key to that. One of the points that has not been referred to specifically comes under amendment 7, which would take out the reference to the “long-term national skills” strategies. That is wholly important and not just secured through local businesses thinking about the skills they need roughly now. Retaining that reference to the long term and the statutory responsibilities of local authorities and combined authorities in the Bill would create a much firmer and stronger situation in our local areas. I speak as a former councillor on Luton Council. Great work is done at local grassroots levels.
Matt Western
It is generous of my hon. Friend to give way. She was in full flow and I did not want to interrupt her. In response to her point, it is fine to consult and get the views of businesses in developing a plan, but they do not necessarily know what is coming down the track: future opportunities, future business and future sectors that do not even exist yet. That is why it is important to keep as broad a base as possible. That was one of the points she was making well, but I wanted to amplify that.
Rachel Hopkins
I thank my hon. Friend for that fantastic intervention. It leads on to a couple of other points about those who are not in employment, and particularly local authorities with responsibility for young people who are NEET—not in education, employment or training. It is absolutely vital that those are addressed and that they have a formal seat at the table in that area. Equally, on my hon. Friend’s point about looking to the future, local authorities do a great amount of work to understand their populations and trends so they can project how many young people are coming through or whether school or training places will be needed. Employers do not always have easy access to that, but local authorities need to have an equal seat at that table in developing the plans, rather than just being tucked away in some statutory guidance. We know what happens with guidance; it is just guidance and it is often ignored.
Rachel Hopkins
My hon. Friend also must have eyes in the back of her head, because one of the other points I want to talk about is health and social care. Again, I will talk about my fantastic home town of Luton. Someone can study for a BTEC in health and social care at Luton Sixth Form College, or study at the University of Bedfordshire and get practical skills training as a nurse, paramedic or midwife, before going on to be a nurse, paramedic or midwife at Luton and Dunstable University Hospital. All of those bodies will not be included in developing a skills plan if they are not set out in the Bill. I want to see them included, so that everyone feels that there is equality of partnership work, to ensure that what is needed is recognised.
I will not prolong my remarks any longer, but I just want to reiterate the points made from the Opposition Front Bench and say that taking out these important clauses that were inserted by the Lords weakens the Bill.
Matt Western
What is concerning about these amendments is the direction of travel. What is it that the Government are trying to achieve by removing these Lords amendments, because they seem to be incredibly positive and constructive about getting the right and relevant organisations across the piece to be involved in the development of a plan? The idea of a LSIP is a very good thing, but it must draw on the skills, knowledge and expertise of these bodies from a region, so that they can bring them to bear on the design of a LSIP, to ensure that the present and future needs of a region can be met.
My fear, having listened to the debate over the last few minutes, is that there is a horrible parallel with what is going on with the integrated care systems, whereby we are seeing more involvement by the private sector and a diminution of the provision from the public sector. When we look at individual placement and support, or IPS, we see that there is an absolute withdrawal of the public sector. The public sector will also have little to no say on what will happen with the delivery of skills in a region. That runs counter to what the Local Government Association believes.
The LGA says in its written evidence that it believes
“the reforms need to be implemented as part of an integrated, place-based approach.”
We have also heard evidence from the Association of Colleges, which said it was
“disappointed the Government have tabled an amendment to remove”
the reference to post-16 education providers. It is quite rightly disappointed.
Warwickshire College Group, based in my town, is a huge college that covers Warwickshire—I think it is still the sixth largest in the country, so it is a college of some substance. It wrote to me to say that it wants to ensure that colleges are co-constructing LSIPs with employers and that it very much needs to be involved, because it is within the power of colleges to further think strategically—that comes back to the point I was making earlier—and innovate for the skills needs of their communities.
We have also heard from the Workers Education Association. Its submission said:
“We are pleased that the Bill…should “draw on the views of”…further education institutions, community learning providers”,
and others, and that:
“We hope to see this retained and strengthened in the…Act.”
Then we get to organisations such as Central YMCA, which said that, as an independent training provider, it believes it is vital that LSIPs should draw on the views of organisations such as themselves, as well as those of schools and FE colleges.
The LGA believes that the Lords amendment should be maintained, to ensure that all employer representative bodies across England should
“work with local democratic organisations to better coordinate provision and align pathways of progression for learners.”
As my hon. Friend the Member for Chesterfield said at the outset, we are extremely concerned that removing these organisations—removing, wholesale, the likes of schools, specialist designated institutions and universities from participating in the design of the plans—seems ignorant in the pure sense of the word. It weakens the plans. It does not maximise the true potential of what the region can do with collaboration between the public and private sector in the design of those plans. The Lords got it right, and it is really disappointing that the Government, for whatever reason—ideological, perhaps—should now be seeking to remove this provision.
Andrew Gwynne
My hon. Friend the shadow Minister is absolutely right. When we look at what else is being deleted from clause 1, subsection (7)(b)(ii) talks about
“regional and local authorities, including the Mayoral Combined Authorities, within the specified area with specific reference to published plans and strategies which have been developed by these authorities”.
All those authorities have plans and strategies; I listed a number of them in relation to Greater Manchester. If the mayoral combined authorities are going to be involved in this, why take out a specific reference to the plans that have been developed by them? As I said previously, unitary authorities and county authorities have those strategies too, yet they have no say whatsoever.
Andrew Gwynne
I will give way to my hon. Friend the Member for Warwick and Leamington, because he was first, and then to my hon. Friend the Member for Kingston upon Hull West and Hessle.
Matt Western
My hon. Friend is making a powerful point, and I would like to draw him further on it. I accept and respect what the Government are doing with some of the allocations of moneys to towns through the towns fund and so on, but it seems odd that we have some visionary authorities, not just at county level but at town and district level, that are doing extremely good work—I include my own in that—and they are not included. They should be party to this. They know what they want to do, they know what they are capable of, they know the areas where they can develop and they need those skills to ensure it is realised. I emphasise that those sorts of authorities should be included as well.
Andrew Gwynne
I completely agree. Every layer of local government has an interest in the health and wellbeing—in the broadest sense—of the population. The best way to improve the health and wellbeing of the population is to ensure that people have good skills, good education and good job opportunities. That is the route to health and wellbeing, and that is true both at the district level and at upper levels.
Andrew Gwynne
It absolutely does not seem right. I have spent a lot of time on local government, but the same part of subsection (7)(b) that will be struck out if Government amendment 7 is made goes further. While the line
“draws on the views of…employers operating within the specified area”
stays in, regional and local authorities, mayoral combined authorities and their strategies are taken out, but so are
“post-16 education providers active in the specified area, including schools, further education institutions, community learning providers, specialist designated institutions and universities”.
It is incomprehensible that those bodies would not be part and parcel of the deliberations on and the creation of the strategies.
Matt Western
If I may make one final point to address my hon. Friend’s own point, universities and higher education providers across the country are working well—some extremely well—in collaborating and co-sponsoring courses with their FE institutions. The idea that they would be excluded from the plans seems beyond ridiculous.
Andrew Gwynne
It is barmy—there is no other word for it. We are here debating a Skills and Post-16 Education Bill and we are excluding the very bodies that have a direct interest in skills and post-16 education. I just do not understand the Government’s thinking. They have promised collaboration, but you cannot have collaboration if the people and bodies delivering the skills agenda on the ground are explicitly excluded from the creation of those plans.
Andrew Gwynne
I would like to know what the avenues are and why they are not in the Bill. If we are talking about developing a genuine partnership and collaboration, and if we are saying, “This is the skills agenda for our country. These are the needs of the next generation of workers in our country. This is where our country is heading with the jobs of tomorrow. This is the inward investment we want to bring in to our country. These are the things we want to make and do and build in our country,” we cannot do that just through business. Business is the way we create jobs, but it is educational institutions, universities and colleges that give the next generation the skills to deliver the strategy on the ground.
Matt Western
To give one simple example, and to be fair to the Government, the UK Battery Industrialisation Centre was developed through a university working with a local authority and a series of businesses. That is what we are talking about. It is about how we bring bodies together to develop plans, have a vision and then get the skills needed to deliver it. That is one brilliant example. We cannot have these plans simply designed by businesses.
Andrew Gwynne
No, we cannot. In other countries where there is a partnership between academia and industry, I have seen that the concepts of products are developed in universities, enterprise parks and science parks, and with the support of business they are brought to the market and developed across the world. I know that I have spoken a lot about Manchester, but one good example is the development of graphene by the University of Manchester. We are a world leader in that technology, and that was born out of genuine collaboration. Excluding universities and colleges from the plans for the economic development of our country is therefore barmy.
Skills and Post-16 Education Bill [ Lords ] (First sitting)
Matt Western Excerpts(2 years, 11 months ago)
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Mr Perkins
I am glad that the hon. Gentleman raised that question. That has long been the lament. I speak to my colleagues who were involved in skills policy under the Labour Government, and their retort is that the investment in skills under the Labour Government was far greater than what we have seen in the 11 years that followed. There is nothing contradictory in wanting a strategy that allows as many people who want a university education and who are capable of it to have one, and that also has a real commitment to investment in skills.
Over the 11 years of this Government, we have seen the trashing of the idea that universities should be an aspiration for everyone. Alongside that rhetoric—an example of which we have just heard from the hon. Gentleman—we have seen a massive reduction in the investment in skills, and we have seen policies that do not work. The apprenticeship levy led to a massive reduction in the number of apprenticeships. What is said is one thing; what is done is quite another.
Matt Western (Warwick and Leamington) (Lab)
Back in the mid-2000s, did not the Labour Government, who predated my time here, introduce national skills academies? The whole point of them was to develop skills across the piece and drive the development of courses that could run in colleges across the UK.
Mr Perkins
My hon. Friend makes an important point. We feel very strongly that we need investment in skills, but we also need a strategic approach that brings in different Government Departments and recognises that skills are the responsibility of not just the Department for Education, but of the Department for Business, Energy and Industrial Strategy and the Treasury. There has to be recognition that this is about the kind of economy, as well as the kind of skills system, that we are looking to build. My hon. Friend makes a powerful point on the Labour Government’s approach, and the investments they made.
Ben Bradley (Mansfield) (Con)
It is a pleasure to serve under your chairmanship, Mrs Miller. I will keep my comments brief, but I want to touch on some of the issues raised by colleagues.
First, LEPs, chambers of commerce and other instances of local involvement in skills plans have been mentioned. Some of those are excellent and some are awful. Will the Minister touch on what safeguards might exist for those plans, particularly in areas without combined authorities? Combined authorities have devolved local oversight or engagement in the plans, but for areas that do not, where will the safeguard be if chambers of commerce that are not delivering for business bring forward less effective plans?
Secondly, I should declare an interest as a local government leader in talks with Government about devolution. In all honesty, I would devolve adult skills to all upper-tier local authorities. However, recognising that areas with combined authorities will have local engagement in the discussion—the hon. Member for Denton and Reddish has mentioned future-proofing the Bill—does the Minister acknowledge that the Government are in talks about devolution with counties that will not be part of combined authorities, but that might have powers over adult skills? Is that something that has been considered in the wording of the Bill? Such areas might have that local input or devolved skills budgets and options available to them in future, although they might not be covered by the term combined authority.
Matt Western
It is a pleasure to serve under your chairship, Mrs Miller. As my hon. Friend the Member for Kingston upon Hull West and Hessle was saying, it is great to be in a room that contains so many educationalists and educators, including my hon. Friend and the hon. Member for Great Grimsby, who will bring a lot to bear on the Bill.
I will preface my remarks by turning to earlier comments on vocational qualifications and the relative value of one sector versus another. We must remind ourselves to talk about the HE sector as opposed to universities and think about the great breadth brought to our educational sector by higher education providers, who are diverse in nature.
On Government amendment 4, given that COP was a month ago and how disappointing it was, we must ensure that all Bills include elements that remind us of the importance of climate change, which is the issue of our time and that of decades to come. The Government are seeking to remove subsection (6), inserted by the Peers for the Planet group, which importantly sees LSIPs granted to authorities by the Secretary of State only if they comply with the duty in the Climate Change Act 2008. We must ensure that, at every opportunity, in every piece of legislation, that duty is embedded in our thinking, and future generations must know of our determination on that.
I am sure that the Government are committed to environmentalism—they certainly talk about their commitment—and addressing the issue. I urge Government Members to think about this measure as it is particularly important in terms of education and what is being shared with the next generation. I remind the Committee that it was a concession in the Lords, so I am surprised that it should be opposed in the Commons.
I turn to Government amendment 5. It is important when designating LSIPs to consider the views and wishes of the mayoral combined authorities and the Greater London Authority. The Association of Colleges made that clear when it said:
“The voice of employers is critical—but it is also important that LSIPs reflect wider priorities too”.
Through the pandemic, we should have learned just how important localism is. One of the great successes was the delivery of track and trace and the vaccine programme locally. The same should be said of how we design our needs for skills and education in our regions. The principle of subsidiarity—decisions being made at the local level—is really important.
Mr Perkins
My hon. Friend is making an incredibly important point. We have a couple of enthusiasts for devolution of power on the Government side of the Committee, but I fear they may be disappointed because the Government’s approach to devolution is very much less enthusiastic than that of the previous Conservative Governments in 2015 and 2017. The Bill, which seeks to bring a lot of power back to the centre, seems to prove that.
Matt Western
I agree with my hon. Friend, and I think many hon. Members, including the hon. Member for Mansfield, will be disappointed about that. It is really important that the Government send clear messages about devolution and what they want to see, but in many facets of Government business there seems to be a greater concentration of powers coming into Whitehall and Ministers’ offices than devolution to the likes of Mansfield, Manchester, Liverpool the north-east and so on.
As I said, one of the great learnings of the last 20 months is just how brilliantly our local services and authorities can deliver things. That is because they understand their geography, their communities and their populations. I am concerned about how due consideration, a much-vented issue in the last half hour, might work, particularly given the reliance on the personality of the individual who happens to be in the seat at the time. I will not go into any further detail on that because it has already been much explored.
Will the Minister provide a bit more information on what factors will be considered in the designation of an LSIP? The Local Government Association has stated:
“the reforms need to be implemented as part of an integrated, place-based approach. Without a meaningful role for local authorities, the reforms risk creating an even more fragmented skills system, with different providers subject to different skills plans”
I urge the Government and the Minister to listen and respond to the experience of the Local Government Association.
Emma Hardy
Let me offer the Minister a concrete example of the situation in Hull. We have the Hull and Humber chamber of commerce, which reaches over to the south bank, and we have a newly formed LEP that serves just Hull and the East Riding. We have a careers scheme for Hull and the Humber, and separate counties that have no overall mayoral authority, but an elected police commissioner for the whole of the Humber. To say that is muddled does not go far enough. I really feel that the amendment should make allowances for areas that are as muddled as Hull.
Matt Western
That is a good illustration of just how complicated these matters can be. I hope that there will be greater clarity on how the measures will work in future.
We have heard from colleagues how well things can work, including my hon. Friend the Member for Denton and Reddish, who told us about how Manchester is just getting on with it. Having been up there recently, I have seen the extraordinary work of that cluster of universities and colleges, and how they are co-operating and collaborating in their brilliant work to bring skills to their known geography—I want to place on the record how mighty impressive that was. I agree with the hon. Member for Mansfield on counties and how they work in their regions; that must be clarified as well.
Andy Carter (Warrington South) (Con)
I ran a business in Greater Manchester’s Media City for many years. I saw the work of universities; in fact, I saw the universities arrive in MediaCity while I was working there. It was employers who actually drove that forward. I have listened to Opposition Members talking about local government and universities driving things forward, but businesses have been driving forward the skills agenda in Greater Manchester for many years. We have to put on the record the important role that business plays in that. The skills agenda is not being driven by local government alone; businesses are really at the heart of it.
Matt Western
I knew it was Warrington. I thank the hon. Gentleman for his comments—I worked in the industry for many years myself. Businesses have an important part to play as consultees, but my concern is about the balance struck between what business wants and wider needs—we have to get an absolute balance between that.
To give the hon. Gentleman a small example, Warwick University, which is close to my constituency, was founded back in the 1960s, but it was founded off the back of the automotive industry. That did not mean that it should be an automotive industry establishment, and it is not. It happens to be one of the best universities in the UK and globally, but it was part founded by industry. That is where collaboration can work, and the last Labour Government certainly looked very closely at that when developing regional plans to promote industries. I take on board his point that industries and businesses have an important role to play as consultees, but plans should not be explicitly or purely at their direction.
Alex Burghart
What an interesting debate to start off the Committee stage of the Bill. There are so many comments to come back to. As a general observation, it was very nice to hear the hon. Member for Chesterfield praise Conservative predecessors of mine for their comments about an employer-led system, which we have indeed been building up during our time in power. The Bill is simply the next stage in that process.
The fact that that process was required was first highlighted in a 2011 report by the Labour peer Lord Sainsbury. I do not want to get into the deep politics of it—we have the Bill to consider—but that report was written after Labour had been in power for 13 years. He felt that it was necessary to begin long-term reform of the skills system to make it more responsive to the needs of business and to make sure that students could get the qualifications they needed and the technical skills to go into the jobs that the economy demands. It is a great honour to present the Bill as a means of taking those ideas on to their next stage.
I am grateful to the hon. Member for Chesterfield for saying that Labour will support the amendments and the local skills improvement plans. However, I need to clarify a point made by a number of Opposition Members: the Government are not removing clause 1(6). That seems to be a point of confusion. Clause 1(6) stands part of the Bill. Government amendment 5 would insert subsection (6A) to clause 1, on page 2, in line 32. It does not do anything to clause 1(6).
Mr Perkins
I agree with my hon. Friend. She is right that Government amendment 6 removes the words,
“in partnership with local authorities, including the Mayoral Combined Authorities and further education providers for the specified area”.
The Minister says that we should not worry, it will be in the guidance. However, the different approach by the Lords recognised that it was a genuine partnership. These organisations are now consultees that will make their representations to the chamber of commerce, and hope that the chamber of commerce smiles on the view they put forward. It is a totally different type of relationship. The relationship is either one of partnership or of subservience; the approach the Government choose to take is one of subservience.
Matt Western
My hon. Friend is making some very important points. On the face of it, it would seem that the Government seek to make local employers’ organisations ultimately responsible for the direction and control of our colleges, and potentially our universities as well.
Mr Perkins
In terms of areas that are not already devolved, that is absolutely right, and adult education budgets will be very relevant.
Hon. Members will be pleased to know that I will not dwell on the subsequent amendments, because we will have an opportunity to debate them, but I will touch on some of our concerns about the way in which the needs of learners might not necessarily be at the forefront of people’s minds in chambers of commerce. For example, to what extent will chambers of commerce be aware of the specific needs of people with education and healthcare plans or other disabilities? The amendments seek to reduce the extent to which it is partnership working and move to a hierarchy, with the chamber of commerce holding the pen and driving the bus, and others making suggestions about the route.
Rachel Hopkins
It is a pleasure to serve under your chairship, Mrs Miller. It is appropriate that I declare an interest as a vice-president of the Local Government Association and as a governor of the fantastic Luton Sixth Form College. I support the speech given by my hon. Friend the Member for Chesterfield, the shadow Minister; I was also very disappointed.
The irony is not lost on me that a slightly less democratic place wanted to put more democracy into this Bill, which I was very pleased to see. The Government amendments take out democracy by removing the references to local authorities and mayoral combined authorities. I heard the Minister’s comments about expecting it to be collaborative and wanting good will between the different organisations. In order to ensure that all parts—the legs of the chair, so to speak—are in the Bill, the amendments made in the House of Lords should stay there.
I have a great passion for local authorities and the role they play in adult education. They have already been doing great work, understanding their own areas. In the general debate the point was raised about the role that locally elected leaders, local authorities and combined authorities play in place making, and the skills agenda is key to that. One of the points that has not been referred to specifically comes under amendment 7, which would take out the reference to the “long-term national skills” strategies. That is wholly important and not just secured through local businesses thinking about the skills they need roughly now. Retaining that reference to the long term and the statutory responsibilities of local authorities and combined authorities in the Bill would create a much firmer and stronger situation in our local areas. I speak as a former councillor on Luton Council. Great work is done at local grassroots levels.
Matt Western
It is generous of my hon. Friend to give way. She was in full flow and I did not want to interrupt her. In response to her point, it is fine to consult and get the views of businesses in developing a plan, but they do not necessarily know what is coming down the track: future opportunities, future business and future sectors that do not even exist yet. That is why it is important to keep as broad a base as possible. That was one of the points she was making well, but I wanted to amplify that.
Rachel Hopkins
I thank my hon. Friend for that fantastic intervention. It leads on to a couple of other points about those who are not in employment, and particularly local authorities with responsibility for young people who are NEET—not in education, employment or training. It is absolutely vital that those are addressed and that they have a formal seat at the table in that area. Equally, on my hon. Friend’s point about looking to the future, local authorities do a great amount of work to understand their populations and trends so they can project how many young people are coming through or whether school or training places will be needed. Employers do not always have easy access to that, but local authorities need to have an equal seat at that table in developing the plans, rather than just being tucked away in some statutory guidance. We know what happens with guidance; it is just guidance and it is often ignored.
Rachel Hopkins
My hon. Friend also must have eyes in the back of her head, because one of the other points I want to talk about is health and social care. Again, I will talk about my fantastic home town of Luton. Someone can study for a BTEC in health and social care at Luton Sixth Form College, or study at the University of Bedfordshire and get practical skills training as a nurse, paramedic or midwife, before going on to be a nurse, paramedic or midwife at Luton and Dunstable University Hospital. All of those bodies will not be included in developing a skills plan if they are not set out in the Bill. I want to see them included, so that everyone feels that there is equality of partnership work, to ensure that what is needed is recognised.
I will not prolong my remarks any longer, but I just want to reiterate the points made from the Opposition Front Bench and say that taking out these important clauses that were inserted by the Lords weakens the Bill.
Matt Western
What is concerning about these amendments is the direction of travel. What is it that the Government are trying to achieve by removing these Lords amendments, because they seem to be incredibly positive and constructive about getting the right and relevant organisations across the piece to be involved in the development of a plan? The idea of a LSIP is a very good thing, but it must draw on the skills, knowledge and expertise of these bodies from a region, so that they can bring them to bear on the design of a LSIP, to ensure that the present and future needs of a region can be met.
My fear, having listened to the debate over the last few minutes, is that there is a horrible parallel with what is going on with the integrated care systems, whereby we are seeing more involvement by the private sector and a diminution of the provision from the public sector. When we look at individual placement and support, or IPS, we see that there is an absolute withdrawal of the public sector. The public sector will also have little to no say on what will happen with the delivery of skills in a region. That runs counter to what the Local Government Association believes.
The LGA says in its written evidence that it believes
“the reforms need to be implemented as part of an integrated, place-based approach.”
We have also heard evidence from the Association of Colleges, which said it was
“disappointed the Government have tabled an amendment to remove”
the reference to post-16 education providers. It is quite rightly disappointed.
Warwickshire College Group, based in my town, is a huge college that covers Warwickshire—I think it is still the sixth largest in the country, so it is a college of some substance. It wrote to me to say that it wants to ensure that colleges are co-constructing LSIPs with employers and that it very much needs to be involved, because it is within the power of colleges to further think strategically—that comes back to the point I was making earlier—and innovate for the skills needs of their communities.
We have also heard from the Workers Education Association. Its submission said:
“We are pleased that the Bill…should “draw on the views of”…further education institutions, community learning providers”,
and others, and that:
“We hope to see this retained and strengthened in the…Act.”
Then we get to organisations such as Central YMCA, which said that, as an independent training provider, it believes it is vital that LSIPs should draw on the views of organisations such as themselves, as well as those of schools and FE colleges.
The LGA believes that the Lords amendment should be maintained, to ensure that all employer representative bodies across England should
“work with local democratic organisations to better coordinate provision and align pathways of progression for learners.”
Andrew Gwynne
My hon. Friend the shadow Minister is absolutely right. When we look at what else is being deleted from clause 1, subsection (7)(b)(ii) talks about
“regional and local authorities, including the Mayoral Combined Authorities, within the specified area with specific reference to published plans and strategies which have been developed by these authorities”.
All those authorities have plans and strategies; I listed a number of them in relation to Greater Manchester. If the mayoral combined authorities are going to be involved in this, why take out a specific reference to the plans that have been developed by them? As I said previously, unitary authorities and county authorities have those strategies too, yet they have no say whatsoever.
Andrew Gwynne
I will give way to my hon. Friend the Member for Warwick and Leamington, because he was first, and then to my hon. Friend the Member for Kingston upon Hull West and Hessle.
Matt Western
My hon. Friend is making a powerful point, and I would like to draw him further on it. I accept and respect what the Government are doing with some of the allocations of moneys to towns through the towns fund and so on, but it seems odd that we have some visionary authorities, not just at county level but at town and district level, that are doing extremely good work—I include my own in that—and they are not included. They should be party to this. They know what they want to do, they know what they are capable of, they know the areas where they can develop and they need those skills to ensure it is realised. I emphasise that those sorts of authorities should be included as well.
Andrew Gwynne
I completely agree. Every layer of local government has an interest in the health and wellbeing—in the broadest sense—of the population. The best way to improve the health and wellbeing of the population is to ensure that people have good skills, good education and good job opportunities. That is the route to health and wellbeing, and that is true both at the district level and at upper levels.
Andrew Gwynne
It absolutely does not seem right. I have spent a lot of time on local government, but the same part of subsection (7)(b) that will be struck out if Government amendment 7 is made goes further. While the line
“draws on the views of…employers operating within the specified area”
stays in, regional and local authorities, mayoral combined authorities and their strategies are taken out, but so are
“post-16 education providers active in the specified area, including schools, further education institutions, community learning providers, specialist designated institutions and universities”.
It is incomprehensible that those bodies would not be part and parcel of the deliberations on and the creation of the strategies.
Matt Western
If I may make one final point to address my hon. Friend’s own point, universities and higher education providers across the country are working well—some extremely well—in collaborating and co-sponsoring courses with their FE institutions. The idea that they would be excluded from the plans seems beyond ridiculous.
Andrew Gwynne
It is barmy—there is no other word for it. We are here debating a Skills and Post-16 Education Bill and we are excluding the very bodies that have a direct interest in skills and post-16 education. I just do not understand the Government’s thinking. They have promised collaboration, but you cannot have collaboration if the people and bodies delivering the skills agenda on the ground are explicitly excluded from the creation of those plans.
Andrew Gwynne
I would like to know what the avenues are and why they are not in the Bill. If we are talking about developing a genuine partnership and collaboration, and if we are saying, “This is the skills agenda for our country. These are the needs of the next generation of workers in our country. This is where our country is heading with the jobs of tomorrow. This is the inward investment we want to bring in to our country. These are the things we want to make and do and build in our country,” we cannot do that just through business. Business is the way we create jobs, but it is educational institutions, universities and colleges that give the next generation the skills to deliver the strategy on the ground.
Matt Western
To give one simple example, and to be fair to the Government, the UK Battery Industrialisation Centre was developed through a university working with a local authority and a series of businesses. That is what we are talking about. It is about how we bring bodies together to develop plans, have a vision and then get the skills needed to deliver it. That is one brilliant example. We cannot have these plans simply designed by businesses.
Andrew Gwynne
No, we cannot. In other countries where there is a partnership between academia and industry, I have seen that the concepts of products are developed in universities, enterprise parks and science parks, and with the support of business they are brought to the market and developed across the world. I know that I have spoken a lot about Manchester, but one good example is the development of graphene by the University of Manchester. We are a world leader in that technology, and that was born out of genuine collaboration. Excluding universities and colleges from the plans for the economic development of our country is therefore barmy.
Skills and Post-16 Education Bill [ Lords ] (Second sitting)
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Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is a pleasure to serve under your chairship, Mr Efford. I rise to speak in favour of amendments 27 and 28 in my name, and amendments 1, 2 and 3, in the name of my hon. Friend the Member for Rotherham. I want highlight that the Library briefing on the Bill states that 18% of the learners currently in the FE and skills sector have a recognised learning difficulty or disability. When we talk about people with disabilities, we are not talking about a very small minority; we are talking about 18% of those people. The amendments that I and my hon. Friend the Member for Rotherham have tabled are very similar. They all basically try to do the same thing: to ensure that the voices of disabled people are heard and recognised in the Bill. They also address the disability employment gap. Mr Efford, I should have mentioned that I am vice-chair of the all-party parliamentary group on SEND, which is where a lot of my interest comes from. I know from the work of the APPG and on the amendments that there is a lot of cross-party support for these measures, which we also saw in the Lords. This is not a party political issue. I hope the Minister takes it seriously.
Recent figures show that disabled people have an employment rate that is 28.4 percentage points lower than people who are not disabled. There is a huge disability employment gap and the amendments hope to address that. I recognise that the issue is complex and that there are a number of Government initiatives to address it, but it would be a missed opportunity not to use the Bill and the new process of skills planning that it brings about to help ensure that people with disabilities can contribute to their local economy and that their voices are heard in the discussion of what that local economy should look like. All too often, people with disabilities feel that their voices are not heard. The amendments aim to ensure they are listened to and recognised, and that some action is taken on the disability employment gap. That is the aim of all the amendments in my name and that of my hon. Friend the Member for Rotherham.
Matt Western (Warwick and Leamington) (Lab)
I welcome you to your place, Mr Efford. I want to lend my support to my hon. Friend the Member for Kingston upon Hull West and Hessle and others on this group of amendments. They seek to ensure that the LSIPs take the needs of disabled people and those with special educational needs into account.
Currently, further education caters for a large number of students with such needs, which can be complex. The latest data shows that roughly half of disabled people are in employment—just 53%—compared with just over four out of five non-disabled people. The employment rate for disabled people with severe or specific learning difficulties was 18% back in 2019, the lowest rate of any impairment group. The House of Commons Library briefing notes that 52% of disabled people were in employment, down from 54%, which is really concerning.
The Workers Educational Association notes that
“adult learners in community provision are those with low or no qualifications, who require the most support in order to progress to higher level qualifications.”
Learning disabilities add to that complex state of affairs, which justifies the inclusion of an amendment to provide more support for people with learning disabilities. In its evidence to the Committee, Engineering UK said:
“38% of respondents…reported a lack of role models to be a barrier for pupils with special educational needs”.
One of the employers in my region, the National Grid, is doing extraordinary stuff in engaging and giving work opportunities to young people with complex needs, through its EmployAbility scheme. It is an exemplar project that it has been running for several years.
Those are some of the reasons why the amendments are important to the Bill. The Government’s impact assessment says that those from SEND backgrounds are “disproportionately” likely to be affected, and it is therefore a cruelty not to legislate where possible to mitigate that disproportionate impact. We think it is vital that such provisions be written into the Bill, which is why the amendments have been tabled. We need to highlight the challenges and make sure that we are as inclusive a society as possible, and that we allow for the needs of people with SEND in skills provisions.
The Parliamentary Under-Secretary of State for Education (Alex Burghart)
It is a pleasure to serve under your chairmanship, Mr Efford. I rise to speak to amendments 1, 2 and 3 tabled by the hon. Member for Rotherham, amendments 27 and 28 tabled by the hon. Member for Kingston upon Hull West and Hessle, and amendment 34 tabled by the hon. Members for Chesterfield and for Warwick and Leamington.
Those amendments all relate to LSIPs and the importance that we all place on improving the employment prospects of people with disabilities. The criteria for designation of employer representative bodies in the Bill are intentionally focused on the key characteristics and capabilities required for that specific role. We do, of course, want all employers to demonstrate good practice in equality and diversity in employment, including in relation to disability. The Bill is clear that LSIPs should draw on a range of evidence, but we do not consider it appropriate to list all that evidence in the Bill. Instead, I assure Opposition Members that we will set out further details in statutory guidance and continue to engage key stakeholders representing learners with special educational needs and disabilities as that guidance is developed.
The guidance will make it clear that employer representative bodies should absolutely engage groups that can help them to understand the needs of learners with disabilities and the barriers they face, and consider how people with disabilities can be supported to progress into good jobs that meet local skills needs, thereby supporting activity to reduce the disability employment gap. In the work I have been doing in the run-up to the Bill, among many other stakeholders, I spoke to a specialist college in Kent, which had a very powerful message for me. They said that they had catered for a lot of young people whom they believed had a bigger role to play in the local economy, which would be good for employers and the economy, but particularly important for the individuals themselves. That very much reflects my own experience.
For eight years, I was vice-chair of governors at a special school for children with autism in west London. It was an excellent school, not because of my vice-chairmanship but because we had an exceptional head and exceptional staff. It started as a primary school, but went on to become an all-through school. The work the school was engaging in when I left to enter politics was to make sure that it could help young people—often with really profound needs—to transition into the workplace. The alternative for too many people is a life of isolation and loneliness.
I commend the work that the hon. Member for Kingston upon Hull West and Hessle is doing on the APPG. I am sure that the APPG will want to look at the statutory guidance when it comes out and feed back to us, and we welcome that conversation. There are great opportunities here for dialogue between the ERBs, local providers, and local disability groups to make sure that the needs and the talents of young people with special educational needs are reflected.
Mr Perkins
My hon. Friend puts it very well.
Amendment 41 asks the Secretary of State to publish guidance relating to implementation, subject to consultation with the metro Mayor or relevant local authority. Under the terms of the Bill, the Secretary of State has the potential to amass new powers, which could be used without appropriate consultation or due diligence. We can see the hand of the right hon. Member for South Staffordshire (Gavin Williamson) right through the Bill. I am confident that if the Bill had been devised when the current Secretary of State had been in place for a year or two, it would look very different. The sense of a man who had lost control and was desperately trying to get back control runs right through the Bill.
Our amendments seek to establish a clear duty for the Secretary of State to consult with combined and local authorities before local skills improvement plans are finalised in areas that do not have metro Mayors, ensuring that the relevant local representative bodies are part of the formation of a board. It is about bringing together the various different organisations that would make up a strategic approach to skills. We are saying that, if there is not an employer representative body that is able to broadly represent private and public sector employers, further education colleges, independent training providers and such, the Government should appoint a board made up of those in order to deliver that local skills improvement plan, rather than the current approach, which is just a single body. Amendment 44 says that colleges and other providers
“may propose revisions where they consider that the plans do not appropriately reflect the full diversity of priorities across the locality.”
I am keen to hear the Minister’s response to the amendments.
Matt Western
My hon. Friend has given a thorough analysis on all these amendments; I will just pick up on a couple of points. On amendment 33, I want to highlight how important the skills and productivity board is, given where the country finds itself in terms of its poor productivity relative to most of our economic peers—not just in Europe, but across the globe. We have to work much more closely with that board; that is what amendment 33 is driving at, and that is why it is important to include it.
I will talk specifically about amendment 38, which is on distance learning. There are 70% fewer new part-time graduates entering and accessing higher education every year compared with a decade ago. Distance learning is really important; it is a brilliant way of encouraging people to pick up part-time study. The Open University has 72% of students in full or part-time employment. We are seeing a very concerning regional picture; the Open University’s statistics show a 40% fall in higher education participation in the north-east of the country, and a 32% fall in the north-west and Yorkshire. If the Government are really serious about their agenda, surely we have to provide and invest in more and better opportunities for distance learning—that is why amendment 38 is important. The cost of study is obviously one of the biggest barriers to adult learning. If we consider the needs of distance learners, that barrier is eradicated.
We all know that the Open University is a great institution, started in the 1960s—we will claim that as a terrific Labour success. I do not think any of my colleagues were around at that time, so none of us can claim it in particular. However, it was a great success, and I think that societally, culturally and economically we have benefited greatly from that particular institution. It is one of the five biggest higher education providers in 90% of parliamentary constituencies. It is really important that all of us remember the contribution that it makes. The Open University is also the largest HE provider in 63 of 314 English local authorities—that is 20%. It is also worth highlighting that it is a substantial provider in what might be called higher education “cold spots”, where there is limited face-to-face provision. The importance of distance learning in our education provision must be underlined.
Amendment 41 makes sure that local and combined authorities are consulted on the LSIP before roll-out. I want to echo the previous calls on the importance of including our health boards in the process. In the pandemic, we have seen the importance of local public health provision in regions, and the skills needed to be able to provide that are absolutely essential. We must be clear about how important it is to achieve the regionalisation of drawing those skills. In the visits that have been making up and down the country, that is something that has been made loud and clear to me by colleges and HE providers.
Devolved responsibilities are important but so too is the national strategy. That strategy should be extended across the Department for Education, the Department for Work and Pensions, the Business, Energy and Industrial Strategy Department and what I would call DHCLG – the Department for Housing, Communities and Local Government as was. The Association of Colleges wrote to say that it wanted to
“enshrine the creation of a national 10-year education and skills strategy sitting across government to deliver on wider policy agendas and to give stability to all parts of the system.”
It added:
“there is a lack of a comprehensive, long-term education and skills plan that brings together all parts of the system towards the same vision…this means that the role of education and skills in addressing wider policy priorities and strategies are not always recognised, for example the role of colleges in welfare, health and net-zero policies.”
I spoke about health a moment ago, but let us consider net zero policies. The Government understand their importance but I want to centre on two things that are massive national issues right now and should be critical to the skills strategy. The first is the delivery of an electric vehicle infrastructure plan, on which we way off the pace. We need to get the skills out there to put in place the necessary infrastructure. We have a growing market for electric vehicles—potentially for hydrogen vehicles as well but EV is the critical one. Manufacturers are making the vehicles, but we do not have the necessary public charging points. We are behind the curve compared with our European neighbours and other leading global economies. That is the sort of stuff that a national strategy could help to deliver. If we are serious about the sustainability agenda, the amendment can help to deliver it.
Andrew Gwynne (Denton and Reddish) (Lab)
It is a pleasure to serve under your chairmanship, Mr Efford. I echo what my hon. Friend the Member for Warwick and Leamington said about amendment 39, particularly the need for a national strategy for education and skills. It is perfectly reasonable to expect such a strategy. The driving force for it must come from Government, and monitoring of progress across the country must also come from Government. In that way we can ensure that every part of England is firing on all cylinders, narrow the gap and properly ensure that every part of the country is performing as it should.
My hon. Friend is absolutely right to highlight the productivity gap, because that is a serious problem not just across the country and for the national economy, but within different regions and sub-regions; some are performing very well, others less so. We need a concerted effort across Government and all Departments. If we are serious about levelling up, obviously the Department for Levelling up, Housing and Communities must be at the heart of that along with the Department for Education, BEIS and, I would argue, the Treasury. If we do not have buy-in from the Treasury to ensure that economic growth is spread fairly across the country, any national strategy is doomed to failure.
I am a devolutionist as well; I want to see strategies developed locally that meet the needs of the locality. That was put perfectly when we talked many years ago about health devolution and Greater Manchester in particular, which had responsibility for health devolved to it. Of course, it remains part of a national health service, just as any local strategy would remain part of the national skills strategy. The “what” is set at the centre, but the “how” is determined locally to meet the needs of that locality. That is exactly what the amendment is designed to achieve.
Matt Western
To illustrate that point, clearly in the health sector we need to assess what the challenges are for our communities and populations. While there is a national picture, there will be different needs in a city such as Coventry, which is close to me and has one of the youngest populations in the whole of the UK, versus a pleasant coastal area, which might be an area that people retire to and will have particular needs as regards the provisions for health.
Rachel Hopkins
My hon. Friend makes an excellent point. Exactly that—this is an employer representative body. The Bill must be open and explicit about ensuring that the public and voluntary sectors, and others—small businesses, the self-employed—have a seat at the table, through whatever mechanism. It is for them to outline how they wish to do that, but perhaps through something like the Federation of Small Businesses. I think that is vital, because otherwise it just gets lost in the grain. If the measure is to be a success in pushing forward on the skills agenda, we need to be explicit about who is at the table, who is shaping the plans and which areas. I hope that the Minister addresses my comments in his response.
Matt Western
Briefly, the amendments seek to reflect the reality on the ground, as we have heard. Let us think about HS2 and what has been happening. We have had years—decades—of plans for HS2, but we have seen skills sucked out of the regions so that we cannot get normal construction projects completed. That is because there has not been the co-ordination that there should have been. How was that allowed to happen? The result has been a huge impact on our regional economies.
Amendment 35 looks at the inclusion of public and private sectors as employers on the ERB. How can we not include the national health service, for example, and yet are able to include Virgin Care or Circle and others? It is bizarre that the public sector is not included.
On linking to the public sector, amendment 46 also seeks to include other employers, such as SMEs, the self-employed—as my hon. Friend the Member for Chesterfield said—and public and third-sector employers. Right2Learn, in a written submission, stated:
“We believe it is critical that local skills and training strategies need to look far more widely at including third sector organisations, as well as HE and FE providers. There must be far more opportunities for the direct involvement of SME clusters and organisations and the so-called gig economy which the Taylor Commission highlighted, including co-operatives and self-employed.”
I have said before, we must include charity-heavy provision and I gave the example of the Workers’ Educational Association.
Amendment 46 states that we need to include the third sector and the local health boards. As I said, we have seen how good that can be through the pandemic. Local primary care networks and public health in our localities really stepped up and showed that what they do is what they know, which is their regions, their populations and their geographies, to deliver good services. The same would apply to the provision of skills across our regions.
Alex Burghart
I rise to speak to amendments 35 to 37, 42, 45 and 46. Amendment 36 would require designated employer representative bodies to be reasonably representative of a broad range of local stakeholders. We have already been clear that we want local skills improvement plans to be employer led, which means led by genuine employer representative bodies, but we have also been very clear that designated employer representative bodies should work closely with key local stakeholders to gather intelligence and consider their views and priorities when developing local skills improvement plans.
That includes local post-16 technical education and training providers and mayoral combined authorities, which, through our Government amendment, are already specified in the Bill as playing a key role. It also includes local authorities and local enterprise partnerships, among others. This will be covered in more detail in the statutory guidance.
Amendment 45 seeks to test how the Secretary of State will determine what mix of employers is considered “reasonably representative”. When making a judgment on whether an ERB is reasonably representative, the Secretary of State will take into consideration the characteristics of its membership compared with the overall population of employers in the area. That speaks to the point that a number of Opposition Members have made.
We certainly expect designated employer representative bodies to draw on the views of a wide range of local employers of all sizes, reaching beyond their existing membership and covering both private and public employers. They will also need to draw on other evidence, such as other representative and sector bodies, to summarise the skills, capabilities or expertise required in a specified area. That type of engagement is already happening, and happening brilliantly, in our trailblazer areas.
Amendment 35 seeks to ensure that designated employer representative bodies are reasonably representative of both public and private sector employers. The Bill already ensures that that is the case. Clause 4 gives a definition of “employer” for the purposes of interpreting clauses 1 to 3 that covers public authorities and charitable institutions—to the point made by the hon. Member for Luton South—as well as private sector employers.
Amendment 46 seeks to ensure that designated bodies represent the interests of small and medium-sized enterprises, the self-employed, and public and voluntary sector employers. Public and voluntary sector employers are also already covered under the definition of employer in the Bill. Designated employer representative bodies must of course represent the interests of small and medium-sized enterprises in order to be reasonably representative.
Many existing employer representative bodies already do this effectively. For example, SMEs comprise the vast majority of the membership of local chambers of commerce. In drawing on other evidence, designated ERBs may also need to consider the key skills needs of the self-employed in order to effectively summarise the current and future skills required in the area, and that will be referenced in statutory guidance.
Amendment 37 concerns a scenario where the Secretary of State is not satisfied that there is an eligible body within a specified area that is reasonably representative of local employers. We have thought about that, but we really do not think it is likely to happen. Although the “Skills for Jobs” White Paper mentioned accredited chambers of commerce, there are other employer representative bodies with either a national or local presence. We saw evidence of that from the expressions of interest process we ran to select the local skills improvement plan trailblazers, for which we received 40 applications despite only looking for six to eight trailblazers. Many hon. Members today have spoken about chambers of commerce, but the Government are entirely open to representatives from the Federation of Small Businesses and other geographically based organisations that could also be eligible.
Oral Answers to Questions
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Nadhim Zahawi
Indeed I do, and he is a great Mayor who is transforming the city of Birmingham and the rest of the west midlands. My hon. Friend is right to remind the House that subjects such as PPE are incredibly important and that many leaders in industry do not necessarily have STEM degrees.
Matt Western (Warwick and Leamington) (Lab)
I welcome the Secretary of State to his place. As a neighbour, and possibly a friend, it is good to see him here.
This nation has long produced some of the best creatives in the world—in fact, the arts are a powerhouse for the country’s economy—yet the Government have a myopic view on the value of everything. Their present focus is that ballerinas should be coders, but for decades people from low-income households in particular have not just benefited from their discovery and study of the arts but gone on to enrich this country of ours and, at the same time, generated soft power. I think of people such as Danny Boyle, Tracey Emin, Annie Lennox, David Bowie and Alison Lapper—the list is endless. People’s lives are infused with the arts as they listen to music on their iPods, read fiction, attend museums and watch TV dramas, dance and so on. Given that the UK creative industries are truly global-leading and make such a significant contribution to our economy, why are the Government so determined to limit people’s social mobility and our wider economic success?
Nadhim Zahawi
I am grateful to my hon. Friend—I think he is—for his question, although I completely disagree with him. Nevertheless, it is important to remember that the arts play an incredible role in enriching minds, especially young minds, and in inward investment to the United Kingdom and exports from the UK. We continue to value high-quality provision in a range of subjects critical to our workforce, including the arts. That is why I mentioned the work of the Office for Students in reinvesting an additional £10 million in our world-leading specialist providers, many of which specialise in arts provision.
University Tuition Fees
Matt Western Excerpts(3 years ago)
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Matt Western (Warwick and Leamington) (Lab)
Welcome to the Chair, Ms McVey, and congratulations on your elevation.
I thank all Members who contributed to the debate, and the hon. Member for Ipswich (Tom Hunt) for presenting it. I listened to him with interest. He is right when he talks about the very interrupted last 18 months that students have endured and the great challenges they have faced. Many Members across the Chamber highlighted the deep frustration among students in this country, which is quite understandable, and perhaps their rising anger about what they have been through. As my hon. Friend the Member for Slough (Mr Dhesi) said when voicing concern about graduate employment, this is a really difficult time for many young people as they emerge from what should have been an amazingly formative part of their lives, only to find their prospects so reduced, despite the difficulty they have faced and the financial commitment they have made. That is the difficulty that some of us were in 30-odd or 40 years ago, emerging from university in the early ’80s when things were so difficult.
My hon. Friends the Members for Poplar and Limehouse (Apsana Begum) and for York Central (Rachael Maskell) also spoke about the issues facing students in the past 18 months. My hon. Friend the Member for Poplar and Limehouse specifically spoke about disadvantaged students and cited the survey about Muslim students and the difficulty they face in financing their higher education. My hon. Friend the Member for York Central talked about how we should fund this in the future and about progressive taxation. Back in my day, that is how a university education was funded. I do not think any of us back in those days saw education as transactional; it was not individualised in the way that it is today. We have to disconnect the current view of education—that it is all about the individual—and make it about what the individual can gain from it, how they can realise their potential and how that potential can benefit not only them but those around them: society, their communities and others. That is what higher education should do.
I accept that higher education should not be for all, but it should be an aspiration and an opportunity for those who have the ability to benefit from it, with society benefiting in turn. My hon. Friend the Member for York Central and the hon. Member for Glasgow North West (Carol Monaghan) mentioned how higher education is viewed in Germany, which has a population 60% larger than the UK’s and where a great many go on to higher education, with nominal admission fees, because there education is seen as being for the greater good.
We also have to bear in mind that higher education is part of our global reputation. We should celebrate and build upon it, rather than seek to reduce it. I say that not only for the institutions themselves. With such a great resource on our doorstep, why would we not use it? We do not want only international students to come to the UK; we want all those in the UK who have the ability to benefit from it.
Almost 600,000 students across the country signing the petition is significant. I have to say to those students who did not sign the petition, why not? They should think about it next time. It is a really important demonstration of the frustration and of the demand for change. The last 18 months have instilled a culture of precarity, uncertainty and instability among students. They have been some of the toughest months that any student in any generation has faced.
I remember what was going on in my community during the Government’s mismanagement of the return to campus in September 2020, when we did not have testing facilities available in towns and cities across the country. The great migration was not anticipated. The uncertainty created by poor guidance affected not just students, but teachers and lecturers. Sadly, this led to regrettable scenes of students being locked up in student accommodation. Demands from the student body were woefully neglected in the road map out of the January lockdown, and we saw unjustified intervention by Ministers in what I regard as campus matters. Among student cohorts and the sector, there is an indelible impression that the Government have failed to support them.
Given that education is devolved and we have heard from the hon. Member for Glasgow North West, we do not have to look far to see how supportive and hands-on the Welsh, Scottish and Northern Irish Governments have been. No wonder the tenor of students has risen; it is more than understandable why such a large proportion of the student body want fees to be cut to the level that was introduced in 2006.
Although I empathise with these calls, I want us go further. As the hon. Member for Glasgow North West said, higher education should be about people’s ability to learn, not their ability to pay. In my opinion, reducing the maximum rate of student fees merely tinkers with the fees’ structure without offering root-and-branch reform. The trebling of student fees by successive Conservative Governments, including when in coalition with the Liberal Democrats, established a funding model that has contributed to the marketisation of the higher education sector, whilst at the same time increasing the casualisation of the workforce and risking the student experience. The fee system in its current guise is holding young people back—we have heard about a great many of them in Slough—and at the same time failing to provide the stable funding that our universities need. It is not even delivering what was promised for the taxpayer.
To those who say that reducing the maximum student loan rate is preferable to not reducing it, I reply that I am not prepared to advocate for a partially effective solution. On the basis of independent analysis by bodies such as the Institute for Fiscal Studies, a policy of reducing fees to £3,000 would have disproportionate impacts on different sections of society. For example, the IFS’s student finance calculator reveals that if a cap of £3,000 is put in place, the top 10% of earners would see their repayments fall by around 40%, while lower earning graduates would see little or no change. Looking at this policy from a gender perspective, we see that for men repayments would reduce by an average of 30%, compared to a reduction of just 20% for women. I am sure you are also outraged by that, Ms McVey. We also heard from my hon. Friend the Member for Poplar and Limehouse that this disproportionately impacts Muslim students. Although the maximum cap on tuition fees is not an inherently sexist or classist policy, in reality it affects many and it has the potential to exacerbate existing inequalities in our society. That is not something that I am prepared to put up with.
I am also not prepared to put up with a fee structure that aggravates precarious student living, does nothing to alleviate the mental health concerns of thousands of students, and alienates working-class young people from advancing to higher education. Faced with fees of £9,250 a year, how could anyone expect a working-class student on free school meals to be instilled with the confidence to go to university? The figures bear this out: last week, the Department for Education’s own figures demonstrated that the gap in progression rates between pupils who receive free school meals and those who do not has increased to 19.1%, up 0.3% since last year and the largest gap since 2005-2006. Again, although the policy of student fees is not necessarily a causal factor in this damning record, it certainly is a correlative factor. I repeat that the gap is the largest since the introduction of tuition fees in 2006.
The effects of the current fees system have also decimated the part-time study model so often relied on by working parents and mature students. Since 2008 the number of part-time entrants has plummeted by 50%.
Matt Western
The current vogue term is outcomes. I often ask, “What was the key outcome of Keith Richards going to art school?” I do not think he actually finished the course, so it was not a terrific outcome. Outcomes can be measured in all sorts of ways, but my fear is that the Government—I am not sure whether the hon. Gentleman supports them—are looking to monetise that and equate it with some sort of financial value for what is being produced. However, as we have heard, we cannot equate that with a monetary figure. I know of many people who were on super-low incomes in their first couple of years post-university but who turned out to be fine entrepreneurs and set up their own businesses. How would we measure that?
Carol Monaghan
I like the word outcomes; I think it is a good way of describing the position we get to. However, I do not distinguish between those from a disadvantaged background and those from a more privileged or affluent background. We will have parity of esteem when the same number of youngsters from different backgrounds are going to the same types of places—so, whatever percentage going to university from that lot, and whatever percentage going to college from this lot. The problem is that those from a more affluent background are more likely to go to university, even though it might not be the most appropriate place for them.
Matt Western
The hon. Lady is absolutely right. Going to university is seen as a rite of passage for quite a few people. It is seen as the obvious next stage of their education. That is fine, to an extent, but what we as a society should be doing is giving encouragement and opportunity to the many who do not aspire to or imagine that they could go to university. I felt that myself back in the day, wondering what was and was not possible for me. I never imagined that that was something I could consider. I am sure that a lot of young people must feel that too, and we have to change that. Other societies do, as we have heard.
We should be much more ambitious about the sort of education system we want. I look at nations such as South Korea, that have a higher proportion going into higher education than the UK. I believe that we can achieve that by changing how we approach our schooling and how we give that opportunity to students, both through civic universities and through programmes such as Uni Connect, which sadly has had its budget cut by a third, but which was doing a terrific job in reaching those hard-to-reach young people who did not think that university was necessarily for them. Those sorts of programmes, along with foundation courses and foundation years, could do so much to help students coming through further education and realising that, maybe, the next step should be higher education. We need to invest more in those sorts of things.
While I understand the many concerns of the thousands of students up and down the country, and sympathise with their calls for a higher education system that is suitably funded while delivering on students’ expectations, I believe that the answer lies in a multi-step approach. First, as I have alluded to, I am committed to abolishing the fee regime in its current guise. That means that debates regarding repayment rates, characterised by Martin Lewis as regressive and a “breach of natural justice”, would be consigned to history. Graduates would no longer be burdened with as much as £57,000 in graduate debt and would start their working lives free from the stress and financial pressures of repayment.
We have only to look at what is happening on campuses across the country and the immense mental health pressures faced by so many young people, due not only to the pandemic, but to the issue of graduate employment opportunity and having that debt hanging over them. Those of us who have ever been in serious debt at any stage of our lives know that it is an awful place to be. Those of us who have ever been in serious debt at any stage of our lives know that it is an awful place to be. The hon. Member for Ipswich described the prospect of having the debt hanging over him and the difficulty it posed when getting a mortgage or other loans. It can make life incredibly difficult, so it is far easier not to consider it. The Government need to rethink their approach to the availability of maintenance grants. That might finally tilt the balance in favour of the thousands of working-class men and women on free school meals, who have been denied the belief that they can progress to higher education due to a burdensome funding model.
I want a culture change to complement a fee system change, such as adequate student mental health provision and funding, and tackling those rogue student landlords in private student accommodation who give the sector a bad name. There is much to address to improve the lives of our students. I want more teachers and lecturers on full-time secure employment contracts, to reverse the drift towards casualisation that we have witnessed in the past decade.
Following the events of the past 18 months, it is critical that the Government work collaboratively with the sector to address the many issues it faces. Through the co-operation of the National Union of Students, individual student unions, the University and College Union and the institutions themselves, so much positive work has been done on our campuses to get through the worst difficulties of the pandemic. We have seen some interesting initiatives, such as the Welsh Government’s support for institutions to improve ventilation in lecture theatres. Those sorts of ways that the Government can help have the effect of shoring up the entire student experience.
I believe the petition is a great call for change. While replacing the student funding model will naturally bring about an improvement in the student experience, it can be fully revolutionised only through a plethora of other initiatives that directly seek to ease the burdens on students. If any generation deserved to have their call for change heard, it is this generation. No wonder almost 600,000 students signed the petition. I add my congratulations to the petitioners on achieving this debate, and I thank the House authorities for allowing it to proceed. I look forward to working with the sector, the students and all stakeholders in the coming months, to address some of the cries for change. I very much see this debate as the first step in that process.
Michelle Donelan
We are considering the remaining recommendations made by the independent panel chaired by Philip Augar, including on fees, funding and student finance, and we plan to set out our full conclusion on that shortly. I urge colleagues not to refer constantly to media speculation, because we have not yet made an announcement, but it will be coming shortly.
Following on from that, as part of our consideration of the recommendations made by Augar, I and my ministerial colleagues are still in the process of building a post-18 education system that massively improves the value and quality of learning and equips learners with the skills they need to get those high-wage, high-skills job opportunities. The way we drive up quality in our higher education system is not by diverting money from universities to high earners, but by investing in a system that focuses on high-value skills. That is the way to promote genuine social mobility. We have already delivered on several of the recommendations made by Augar in our first response to that, including investment in the further education estate, increasing funding to 16 to 19-year-olds, a commitment to introduce a lifelong earning entitlement and the Prime Minister’s lifetime skills guarantee.
Matt Western
This is not a difficult question, but I want to pick up on the point made by the hon. Member for Glasgow North West (Carol Monaghan). When the response to the Augar review is made—I think it is now two years, or two and a half years; I have lost track—will the Minister commit today to making that in the Chamber to us and not through the media?
Michelle Donelan
I look forward to when we announce our response to Augar shortly, and I am confident that there will be several opportunities for hon. Members to question either me or the Secretary of State for Education in the Chamber. I will pledge to ensure that that happens.
Moving on to the next element of the petition, I am very pleased to see the issue of student representation raised here today and I agree with the hon. Member for Slough (Mr Dhesi) on just how important that and listening to students really is. I know that Members present here today are no doubt excellent campaigners. I am sure we would all agree that no one holds us and higher education providers to account on these issues better than students. The view that has driven our work —from the National Union of Students, the Office for Students, Universities UK and the Office of the Independent Adjudicator for Higher Education—is to ensure that students know their rights with regard to higher education and can feel confident in exercising them.
For those less familiar with this, I recommend the excellent work done by the Office for Students’ student panel, which I have met several times since I have been in post. I am meeting it again next week. Over the past two years, the panel has made some really important points, pushing me and other Ministers, and it has certainly been a positive influence in the Office for Students. I am passionate about giving students more of a voice and more direct influence over student life than ever before, so seeing the panel directly inform the policies and decision making of the Office for Students is really inspiring. I know that the panel has played a fundamental role in informing the early development of the Office for Students’ next strategy—on which it will be shortly consulting—in shaping its statement of expectation on harassment and sexual misconduct, and in informing how student hardship funds can best be utilised.
I remind hon. Members that there is a process in place for students who feel that they have not had the expected quality or quantity of lessons, and they can complain to their university. If they are still not satisfied, they can go to the Office of the Independent Adjudicator, which is helping students to reclaim thousands of pounds where the quality of learning has fallen below standards. In fact, the OIA has already made recommendations for financial compensation totalling £450,000—again, showing just how important it is that the student voice is not only heard, but listened to and acted on. I encourage any student with a particular issue or concern to speak up and engage with the process.
The petition also raises the important issue of accommodation costs for students, which was raised by hon. Members. Again, it is an important factor in our mission to achieve genuine social mobility in the wake of covid. Higher education providers and private accommodation providers are of course autonomous and responsible for setting their rent agreements, but that should not stop the Government being there to advocate for and, where necessary, directly support students, which is why I ensured that providers were able to use the additional £85 million of student hardship funding to support students who were struggling with accommodation costs last year. I have also worked hard to ensure that providers’ rental policies have students’ best interests at heart, and that providers are listening to those interests that are being advocated strongly. If students have concerns about any issues relating to university-provided accommodation, they can of course complain to their university and then go to the Office of the Independent Adjudicator.
Matt Western
On accommodation costs, the Minister will be aware that there are many campuses across the country where there is no accommodation owned by the university itself—it is all in private hands. Will she provide the data that show the rate of increase in cost and how that has tracked over the past five years, relative to inflation? My understanding is that it is exceeding inflation.
Tom Hunt
I thank the Minister for her very detailed response to the debate, and I also thank the shadow Minister, the spokesperson for the Scottish National party and the other Back Benchers present. I feel confident that this issue has been debated thoroughly and that many different views have been shared. Clearly, this is a huge issue, and we await the Government’s response to the matter.
It seems to me that a key point here is that there are different views about the £9,250 level and whether it is too high or about right. The reality is that for many people who go to university, it is still a good investment, because students come out of university with a qualification that enables them to earn a good salary and have a very fulfilling career. Sadly, for some that is not case. Some people who go to university might have been pressured into it. I do not underestimate how transformative university can be in a positive way, but it is not for everyone. For many people, going to university might not have been the right decision.
Matt Western
The hon. Gentleman talks about an investment as a personal investment, which is the crux of the issue. It is not just the cost to the individual, because there is a cost to us as taxpayers. Should it be a socialised cost, which is a cost to all of society as an investment in our future generations who might pay our pensions, look after us or teach our children? Or should the cost be paid by the individual?
Tom Hunt
The hon. Gentleman makes an important point. In the first case, many taxpayers would want more of a view on the courses that people were studying at university. They would question some of the courses being studied and whether they offer value to the taxpayer. The system might look very different from what it does at the moment.
I agreed with a lot of what the hon. Member for Glasgow North West (Carol Monaghan) said about technical education and parity of esteem. She is absolutely right. My right hon. Friend the Member for Harlow (Robert Halfon), who chairs the Education Committee, has talked about the dinner party test. He says that people might talk about how good apprenticeships are, but when it comes to their own kids they advise them to go to university. If someone at a dinner says, “Charlie has gone to Oxford University”, and someone else says, “Bella got an apprenticeship with Jaguar Land Rover”, most of the excitement will be about Charlie, not Bella. Ultimately, we need to change that perception.
Higher education is important, but it is just part of the story and part of the debate when it comes to the future of our young people. The FE White Paper and the skills improvement boards are a real step forward. Giving local business more of a role in shaping the FE curriculum is important. It is about an ecosystem approach and linking together schools, FE colleges and universities, if there is one in the area, and local business. I see it as trying to link up young people with opportunities in the country and specifically in their area, because we do see opportunities in different sectors and young people without the skills to take advantage of those opportunities.
A lot of people still look down on technical education. They do not see it having the same inherent value as an academic pathway. It is not about saying to people from lower income backgrounds, “The academic pathway is not for you, so here is the technical route.” It is absolutely about a whole-society approach, as the hon. Member for Glasgow North West said, and taking away snobbishness about technical education. And it is not about downgrading or devaluing a university education; it is just admitting that we must have multiple pathways. That is crucial for the levelling-up agenda that the Prime Minister has made clear time and again. Thank you, Ms McVey, for chairing today’s debate; you have done so superbly.
Question put and agreed to.
Resolved,
That this House has considered e-petition 550344, relating to university tuition fees.
Higher Education (Freedom of Speech) Bill (Eleventh sitting)
Matt Western Excerpts(3 years, 2 months ago)
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Matt Western (Warwick and Leamington) (Lab)
I beg to move amendment 38, in clause 7, page 9, line 27, at end insert—
“(e) A free speech complaint is not to be referred to the OfS under the scheme if a complaint relating to the same subject-matter is being, or has been, dealt with by the Office of the Independent Adjudicator.”
The Chair
With this it will be convenient to discuss the following:
Amendment 39, in clause 7, page 9, line 37, at end insert—
“(1A) In reaching a decision under subsection (1)(a), the OfS must consider the other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equalities Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”
This amendment would require the OfS to consider other legal duties incumbent on higher education providers and students’ unions when reaching a decision as to the extent to which a free speech complaint is justified.
Amendment 40, in clause 7, page 9, line 42, after “may” insert—
“issue guidance, give a warning or”.
This amendment would allow the OfS to issue guidance or give a warning, instead of a recommendation, to governing bodies or students’ unions against which a complaint has been upheld.
Amendment 41, in clause 7, page 10, line 2, at end insert—
“(2A) In assessing whether to issue guidance, give a warning or make a recommendation, the OfS must consider the seriousness of the free speech complaint and whether the governing body or students’ union to which the complaint relates has repeatedly breached its freedom of speech duty.”
This amendment would require the OfS to gradate the penalty it issues to a governing body or students’ union according to the seriousness of the complaint that has been upheld against it.
Amendment 42, in clause 7, page 10, line 21, at end insert—
“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”
This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.
New clause 8—Guidance on making a complaint—
“(1) Notwithstanding clause 11, this Act cannot come into force until the Secretary of State publishes guidance for students, university staff, and others setting out which complaint route each should pursue, through which regulatory bodies, and in which order, when making a complaint relating to freedom of speech.”
This new clause would ensure that those engaging with universities knew which was the appropriate route to make complaints in the first instance, and how to escalate the process should that be necessary.
Clause, as amended, stand part.
Matt Western
It is a pleasure to see you back in the Chair, Sir Christopher.
The amendments collectively address the issues of duplication and confusion we see in the complaints process and identify what we regard as an essential matter, which is the serious omission from the Bill of an appeals process. Our proposals are designed to clarify certain points.
Amendment 38 is designed principally to clarify the relationship between the Office for Students and the Office of the Independent Adjudicator, the ombudsman. In the witness sessions, I asked the chief executive of the Office for Students, Nicola Dandridge, whether she could imagine any situations in which one body or individual might go to the Office of the Independent Adjudicator and another to the Office for Students, and how that might be reconciled. She replied:
“That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 111, Q237.]
That is one of those answers that we sometimes get, where there are a couple of double negatives and we are left wondering how nuanced a particular point is. In an online comment, Jim Dickinson of Wonkhe said that is not good enough and that we cannot informally discuss how to arrange the relationship when in the Bill itself there is no provision to lay out the framework. That is the root of the problem: the lack of clarity between both bodies is a serious structural issue in the Bill, which therefore needs structural modification.
We have the prospect of what I understand in legal terms is referred to as res judicata issues, which is the possibility of a case having already been decided if the same aspects apply. In its own impact assessment, the Department for Education said that in its cost-benefit analysis, one of the costs of the implementation of the complaints scheme was the cost to students of not knowing which route to go. During a meeting I had a while back with the University Alliance, it stressed that there was serious confusion between the responsibilities of the OIA and the OfS. The Universities UK advisory board has also said that the Bill could duplicate the existing complaints system of the OIA.
The OIA itself says:
“We remain concerned that having two complaints schemes for student complaints, with overlapping but not identical remits, is very likely to cause confusion and put additional pressure on students having to choose where to take their complaint about freedom of speech issues.”
It added:
“We are concerned that creating a second complaint route with overlapping, but not identical remits, will be confusing for students and add complexity for higher education providers as well as students’ unions and other student representative bodies advising students.”
We have the situation where it is possible for an incident to result in some individuals complaining to the OfS, others complaining to the OIA about the same incident and both receiving a different remedy, depending on the context of the complaint. In the case of David Palmer, a Catholic chaplain at the University of Nottingham, the student could go to the OIA, and David Palmer could go to the scheme. It was the same issue: two bodies, two remedies. That leads to an administrative nightmare.
Amendment 39 would require institutions to balance out other legal duties in the assessment of free speech complaints. Danny Stone of the Antisemitism Policy Trust told us:
“The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university. In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 129, Q283.]
Even the former Education Secretary, the right hon. Member for South Staffordshire (Gavin Williamson), said:
“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.]
I accept that those duties already exist, but why not make it clear in the Bill that they interact with freedom of speech issues?
The Minister for Universities (Michelle Donelan)
I can answer that question quite swiftly. We cannot get into the business of listing every single law in every Bill. The Bill, as the hon. Gentleman will recognise, does not supersede, contradict or replace existing law in relation to the Prevent duty—which is not a law, actually—or the Equality Act 2010. It is quite simple: we cannot get into the practice of having legislation where we list every other law on the face of each Bill.
Matt Western
I think it is important that there are references to other legislation in the Bill. Such elements are critical to the foundation of a freedom of speech Bill.
Amendment 40 would allow the scheme to result in a warning rather than a recommendation or a fine. This is about recognising that in most, if not all, cases, there is a fine line. It would allow universities to make judgment calls that were wrong and give them room to change their mind, rather than leap towards fines. We heard, for example, from Bryn Harris, who commented on how to balance
“the potential conflict that we were talking about, between the Equality Act”—
harassment provisions “and this Bill”, which would have to
“have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]
Hand in hand with the guidance—not mandatory—is warnings, or gentle persuasion. The vice president of the National Union of Students, Hillary Gyebi-Ababio, said that it is
“really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128, Q281.]
That, of course, will have a disproportionate impact on smaller institutions, as we have heard. We have repeatedly made the point about the smaller institutions, typically higher education bodies, but also further education colleges, that were not consulted at all in the drawing up of the legislation.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is a shame that the evidence from the Association of Colleges came late. I want to draw Members’ attention to it. I said previously that the provision would apply to 170 FE colleages, and in its evidence the AOC gives the number as 169. It states that if the Government are able to exempt junior common rooms from the legislation, they should be able to exempt FE colleges, as there is no evidence of issues relating to freedom of speech in any FE college. As my hon. Friend the Member for Brighton, Kemptown has already mentioned, FE colleges are additionally regulated by Ofsted.
Matt Western
It is indeed surprising and disappointing, if not a failure of the process, that the further education colleges were not consulted. That point has been made clear and loud by the Association of Colleges, which feels alienated from this process, yet it will bear the same burdens as higher education institutions.
Turning to amendment 42, it is vital to include an appeals process. Appealing an administrative or judicial decision is the hallmark of any liberal democracy. The existing process overseen by the Office of the Independent Adjudicator does have an appeals process, but revealingly the Bill promises none. My hon. Friend the Member for Kingston upon Hull West and Hessle put that point to the only lawyer that we heard from in oral evidence, Smita Jamdar of Shakespeare Martineau. My hon. Friend asked her whether she was
“supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK”,
to whch Ms Jamdar replied:
“Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]
Both the OIA and Universities UK highlighted the fact that in the Bill the Government are proposing a director of freedom of speech who is judge and jury in decisions on universities, and there is no right to appeal. Professor Paul Layzell from Universities UK picked up that point when he said, in what I think was a masterly understatement:
“I think we would have a concern.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126, Q276.]
The OIA has an appeals process. Why does the OfS not have one or one that will be included in the Bill? Universities UK says there would be
“no right to appeal an OfS decision.”
It says that if there were a decision that a university student union felt was genuinely unfair, it would be forced to implement it, irrespective of whether it felt there was a right of reply. UUK underscored the fact that existing routes, such as the OIA, have an appeals mechanism. UUK feels that this is absolutely appropriate, and such a mechanism must be brought into the OfS scheme as well.
New clause 8, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, has become significantly more relevant since we tabled it. The Minister has consistently referred to guidance in her replies to more or less all of our amendments. Now, she has the chance to let us see that guidance before the Bill is put in the statute book. We urge that that guidance be made available, before Report and certainly before the Bill passes into law.
We are not the only ones who want to see that in legislation. I recall Professor Stock’s comment:
“The Bill is quite vague, so it is going to need a lot of guidance, concrete examples and accompanying notes.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 6, Q3.]
In his testimony, Dr Ahmed said:
“With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 18, Q31.]
If the relationship between the duties in this Bill and the Equality Act 2010 are to be decided in guidance, as Dr Ahmed suggests, surely we have to see the guidance before the Bill is enacted. The force of the Equality Act 2010 could be undermined through the backdoor, with no parliamentary scrutiny. As Smita Jamdar said:
“I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 58, Q113.]
As I have said repeatedly, we need to see guidance on this before Report or, at the very latest, before the Bill receives Royal Assent. All these amendments tighten up the legislation, reduce or delete duplication and confusion, and underline the importance of an appeals process for all bodies, so that they can challenge any ruling from the OfS director of free speech.
Emma Hardy
It is a pleasure to serve under your chairship, Sir Christopher. I have to correct the record on the number of FE colleges affected. I originally said 170, then I said 167, but for the record this relates to 165 FE colleges.
My hon. Friend talked about amendment 39 and the reason we want to set out in the Bill the different pieces of legislation that could have an impact on free speech. The oral evidence we heard shows that there is confusion about how the Bill will interact with existing legislation.
UUK asks that the Government
“clearly outline how this Bill will interact with existing legislation and other duties which relate to free speech and academic freedom”.
Sheffield Hallam submits that:
“the Bill would set a higher standard for freedom of speech expectations, with consequent potential difficulties in relation to the 1986 Education Act, the 1998 Human Rights Act and the 2010 Equality Act.”
Michelle Donelan
To respond directly to the hon. Lady’s point, we think it is right that FE colleges are in scope within the Bill. They are already regulated by the OfS when they put on courses of higher education, so this is not a change for them. They are already subject to working with that regulator, as well as Ofsted and so on. It is right that we ensure that this provision is comprehensive and that we protect freedom of speech for students who are studying higher education in further education settings as well as those studying in higher education settings.
Students will continue to be able to raise complaints with the OIA, but will also benefit from the new complaints scheme in the OfS. Students will have the option to raise freedom of speech and academic freedom-related complaints via the OfS scheme, or to raise their complaint with the OIA, as they can now. Where a complaint has been found to be wholly or partially justified, the OfS will be able to make a recommendation to the higher education provider or student union, which could include a recommendation to pay a specified sum in compensation or, for example, a recommendation to reinstate a complainant’s job or place on a course.
Without this new complaints scheme, staff in the higher education sector and visiting speakers would have no access to a cost-free route to seek redress against a provider, and there would be no way to complain about the student union. This clause provides a free complaints route to individuals, whether higher education staff, students, academics or visiting speakers, to seek redress for an improper restriction of their lawful free speech. The scheme will ensure an accessible route to individual redress that is backed up by new, strengthened duties provided in this Bill.
Matt Western
So much of what is being promised will be guidance or provided in due course by the OfS, but it is far from concrete in the way the witnesses asked for. I am surprised and disappointed that the Minister has still not made one reference in the entire time this Committee has been sitting to the Charity Commission and the role it will have in this system. It is far from clear how the OIA and the OfS will work. I appreciate that it has been said there will be some guidance on that, but as we have said throughout, there is a duplication here that will be extremely hard for people to navigate way through.
John McDonnell
I think it is fairly easy. A person can pursue an HEP against the NUS via the OIA or the OfS, or an ET, overseen by the DFSAF, and of course the DFE. What is the problem?
Matt Western
My right hon. Friend expresses the nature of the problem: it is as clear as mud. It will be impossible for most students to navigate their way through this, and that may be a major part of the problem.
I have taken on board some of the Minister’s comments on our amendments. However, I really think the appeals process should be written into the legislation at this stage, and therefore we wish to press amendment 42 and new clause 8 to a vote. This part of the Bill is clearly important, but there is so little clarity about how it will work in practice. It must therefore be a real concern to all of us. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 15, in clause 7, page 10, line 29, after “provider” insert
“, a constituent institution of such a provider”.
See explanatory statement to Amendment 8.
Amendment 16, in clause 7, page 10, line 32, after “provider” insert
“, a constituent institution”.—(Michelle Donelan.)
See explanatory statement to Amendment 8.
Amendment proposed: 42, in clause 7, page 10, line 21, at end insert—
“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”—(Matt Western.)
This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 78, in clause 8, page 11, line 22, after “OfS” insert
“and an advisory board consisting of sector bodies”.
This amendment would ensure that there is the involvement of relevant sector bodies in the sector.
The Chair
With this it will be convenient to discuss new clause 7—Independent Advisory Body to advise the Director and OfS on the operation of the scheme—
“(1) Following the passing of this Act, the Secretary of State shall establish an independent advisory body (IAB) to give independent advice to the Director and OfS on the operation of the Act.
(2) The independent advisory body shall comprise of representatives of Universities UK, the Universities and Colleges Union and the National Union of Students.
(3) The advice of IAB shall be public except where mutually agreed by the Director and the IAB.”
This new clause would establish an advisory body of representative bodies within the sector to advise the Director and the OfS.
Matt Western
We come to the responsibilities of the director for freedom of speech. Amendment 78 simply seeks to ensure that one of the director’s roles is to report on the OfS’s free speech functions to a representative sample of sector bodies—something that we believe is vital. We heard from the witnesses in the evidence sessions about the potential power that the director could have. English PEN raised concerns about whether the director will be an adjudicator, a regulator or an advocate—it is not clear. Given that they will have such wide-ranging powers, it is surely only right that their reports are shared as widely and with as many stakeholders as possible.
This amendment is about collaboration—not a top-down approach, but a sector-wide, collaborative approach. Although I do not believe the post is needed, Trevor Phillips said in his evidence:
“The important point about this post is that he or she should be a protector of the freedom of expression of students and academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 21, Q39.]
How can one be a protector of the freedom of expression of students and academics without involving sector-wide bodies that represent those concerned?
Michelle Donelan
The hon. Member has made that point before. The chair of the OfS was appointed accordingly, and the director for freedom of speech and academic freedom will be as well. I hope that Members are reassured that the Bill already ensures the accountability of the director for freedom of speech and academic freedom, and the OfS itself.
Matt Western
This is a common-sense suggestion about engaging and involving the various sector bodies to assist the director. The director’s role will be a fairly lonely one, sat in a swanky office somewhere, and the amendment represents a constructive suggestion. As we have said from the start of proceedings on the Bill, we are trying to put forward ideas to mitigate some of the damage that the legislation may cause. Engaging those at the coalface, as my hon. Friend the Member for Kingston upon Hull West and Hessle put it, who see how the measures play out in practice, will be really important.
I do not accept the Minister’s suggestion that the director for freedom of speech is going to be an independent person, or that the chair of the Office for Students is independent. People can make all sorts of suggestions about the process that was followed, but the Opposition has profound concerns, as most people do, about how that was pursued. We also have concerns about what will happen to the director for fair access and participation when that position is filled in a matter of weeks. It seems as though there is a siege mentality at the OfS, and a very determined attempt to centralise powers. I wish to press the amendment to a vote.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 79, in clause 8, page 11, line 23, at end insert—
“(d) providing an annual update made available to students’ unions and higher education institutions on—
(i) the number and nature of complaints made to OfS regarding freedom of speech; and
(ii) examples of what OfS believes to constitute unacceptable infringements of freedom of speech as set out in this Act.”
This amendment would help monitor this impact of the legislation and assist student unions and higher education institutions to stay within the law as set out in the Act by providing examples of bad practice.
The amendment stands in my name and that of my right hon. Friend the Member for Hayes and Harlington. It simply seeks an annual update that would be made available to student unions and higher education providers to enable them to understand the nature and scale of the complaints being made to the OfS about freedom of speech, along with examples that the OfS believes to be infringements of freedom of speech as set out in the Act. The amendment seeks to address the undefinable nature of the so-called chilling effect and help institutions and others to navigate this tricky territory. As Dr Bryn Harris noted,
“one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q169.]
Although the amendment does not relate to the guidance to be published by the OfS, it would inevitably form part of a wider subset of guidance that universities and student unions could look to to help them craft their codes of practice to try to make this work in reality—day to day, and week to week—on campus. That would, in turn, help student unions to reduce their budgets and the cost to their members, and it would help to reduce the costs for higher education providers as well, because they would be able to rely on what we imagine will be an expanding set of guidance examples. That is important because, as the Government’s own impact assessment states,
“SUs are the main affected groups that we expect to incur costs including: familiarisation costs; compliance costs: the direct costs of complying with the regulation and enforcement”.
My real concern is what the intended or unintended consequences of the legislation will be for the viability of our student unions. Irrespective of our political positions, we know that their vitality and viability is important to life on our university and further education campuses.
The amendment would also provide evidence of whether the Act was working. Thomas Simpson said in evidence:
“The test for success is in 10 years’ time, when it is more embedded.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 63, Q125.]
I am not sure we can wait that long. If it is to work—I do not believe it will—it needs to be effective immediately. We need to see some significant changes in the months of the first year. If the test for success means waiting 10 years, how can the Government claim to be meeting the test if there is insufficient data to back up the claim? That is why reporting is so important. As I have said before, the OfS already collates data on the number of events that are cancelled as a result of the Prevent duty. The amendment is simply an expansion of that duty.
Fiona Bruce (Congleton) (Con)
I want to speak to the amendment because it is important that there is public understanding of what the amendment calls the “nature of complaints made”. I am not sure whether the amendment would add anything to the regular reviews and reports in the amendment proposed by my right hon. Friend the Member for South Holland and The Deepings, which the very thoughtful Minister—she has promised to do a lot of thinking following comments made during this Committee—is going to consider.
It is essential that there is a good, clear understanding of the deliberations of the director. I very much support clause 8 and having the office of an individual who is responsible for looking at this kind of issue. It is really important that there is clarity on the deliberations and decisions of the director about the concerns referred to him.
I want to highlight an example of the nature of complaint that we are talking about. Yesterday, after the Committee last sat, an article entitled “Oxford college run by former equalities head apologises for hosting Christian conference” appeared in The Daily Telegraph. It said:
“New case of 'cancel culture' as Worcester College acknowledges 'distress' caused to students.
An Oxford college run by the former head of the equalities watchdog has apologised to students for hosting a Christian conference…In what has been described as the latest incident of ‘cancel culture’ at British Universities, Worcester College acknowledged the ‘distress’ that it had caused students by hosting a Christian Concern training camp… Christian Concern held its annual week-long Wilberforce Academy at the beginning of September, whilst Worcester College was closed for the summer break. The evangelical… group says that more than 100 young people were ‘very warmly welcomed, including by the Provost, received many compliments from the staff, and were not aware of any complaints or concerns’.”
However, students, presumably from Worcester College, are
“understood to have complained that the curriculum for the residential camp was Islamophobic as it included a discussion on the ‘nature of Islam’”.
Michelle Donelan
I do not want to get into the individual example, because I am not fully familiar with the details. My hon. Friend the hon. Member for Congleton said that she was concerned that that event would not happen in future because of that apology. I will look into the details.
Clause 4 also provides that the OfS may identify good practice relating to the promotion of freedom of speech and academic freedom and give advice about that to providers. The Government expect the OfS to work with the sector and a range of relevant stakeholders to ensure that there is clear and relevant advice to help higher education providers and student unions feel confident in fulfilling their duties. I therefore hope that Members will be reassured that the Bill ensures transparency in relation to freedom of speech functions at the OfS, and that guidance will be given to the sector to help it to understand how it comply with its duties. However, as I have previously committed, I will take away the issue of reporting and consider what more we can do on it.
Matt Western
I thank the Minister for her remarks, which I accept at face value. I look forward to seeing what form the reporting will take. We would be very open to having some input on how best we can make that work. We do not want to be burdensome in terms of placing bureaucracy on anyone, but I think both sides of the House agree how useful reports can be to help people understand how this legislation might work in practice, by providing not just data but examples. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Western
I beg to move amendment 85, in clause 8, page 11, line 23, at end insert—
“(1A) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(1B) The person appointed as the Director for Freedom of Speech and Academic Freedom may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.”
This amendment would ensure that the Director of Freedom of Speech and Academic Freedom had not donated to any political party in the last three years and that they may not make any further donations to political parties for the duration of his tenure.
The Chair
With this it will be convenient to discuss 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
It is pretty obvious what little faith we have in the potential appointment of a director of free speech. Often in life, it is not a case of what is said but who says it. We can look at this legislation and then try to interpret what is behind it. It seems obvious that this is a clear next stage in the Government’s power grab over the supposedly independent Office for Students. Until recently, the OfS was genuinely independent, but that power grab is laid bare for all to see in the Bill.
To put that in a wider context, it is fair to say that the Government have widely abused the public appointments process. It is not clear whether the director of free speech will be recruited through open competition or essentially appointed by the Prime Minister. On numerous occasions, I have raised the appointment of Lord Wharton as chair of the Office for Students. He is a Conservative party donor and takes the Conservative party Whip. He is a political appointee, so it is not a good record. To clarify, people can of course be donors. But in this case a person is appointed to the independent Office for Students one month, and the next month, having taken a pay cheque from the Government, he pays £8,000 to the Conservative party.
I would like to see the director of free speech appointed through the Committee on Standards in Public Life. On the wider problem of political appointees, I read just a few weeks ago that another of the Prime Minister’s mates, Ewen Fergusson, who happens to be another Bullingdon lad, was appointed to the Committee on Standards in Public Life. The pattern that is emerging is not good for anyone across the political spectrum. It is vital that trust in all these systems is maintained, irrespective of who happens to be in power. That trust can be eroded quickly and we have to ensure that all of us do our best to uphold it.
Many academics view what is happening as a creeping appointment of Government Members, not just to these sorts of bodies but to museums as well. I mentioned earlier the resignation of Sir Charles Dunstone as chair of the Royal Museums Greenwich, which was prompted by the Government’s refusal to reappoint an allegedly decolonising trustee, Aminul Hoque.
Our cluster of amendments seek to limit the interventionist role of Government in supposedly independent positions in public bodies. The concern about that role was highlighted by Professor Biggar in oral evidence, when he said:
“someone like me, who thinks there is a problem—and I guess the Government do, 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.]
That is clear then, isn’t? We want a partial person to be going into the independent Office for Students to preside over this important role of the director of free speech.
Dr Ahmed said:
“There are always concerns with the regulator—that it has to be impartial—and there are also concerns in this particular case.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]
Dr Ahmed was a Government witness, and I think he was referring to the case of Lord Wharton. Another witness, Smita Jamdar, a lawyer from Shakespeare Martineau, said:
“you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Does the hon. Member agree that it is important that, although these individuals are independent, they are also accountable? Does he recognise, as I do, having been part of a number of confirmation hearings for individuals appointed by the Government to significant roles in which they are expected to exercise independence, that that public, cross-party scrutiny—in this case, through the Education Committee—ensures that individuals can be questioned, and that the concerns that have been highlighted can be addressed, before the person assumes office, and that that happens in public and in a transparent manner?
Matt Western
Of course, we all want to believe in those processes, but when the processes end up consistently with mates of the Prime Minister being appointed, it is pretty disturbing.
Mr Kevan Jones (North Durham) (Lab)
What the hon. Member for Ruislip, Northwood and Pinner said about transparency is correct. There might be a Select Committee looking at the individuals, but unlike the US system, there is no power of veto to stop those individuals being appointed. If a party has a majority, it will have its person, whether other people like it or not.
Matt Western
My right hon. Friend makes a very important point. That is one of the failings of our process in this country. I came across that when looking at international trade and the trade deals that might be struck by the US representative body. In the US, a trade deal would go before another Committee, which would have a veto on the criteria of the deal and whether it should be approved. The same thing should apply to this as well.
Emma Hardy
My hon. Friend might recall that the Education Committee did not approve the appointment of Amanda Spielman as chair of Ofsted, but that was ignored by the Government and she was appointed. It does not even say in the Bill that there would be scrutiny through the Education Committee, which is something the Minister could at least clarify.
Matt Western
I was not aware of the case of Amanda Spielman, but we are increasingly seeing this sort of interference across the board. I have mentioned the case of the museum, and there is also the case that my hon. Friend has cited. What we want to do is put checks and balances in the system. If we were in government, we would expect the Conservative party to be saying the same of us. An honest and appropriate approach is needed. My right hon. Friend the Member for North Durham mentioned the US system, which is far tighter than so much that we have in this country. I just do not understand how the US can be doing it so well, yet we are not.
Mr Richard Holden (North West Durham) (Con)
We have ended up in a discussion about the US system versus our system, but the US system also has substantial flaws. One thing on which we probably agree on both sides of the House is that we want to see a minimum rate of corporation tax across the globe, which looks like it will probably be held up by Committees in the United States. There is give and take in both the systems that we are looking at. The hon. Gentleman suggests that the US’s system is perfect or is something that we should be moving towards, but it actually allows vested interests to block really sensible proposals that are liked by many other countries around the world. I would like him to reflect on that in his comments.
Matt Western
I am not saying that the US has a perfect system; far from it. I am saying that the parliamentary process, or the process that involves bodies from within the democratic systems of this place, generally pales in comparison to the way the US does this.
Mr Jones
I agree that the US system is not perfect, but would my hon. Friend support something like the NHS appointments commission, which the Labour Government introduced? It took Ministers and politicians out of the process of appointing people to health boards, and took as its bedrock the principles on standards in public life, which were the main criteria in taking decisions. Would that not be a better system, rather than allowing the Government of the day to appoint who they want?
Matt Western
I was not aware of that, so there is a gap in my knowledge, but I think that is exactly the right sort of approach. We need this appointment to have credibility.
Sir John Hayes
I am not going to continue the debate about the United States, although there are some virtues in its system—appointments to the Supreme Court spring to mind. To bring matters back to hand, Dr Ahmed, whom the hon. Gentleman has quoted, was very clear. He said:
“There is no evidence that I am aware of that there would be any problems with the appointments process.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q37.]
When it comes to credibility, he said that what matters is having someone who has “guts and principles.” That is what we need in this role—someone who can grasp the nettle. The prickly nettle is the absence of free speech, which is becoming increasingly common in our higher education system.
Matt Western
It sounds as though we may be being slightly selective in our quotes from Dr Ahmed, because I take something slightly different from what he said. I take on board the point that the right hon. Gentleman has made, but I reiterate that, as Dr Ahmed has said:
“There are always concerns with the regulator—that it has to be impartial”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]
That is where we have real concerns about the direction of travel with the OfS.
Emma Hardy
To clarify, and to put this as succinctly as possible, we are asking for the person to be appointed on the basis of what they know, not who they know. That is pretty much what all these amendments amount to. I draw the Committee’s attention to the appointment process for the OIA chair, because it looks much fairer. It focuses on the need for relevant skills and expertise, and the chair is
“appointed through fair and open competition in line with the Nolan Principles because of the value and relevance of their skills and experience.”
The OIA is not Government-owned or funded, and the chair is appointed as an independent trustee. That is the kind of thing that we are looking at here. If we refer back to the evidence given by UUK and many others, including the lawyer, we can see that they were looking for someone with some kind of legal experience and knowledge of the sector, who was appointed independently. Everybody from those evidence sessions would say the same thing if they were sitting here: “Let’s have some independence in this process.”
Matt Western
I thank my hon. Friend, who has mentioned points that I was just about to come to.
Matt Western
It is absolutely fine, and I appreciate it. The Universities UK advisory board said quite explicitly that openness and transparency are needed in this appointment.
I wanted to come on to the models that we could be using to improve the appointment of the director for freedom of speech; we recognise that the Government are determined to have such a position. In the Office of the Independent Adjudicator, nine of the board of trustees, including the chair, are independent director-trustees. They are appointed through a fair and open competition in line with the Nolan principles, as my right hon. Friend the Member for North Durham has just mentioned, based on the value and relevance of their skills and experience. From what we heard in the evidence sessions, it was not absolutely clear what skills and experience the director for freedom of speech might need, but we certainly had some insight into the values that they might have.
In December 2016, the Cabinet Office published its governance code for public appointments, in which it was made clear that all public appointments should be governed by the principle of appointment on merit. I accept that there were conflicting views in the evidence sessions on whether the director should have legal experience—personally, I believe that that is necessary—but surely we can all agree that the position should be awarded on the basis of merit, as defined by the Government’s own governance code.
Matt Western
On the appointment and the process, the Minister was in place as the Minister of State for Higher Education for the appointment of Lord Wharton. What were the skills and expertise that got him the job?
Michelle Donelan
We are going very off topic. We have a lot of clauses to get through, so I will continue.
There will also be important oversight built into the system when the director has been appointed. The director will be responsible for reporting to other members of the OfS on the performance of the OfS’s free speech functions. That reflects a similar provision in paragraph 3(1)(c) of schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for
“reporting to the other members of the OfS on the performance of the OfS’s access and participation functions.”
That will not only ensure oversight of the role of the director for freedom of speech and academic freedom, but the rest of the OfS board will also allow the OfS to better co-ordinate and monitor its free speech functions.
I therefore hope that Members will be reassured that the appointment of the director will be in line with the usual public appointments process and that the role of the director is ultimately overseen by the rest of the OfS board.
Matt Western
This has been an important debate. As we have said, this will be way too much power invested in one individual. That will then lead to that individual’s interpretations of situations against their personal set of values and principles.
Emma Hardy
Hopefully, the next time the Minister stands up she might be able to clarify whether the appointment of the director for freedom of speech and academic freedom will be subjected to a pre-appointment process with the Education Committee, in the way that Amanda Spielman was when she was appointed to Ofsted, for example, and in the way that the Committee deals with other educational appointments? Will we have that pre-appointment hearing?
Matt Western
Indeed. The purpose behind new clause 9 is to have a process whereby the appointment goes through the appropriate body in the House of Commons, which we suggest is the Education Committee.
The bottom line is that we do not see any safeguards in the process. We do not see any checks or balances to ensure that this individual does not abuse the power and influence that they may weald. It is important to have some trust in the appointment process, which is why new clause 9 says the appointment should go through the Education Committee, ideally with some pre-appointment consideration. There are many advantages to that, not just in terms of the power to veto.
The Education Committee should have more say anyway. It is important to empower these bodies, as my right hon. Friend the Member for North Durham described when he talked about the veto processes that exist in the US system but that we seem to ignore completely. Those are the sorts of checks and balances that we want to see introduced.
Emma Hardy
The reason for talking about the Education Committee is that people said in some of the evidence that they wanted democratic oversight. We are fully aware that the Education Committee is balanced by who has the majority in Government, so there would currently be a Conversative majority, but it is still an important democratic safeguard to have a separate body to scrutinise the appointment and have a veto. I hope that is something the Minister will take away and seriously consider.
Matt Western
I am sure that the Minister is listening to these points. I think the Education Committee should have certain powers and status, and its involvement in these processes would be useful. I would even widen this to a broader panel if possible, with sector involvement as well, because experience, expertise and understanding of the reality on the ground is important. Having someone parachuted in because their political persuasion suits the Prime Minister is not a good way to govern such an important part of our democratic landscape.
The concern is that there will be a clear differentiation between—
Higher Education (Freedom of Speech) Bill (Twelfth sitting)
Matt Western Excerpts(3 years, 2 months ago)
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Higher Education (Freedom of Speech) Bill (Ninth sitting)
Matt Western Excerpts(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 hansardnotes@parliament.uk. 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.
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?
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.
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.
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.
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.
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.
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.
Higher Education (Freedom of Speech) Bill (Tenth sitting)
Matt Western Excerpts(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Universities (Michelle Donelan)
The Office for Students, as the regulator of the higher education sector in England, provides a valuable independent service that helps to ensure that our universities are institutions to be proud of. Universities have historically been centres of inquiry and intellectual debate and bastions of free thought from which new idea can emerge to challenge the current consensus. The OfS is therefore ideally positioned to positively impact on our universities. Our aim is to strengthen freedom of speech and academic freedom in higher education.
The clause strengthens and extends the current legislative framework on the duty of the OfS, enabling it to fulfil that role. The clause amends the general duties of the OfS in the Higher Education and Research Act 2017 to include that, when performing its functions, it must have regard to
“the need to promote the importance of freedom of speech within the law”
and
“to protect the academic freedom of academic staff at English higher education providers”.
The clause also inserts section 69A into the 2017 Act, with the provision that the OfS “must promote the importance” of freedom of speech and academic freedom in higher education. That is central to the Bill’s aim of changing the culture on campus so that freedom of speech can thrive. Section 69A sets outs provisions about OfS advice on good practice in relation to the promotion of freedom of speech and academic freedom, and gives the Secretary of State the power to require the OfS to report on freedom of speech and academic freedom matters.
I believe that the clause is essential to extending the general duties of the OfS to ensure the promotion and protection of freedom of speech and academic freedom within higher education. It is therefore a necessary and important part of the Bill.
Matt Western (Warwick and Leamington) (Lab)
My only comment, which has been made throughout the debate, is about how much responsibility goes to the OfS and how much should remain with the Office of the Independent Adjudicator for Higher Education. We still have profound concerns about how the measures will work between the various bodies, but we will not divide the Committee.
Question put and agreed to.
Clause 4, as amended, accordingly ordered to stand part of the Bill.
Clause 5
Regulation of duties of registered higher education providers
Matt Western
I beg to move amendment 54, in clause 5, page 6, line 39, at end insert—
“(4) The OfS must ensure that the ongoing registration conditions of each registered higher education provider that is eligible for financial support include a condition requiring the governing body of the provider to report to the OfS each year on the number of events that have been cancelled following a complaint about the opinions held by a person due to speak at the event.”
This amendment would require higher education providers to report to the OfS each year the number of events that have been cancelled following a complaint about the opinions of the speaker, as part of OfS registration conditions.
It is a pleasure to see you back in the Chair, Sir Christopher. The amendment is straightforward. It is a shame that the right hon. Member for South Holland and The Deepings is not present, because I know that such amendments are quite close to his heart.
In the debate on amendment 73, we expressed concern about the burden and responsibility being placed on the sector, which we felt was inappropriate because that measure could not be applied. [Interruption.] I welcome the right hon. Gentleman back to his place. We believe there should be some means of quantifying data, which is important to understanding the scale of the issue. One of the problems has been in trying to recognise the nature and extent of the claimed problem. Our amendment seeks simply to ensure an annual registration or report detailing the number of cancelled events following a complaint.
As I mentioned in debate on amendments 72 and 73, we have to be careful about the burden of bureaucracy being placed on the sector, and appreciate that institutions already have a similar duty—the Prevent duty—as part of what is termed the “accountability and data return”. On that, I point out that the last results of that input showed that 99.8% of external speaker events went ahead, which suggests that the system is working largely as planned.
It reminds me of that great commercial many years ago from one of the beer companies. An individual passing through the offices hears the phone ringing and thinks, “That’s strange. It sounds like one of those old Bakelite phones. I’d better look in the office to see what’s going on.” He walks in and sees dust-covered furniture there. He finds the phone, dusts it off and answers, saying, “You’ve got the wrong number.” As he leaves the office, the sign reads “Carlsberg Customer Complaints Dept.” There is a little bit of that with this. How many will we actually see go through this office?
The data has been cited so often in our debate, but we have to ask how much of a problem this is in terms of events. There are increasing claims of self-censorship from witnesses and Government Members, but the data shows that 99.8% of external speaker events go ahead and suggests that the system is working. That leads directly to the quantifiable evidence of no-platforming issues. Professor Grant, whom we heard from in evidence, made it clear that
“It is not about the process of inviting people on to campus and worrying about no-platforming and cancel culture. The data there says that it is a non-issue.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 120, Q259.]
The events data will also help to rebut claims made by the likes of Professor Kaufmann, who, oddly, claimed:
“The no-platforming incidence is really the crux of the issue, which the Bill will address.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 90, Q184.]
It is hard to address something that, clearly, hardly exists. The Government’s own data from the Office for Students shows only a tiny percentage of cancellations. That is the only report that was available. In 2017-18, it showed that of 62,000 events, just 53 were rejected, or about 0.1%. The cancellation of some of those events had nothing to do with people’s views.
Where evidence is available, there is little evidence of a big problem. According to the Russell Group, the figures were 0.09% of all events cancelled in 2017-18, 0.23% in 2018-19 and 0.21% in 2019-20. The organisation Wonkhe did its own survey of 61 student unions, which showed that just six of 10,000 events were cancelled.
The amendment would also have the benefit of addressing the concerns raised by the Department for Business, Energy and Industrial Strategy’s regulatory policy committee, which said:
“The evidence underpinning the proposed intervention and its intended effects is not strong.”
The committee supported the Department presenting
“concrete and well-founded examples of the ‘chilling effect’ and the consequences in those circumstances.”
That is what we want to see from the Government.
In the evidence sessions, a couple of witnesses talked of the effects of the Bill becoming apparent over the next 10 years. I am thinking particularly of Professor Goodwin. Well, 10 years is a long time to wait for something to appear. I do not think that any of us have the patience for that. Members will see from our amendments that we wish to review this regularly and within a period of time after the Bill becomes law to see its progress and whether it is doing any good or the burdens are causing considerable financial costs and other issues on campuses.
Of course, it takes time for Bills to embed and for change to be seen, but we do need to see some sort of evidence to support the approach. We are proposing amendment 54 for that reason. We believe that it is vital and in all our interests that there should be quality data to illustrate the nature of any issue, if there is one out there, and perhaps also its scale. As I have said, the numbers we have so far suggest that there is not. That is why we believe that it is important that amendment 54 is agreed to.
Michelle Donelan
As we have heard, the amendment seeks to ensure that registered higher education providers who are eligible for financial support are required to report to the Office for Students each year on the number of events that have been cancelled following a complaint about the opinions held by a person due to speak at an event. I agree with the hon. Member for Warwick and Leamington that we need to be careful about the bureaucratic burden that would potentially be placed on the sector. However, I have already made a commitment to this Committee to take away the point about reporting and whether we need to go further in terms of our ask on the face of the Bill. We do, however, have to ensure that we are not duplicating existing information requirements under the Higher Education and Research Act 2017. Under section 8 of that Act, the OfS must ensure that the ongoing registration conditions of each registered provider include certain conditions relating to the provision of information to the OfS. This section has been implemented by the OfS through registration condition F3, which applies to all registered providers, not just those that are eligible for financial support from the OfS, commonly called approved fee cap providers.
Matt Western
I thank the Minister for giving way; she is being very generous. Can she explain why the OfS does not appear to have been reporting regularly in the last few years?
Michelle Donelan
The hon. Gentleman makes a point about the previous activities of the OfS, whereas today we are focusing in this Bill on freedom of speech. This is a new set of requirements, with a new director, that will be coming into force, and they will be doing an annual report, as we have already discussed.
Matt Western
To come back on that point, this is a genuine and sincere question, and it would apply to anyone in the Minister’s position—I appreciate that she has been in the role for 12 or 15 months or so; I cannot remember, but it would apply to her predecessors as well. Since 2017-18, there has been a rising concern in certain circles about an issue. If it was possible to get that data in 2017-18, why has it not been asked for since? I would have thought that that was incumbent on the Department for Education, and on the Minister and her predecessors.
Michelle Donelan
The OfS did publish data around no-platforming, but as we heard from several of the witnesses who appeared before the Committee, no-platforming is just the tip of the iceberg. It is the chilling effect that we are dealing with in the Bill. To minimise that, and focus just on no-platforming, is to fail to understand the gravity of the issue that we are trying to tackle.
The governing body of the registered provider is required to provide the OfS with such information as it may specify to assist the OfS in performing its functions. The registration condition also requires providers to take such steps as the OfS may reasonably request to co-operate with any monitoring or investigation by the OfS, which may include providing explanations or making staff or documents available. In addition, following Royal Assent to the Bill, we will fully expect the OfS to consult on the detail of the new registration conditions relating to freedom of speech, in accordance with the statutory provisions on consultation in section 5 of the Higher Education and Research Act 2017.
This process will enable the OfS to best understand what is required from the providers in order to comply with the new conditions, including by way of reporting and information. Adding a further separate information requirement to the 2017 Act would cause duplication with section 8 and the existing registration conditions and could also increase bureaucracy. As I have said throughout the Committee stage, I will commit to take away the issue of reporting and seeing how we could go further.
Michelle Donelan
I heard the hon. Lady, but yet again the Opposition are failing to grasp the severity of the problem we are trying to deal with, and so honour our manifesto commitment to squash the issues with free speech on our campuses. Those issues are much more entrenched than simply no-platforming. We have heard that from various sources, academics and students alike, who have told us that they have felt curtailed in their ability to speak out on certain issues, to teach certain topics, and so on.
Matt Western
I will be delighted to hear more. I hear the Minister and the point made by the hon. Member for Congleton. I want to repeat the words of Professor Kaufmann, who was a star witness for the Government, if we may use terms like that:
“The no-platforming incidence is really the crux of the issue, which the Bill will address.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 90, Q184.]
Those are his words, not my words, which is why I am asking—as was put differently by my hon. Friend the Member for Kingston upon Hull West and Hessle—why that data has not been available for the past few years. The reason it was not being reported was that there was clearly no issue.
Michelle Donelan
I think it is quite clear, from my own words, that the Government do not feel that no-platforming is the crux of the issue; the issue is a chilling effect. We have been very open about the fact that the number of no-platforming incidents is low, but the Bill is about the broader issue of the chilling effect.
Michelle Donelan
I agree with my right hon. Friend, but I fear that we are slipping into a debate on the necessity for the Bill itself, which we have already had at great length on Second Reading. I close my remarks on the amendment.
Matt Western
I hear the Minister. I believe that the amendment was a constructive suggestion, and we would have liked it to have been formalised in the Bill, but I will not press it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Michelle Donelan
The Office for Students is the regulator for higher education in England and as such it has a vital role to play in ensuring that our universities and colleges continue to be spaces where views can be freely expressed and debated, without fear of repercussions. The OfS regulates English higher education providers by way of registration conditions. The current registration condition requires higher education providers registered with the OfS to ensure that their governing documents uphold certain public interest governance principles. Those include principles that relate to protecting academic freedom and taking reasonably practicable steps to secure lawful freedom of speech. Therefore, the OfS already has experience with freedom of speech and academic freedom.
To protect freedom of speech and academic freedom to the fullest extent, we need to create a new mandatory initial and ongoing registration condition in the Bill. Clause 5 amends the Higher Education and Research Act 2017 to provide the legislative framework for the creation of the new registration conditions. Proposed new section 8A of the 2017 Act requires the OfS to ensure that the registration conditions of higher education providers include certain specific requirements. They must include a condition that the institution’s governing documents are consistent with its freedom of speech duties and that it has adequate and effective governance arrangements to secure compliance. They must also include a requirement that the governing body of the higher education provider complies with its duties under new sections A1 to A3 of the 2017 Act, as inserted by clause 1 of the Bill. Finally, in the case of approved fee cap providers, a particular category of registered providers, the ongoing registration condition must include a requirement to keep the OfS informed of their student unions.
Clause 5 will ensure that the registration conditions relating to freedom of speech and academic freedom are aligned with the duties imposed on higher education providers by the Bill. The OfS will be able to ensure compliance with the new registration conditions by using its powers of enforcement, such as the power to impose monetary penalties. The creation of these new, stand-alone registration conditions will highlight the importance of freedom of speech and academic freedom. It will make the obligations of higher education providers more up front and it is therefore a central part of how the Bill will work. I urge that clause 5 stand part of the Bill.
Matt Western
Sir Christopher, I do not wish to say any more on this clause; I am willing to let it pass.
The Chair
I am sure the Committee will be delighted.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Regulation of duties of students’ unions
Matt Western
I beg to move amendment 77, in clause 6, page 7, line 10, at end insert—
“(3A) Any monetary penalty will be limited to a maximum amount set out by the Office for Students decided in consultation with representative bodies of universities and of students’ unions.”
This amendment would ensure that there is a limit on the penalty to be paid by an individual or institution as a result of this legislation.
With the amendment, of course, we have clause 6. The concern that we have throughout the Bill is the additional burden that it will place, as we have said so many times, on the universities, colleges and others that will be covered by it, as well as the student unions. We have to put this in the context, which I have cited before, of what is going on and what the Government seem to be doing, which is centralising powers in bodies that are not necessarily independent in the way that they are suggested to be. I really am very worried, like my right hon. Friend the Member for North Durham, about how this really centralising and very authoritarian Government are introducing red tape and placing more burden and more cost on institutions and student unions. We see this in other fields as well.
What is clear from this legislation and what we have heard in evidence is just how much responsibility will fall to student unions. The regulatory burden that they will face is really disproportionate. They are already subject to the regulation in this area by the Charity Commission. However, in the Bill, there is no mention of it, even in the schedule, as far as I can see; perhaps the Minister can point it out to me in due course. I cannot see anything about the Charity Commission, which is the regulator of student unions. Looking at the Bill, we would not even know that the Charity Commission existed or had any remit over student unions. It is not in the body of the Bill; it is not even in the schedule—it is nowhere. Perhaps it is the case that the Government want to leverage out the Charity Commission from any say in what goes on in our universities. Perhaps the Minister could address that point specifically. As has been said before, how will the Office for Students and the Charity Commission engage? Student unions are unincorporated associations, so it is not clear how these penalties will apply in practice. Also, the proposals covered in the Bill do not recognise the devolved nature of student unions’ governance, as we have said before. For example, a chair of a society may not follow an agreed procedure, which could result in an invited speaker needing to be disinvited once due process was followed.
Emma Hardy
I will continue to make this point, because it is an important one that needs to be made: not all student unions are wealthy institutions. As I have already mentioned, the Bill includes higher education organisations and further education colleges that might not even have any full-time officials working for their student union, but will have to comply with this heavy piece of legislation.
The problem with the Bill is that it has been written in the belief that every university is like the Russell Group universities, forgetting the many York St Johns and Liverpool Hopes out there, which are much smaller institutions but still part of the higher education landscape. How on earth would some of those student unions be able to afford to comply with the legislation, as the Minister is asking them to?
Matt Western
My hon. Friend is right, and that is a point I was going to come on to. I was just looking through my notes about the Office of the Independent Adjudicator and I saw that it said its membership has increased from 150 providers in 2014 to almost 800 providers in 2021, and that is an absolute plethora of universities, colleges, and so on. They are all of different sizes. An agricultural college might have a couple of hundred students, or as could a specialist performing arts college, a music college or drama college. What on earth will this measure do to such institutions, in terms of their liability and responsibility? They will certainly not be able to afford and sustain societies in their student unions.
It is incredibly concerning and there is almost a failure in the Bill to accept the burden that will head the way of these colleges from Government. I think we heard that really clearly from Hillary Gyebi-Ababi, the vice president of the National Union Students. She talked about the huge financial impact on the sector, saying:
“If I am being completely honest, a lot of stuff in the Bill is really, really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128.]
In another evidence session, my right hon. Friend the Member for Hayes and Harlington made the point to Professor Kathleen Stock that
“The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are”.
Professor Stock replied:
“I can see that it is a risk.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 14.]
Professor Layzell of Universities UK also gave evidence, saying:
“Again, we would want the sanctions to be proportionate. I think I would look at it in the context of us all wanting to do better in this space.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126.]
On Second Reading, a point was made by my hon. Friend the Member for City of Durham (Mary Kelly Foy):
“In fact, Durham University has informed me that, far from encouraging a wider range of views, the threat of sanction could actually result in a more risk-averse speaker programme.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]
A great many more people from across the sector, including from student union bodies, have registered that concern about how they see the Bill having the reverse impact to the one intended, and having a chilling effect of reducing free speech and debate on our campuses, irrespective of their size.
Emma Hardy
I am in complete agreement with my hon. Friend. Going back to the point regarding student unions, a one-size-fits-all fining system could find that for a student union with a much lower income and smaller resources, the proportion as a percentage would be much higher, which is why, as my hon. Friends propose, we need consultation with representative bodies of universities and student unions. If we want to impose the same punishment in relative terms, that could then be done accurately.
Matt Western
The frustration from right across the sector is that there has not been more consultation, discussion and engagement about the issue and how to address it, and how to deliver legislation that might be workable across the sector with the representative bodies, the Government and so on.
My concern is that this measure is another example of how the matter has been left wide open, and that is problematic for the bodies—in this case, the National Union of Students and the various student unions. In the short time that I have had in terms of exposure to the sector, I say to the Minister that it has a profound and growing distrust of the Government because of this legislation. It feels as though the sanctions have been designed to damage or nullify student unions. On that note, I will sit down.
John McDonnell (Hayes and Harlington) (Lab)
I make this simple point. Like my hon. Friend, I have met the National Union of Students to talk about the legislation. One question asked was, “What have the Government got against young people?”, because this seems to be an attack on an organisation that young people rely on. I do not understand it. If the legislation is to act as a deterrent against poor behaviour, the Government need to set out what the deterrence is. If there is an element of risk if procedures are not adhered to, that needs to be set out. Normally when introducing sanctions, at least there is a tariff system of some sort. In this legislation, there is no tariff. We are completely in the dark.
The obvious solution is to simply consult people about what the levels should be and how they should relate to certain types of behaviour. In normal circumstances when we impose sanctions, that is what Governments do. Even when it comes to criminal sanctions, there is extensive consultation. Certainly when they introduce civil elements of a sanction, there is detailed consultation throughout with the relevant parties, but that has not taken place in this case. All the amendment would do is ask the Government to sit down with the relevant bodies that will be affected so that they can agree, or at least be consulted on, the nature and level of the sanctions that will be introduced, and—we have referred to this in previous debates—a realistic maximum that does not break the institutions that the Government seek to work with.
When the Government introduce contentious legislation such as this, it is best to take people and the organisations that will be affected with them. The best way of doing that is to engage them in consultation and discussion about the detail of the legislation as it is rolled out. I hope the Minister can give us some assurances—
Matt Western
I could not agree more. As my right hon. Friend described it—he has years of experience in this place—the concern is about how we go through the process of devising and constructing legislation by using a collaborative approach. If we do not pursue that, it could readily be interpreted as wishing to intimidate student unions, which is my real fear. The Bill is designed to act as a big, stamping foot and say, “We’re not going to tolerate this kind of behaviour any longer.” The Government could simply have created a schedule and worked with the student union bodies to devise what the implications might be for insurance, as my right hon. Friend describes, and what would be a proportionate way to introduce some kind of sanctions scheme.
John McDonnell
That is what generated my question. Why are the Government targeting young people in this way? It would not take much for the Minister to go away and to come back and give the House an indication, at least before Report, of the types and level of sanctions the Government are considering. When the Bill goes to the other place, there will be some insistence on that.
It is very rare for this House not to have some indication of the scale of a sanction that is being introduced in criminal or civil law, because it is seen as unfair. In both the Commons and the other place, there has been a consistent standard of behaviour: when the Government impose sanctions they undertake considerable consultation, so that people have confidence in the legislation that is passed, and in the institution that will adjudicate on the monetary penalties levied. I speak as someone who has been trying to amend Government legislation for about 23 years, even when my own party was in Government. It is a very simple point—nothing more than that—but it is important and is at the heart of the legislation.
Michelle Donelan
Under the amendment, that the monetary penalty that the Office for Students can impose on student unions for breach of their duty to protect freedom of speech will be subject to a maximum amount, set by the OfS and decided following consultation with representative bodies of higher education providers and student unions. However, the Bill already provides that the amount of the monetary penalty is to be decided by the OfS, in accordance with regulations made by the Secretary of State; the regulations will of course be subject to parliamentary scrutiny. This mirrors the approach taken in section 15 of the Higher Education and Research Act 2017 on monetary penalties imposed on higher education providers.
Matt Western
Given what the Minister was just saying about the promise from the previous Secretary of State, will she say precisely when that will be? She is obviously aware of something that I am not. As my right hon. Friend the Member for Hayes and Harlington says, we would like to see that before Report.
Michelle Donelan
I am not going to set out a detailed timetable, but I assure the hon. Member that there will be sufficient consultation with both the sector and student unions.
Michelle Donelan
Our process here is in line with section 15 of the 2017 Act. It is suitable for secondary legislation that will be subject to sufficient parliamentary scrutiny.
The regulations will make provision about the matters to which the OfS must or must not have regard when imposing the penalty. We intend to ensure in that way that the penalty is set at a reasonable and proportionate level. In making the regulations, careful consideration will be given to student unions’ status and financial position, and their varying sizes,.
Matt Western
I hear the Minister, and she is a decent individual—I am sure that she means well and I trust her—but one cannot say that a speeding fine is proportionate to the driver when one person can afford it and another can ill afford it. We have repeatedly made the point that there is an absolute diversity of institutions, so there is real concern about the measures.
The Government are on a bad wicket already, and given the way that they are going about this, they will lose the faith and trust of the sector, particularly of student unions. I urge the Minister to take on board the suggestions made by my right hon. Friend the Member for Hayes and Harlington to bring the draft regulations as early as possible before Report, to give us an indication of where the Government are heading with the measures.
Michelle Donelan
I think what is actually important is to have sufficient time for engagement and consultation with the sector and student unions, for the very reasons given about their varying size, financial assets and so on. Rushing the regulations would have an effect contrary to what Opposition Members are arguing for.
It is important to note that the power of the OfS to impose a penalty will be subject to the safeguards set out in schedule 3 of the 2017 Act. That reflects the approach taken to the monetary penalty under section 15 of that Act. We see no reason to deviate from that tried and tested approach.
Michelle Donelan
I think that I have been quite clear, but I shall be even clearer: the regulations will be passed via secondary legislation, when there will be an opportunity for hon. Members to scrutinise those decisions. We want to ensure adequate time for consultation with the sector and with students unions to get that right.
Matt Western
The Minister is being incredibly generous. She said that the Government do not want to rush the regulations and need time to go through the proper process. I remember that in March last year, when former Home Secretary Amber Rudd was no-platformed at Oxford, the previous Secretary of State—bless him—said, “Right, that’s it. We’re going to bring forward this legislation.” Here we are, 18 months later. There has been plenty of time, and this has been on the cards for some time, particularly because the legislation has been driven by the right hon. Member for South Staffordshire (Gavin Williamson). It would have been possible to produce the draft regulations if the proper consultation process had been gone through. I really fear that they are being held back for political reasons, and that student unions are going to be hit hard.
Michelle Donelan
I have reiterated many times, as Hansard will show, that it is not our intention to hit, penalise or alienate student unions. We are talking here about proportionate measures to protect freedom of speech. We will ensure that there is a consultation and that the voices of student unions are heard so that the regulations are right.
Michelle Donelan
Before I finish, I will repeat what I said a moment ago. In making the regulations, careful consideration will be given to the status and financial position of student unions and their varying sizes. I hope that having that confirmation on the record will satisfy hon. Members.
Matt Western
I hear what the Minister says. It is so frustrating because we want to be constructive. We want to mitigate the damage of the Bill, but it has been so badly conceived, with so many gaps in it, so much information lacking, and so much left to guidance, it is really problematic. It should be for all of us across the Committee, to accept this. We will vote for our amendment, and hold back on the clause.
Question put, That the amendment be made.
Michelle Donelan
We know the important role that student unions play in ensuring that freedom of speech can thrive on our university campuses. We therefore know how vital it is for the current legislative framework to be extended to student unions and approved fee cap providers—a category of registered higher education providers—as provided for by clause 2. It is necessary to have mechanisms in place to ensure that the freedom of speech duties of student unions are monitored effectively, and that action is taken if the freedom of speech duties are infringed.
Clause 6 extends the regulatory functions of the Office for Students so that it can regulate the student unions. It does that by inserting new section 69B into the Higher Education and Research Act 2017. That new provision will require the OfS to monitor whether student unions are complying with their duties under proposed new sections A4 and A5, as inserted by clause 2. If it appears to the OfS that a student union is failing, or has failed, to comply with its duties, the OfS will be able to impose a monetary penalty. That will enable the effective regulation and enforcement of the freedom of speech duties of student unions by the OfS.
The power to impose a monetary penalty is based on the existing enforcement regimes for higher education providers, and is intended to encourage compliance. Proposed new section 69B will also require the OfS to maintain and publish a list of student unions and approved fee cap providers. That will make it clear which student unions the OfS has been informed by these providers are subject to the duties in new sections A4 and A5. It will also require those student unions to provide the OfS with information that it may require for the performance of its functions.
These new regulatory functions are intended to support the new duties in clause 2. Together with clause 2, clause 6 will ensure that freedom of speech is protected not just by higher education providers but by student unions and across campus. I believe it is a necessary and important part of the Bill, and I beg to move that it stand part.
Matt Western
It was not just our amendment 77. The nub of the problem is how student unions are being muscled by the Government to do certain work for them. I cannot help but use the word “authoritarian” throughout, but this heavy jack-boot seems to be stamping down on student unions across the country, particularly the smaller ones, which will not have the scale, finances or resource to sustain the obligations that the Government are putting on them—particularly if that is the Government’s aim. Maybe their intention throughout all this is to see the demise of student unions and maybe some alternative structure to replace them.
Emma Hardy
I found this the most disappointing part so far because we are talking about issues of equality. The Minister said she had the higher education and further education brief because they wanted to bring more equity into those areas. We know what will happen under the Bill: the student unions with money and resources will be able to comply and continue, and the student unions without them will not; they will not be able to offer what they have been able to offer so far. It is incredibly disappointing for the Minister to say that secondary legislation will be where the consultation happens. That is an incredibly disappointing response from the Minister. I hope she will recognise that what the Bill actually does is create a system where only the elite universities have functioning student unions and the rest of the students can do without.
Matt Western
Labour cannot support this clause in its entirety. There are many points that could be highlighted. New section 69B(9) states::
“If a students’ union fails to comply with a requirement under subsection (8) and does not satisfy the OfS that it is unable to provide the information, the OfS may enforce the duty to comply with the requirement in civil proceedings for an injunction.”
God, the heavy hand of Government! It is like the opening credits of Monty Python with that hand coming down from the clouds and stamping on the little person, and that is the case for student unions across the country.
Matt Western
I stand corrected. The hon. Member obviously misspent more of his time than I did watching that. Whatever part of the anatomy it was, it was coming down rather heavily on the small person. That is what the Government are seeking to do. It is quite clear that the intention in No. 10 and its policy unit is to drive out student unions in this case and change the representation on how bodies may be affiliated on our campuses.
Too much of the clause is down to guidance and none of it has been done in collaboration with student unions. Student unions are not professionally organised with huge resources behind them to counter this and take the Government on. I would have thought the Government would be much more willing to work with student unions and with the National Union of Students and say, “We want to collaborate with you. We do understand there is this issue, and you perhaps appreciate there is a bit of an issue in certain places. How is it that we go about best addressing this issue across certain campuses?”, realising that it is not the case across 98.9% of events. We cannot support this. The obligations and duties on student unions are far too onerous, and we will be voting against the clause.
Lloyd Russell-Moyle
As we have heard, this is one of the most worrying parts of the Bill because it seeks to regulate private associations even further. It is a very dangerous step because it starts to undermine freedom of association and the ability of people to do what they wish. Student unions, of course, came under the regulation of their institutions through the Education Act 1994. That Act also allowed students to opt out, which was widely touted to be an attempt to bring in an Australian-style opt-in for student unions, in the hope that it would destroy them, as happened in Australia. That failed, and more than 25 years later this is the next attempt to try to undermine and obliterate student unions and to obliterate the poorest or most fragile parts of our HE sector.
Matt Western
I beg to move amendment 35, in clause 7, page 8, line 20, leave out “or was”.
See the explanatory statement for Amendment 37.
The Chair
With this it will be convenient to discuss the following:
Amendment 36, in clause 7, page 8, line 24, leave out “at any time”.
See the explanatory statement for Amendment 37.
Amendment 37, in clause 7, page 8, line 25, at end insert—
“(2A) An eligible person specified under sub-paragraph (2) may not make a complaint if more than five years has elapsed since the date to which the claim relates.”
This amendment narrows the eligibility requirements for the free speech complaints scheme so that an eligible person may not make a claim if more than five years has elapsed since the date to which the claim relates.
Matt Western
Clause 7, of course, is about the complaints scheme. In that constructive vein that we have spoken of many times before, we want to make some small detail improvements and changes that clarify, or are more appropriate than, what is currently referenced—hence amendments 35 and 36. The amendments are intended to address the scheme and seek to introduce tighter, but not unreasonable, requirements for someone to go through the complaints scheme.
Amendment 37 stipulates the narrowing down of the eligibility of someone who comes forward to seek redress. The Bill seems to appear to remove any minimum requirements for standing. As it stands, the OfS scheme is open to anybody who is or was a member of staff, of the students’ union or of the provider, or who was at any time invited to be a visiting speaker. That opens up a can of worms. Just think, through the aeons of time, how many people could be eligible to make claims against universities and students’ unions through the scheme. It would really widen the scope of eligibility with two significant consequences.
The first consequence is regulatory. A broader standing has the potential to overrun the OfS scheme with a flood of complaints, much like the issue of tort, as we discussed earlier. What is to stop the 43 people mentioned in the examples given by the witness Bryn Harris all lodging freedom of speech complaints under the scheme the day the Bill passes? Nothing. As it is written, they are all eligible for it, even though some date back to—I am trying to recall the earliest I can recall—2013 or 2015, and certainly before the five years we propose.
The second consequence is the effect on administrative justice. Could the Bill, as written, introduce an element of retrospective administrative decision making? Given that the legislation is so clunky and full of holes, it is disappointing that we heard from only one lawyer. I am pleased that we put forward one, but I regret not putting forward a second in order to get a broad perspective on the Bill. I am sure that two lawyers would have picked the whole thing apart. However, Smita Jamdar from Shakespeare Martineau—the one lawyer we heard from—said,
“Until quite recently I would have been confident that, as a matter of rule of law, you could not retrospectively apply conditions in that way. However, I am less confident about that than I have been in the past. I think there are regulatory trends that say that people do sometimes try and retrospectively shift the goalposts.”
In such cases, judicial review could step in—or so the Minister may claim. However, Ms Jamdar said,
“Normally, you would then potentially be able to go for judicial review, and say that this is a decision that is in breach of public law principles, either because it is irrational or in some way procedurally flawed. However, under the Bill you would not have that right because you cannot challenge the decisions of the free speech champions.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 58, Q112.]
My colleagues and I will address the concept of appeals later, during the next grouping of amendments.
However, although it may be true that the scheme has the power to weed out some vexatious claimants, if “eligible persons” is expanded too broadly, it will be left to the Office for Students to sift through numerous complainants. That could have the effect of taking away resources from the operation of the scheme, undermining its effectiveness and therefore the purpose of the Bill.
We are still none the wiser about the scale of the operation under the Office for Students. How many people will it employ, and will they be full time? Will the director of free speech be full time? The chair of the Office for Students is not full time. How much of that director’s professional time will be devoted to this matter? How many people will they have within that, and at what budget? As it stands, we are concerned that the measure will open the floodgates. That is why, under amendment 37, we propose that the period should be limited to five years, counted from the date to which the claim relates.
Michelle Donelan
Amendment 35 would allow only current students, members or staff of a provider to make a complaint to the Office for Students complaints scheme. A key aspect of the Bill is that it provides new routes of redress to individuals who have suffered loss as a result of a breach of the new freedom of speech duties. That includes where students have been expelled from courses or where staff members have been dismissed from their jobs. The amendment would prevent former students, members and members of staff accessing the new complaints scheme.
Of course, the duty will have been owed to such individuals while they were at the provider. In circumstances in which they have subsequently left the provider, however, it is also important that they are still able to access the complaints scheme. For example, we must ensure that, if a provider breaches its freedom of speech duties in a way that leads to a staff member leaving their role, that staff member is still able to access the complaints scheme, otherwise the Bill would be fundamentally undermined.
Matt Western
May I explore that a little further to understand that? Are we saying that the former Secretary of State could go back to the University of Bradford, a fabulous institution, which I was delighted to get the chance to visit, and say, “I had this particular issue” whatever number of years ago—I assume something like 15 years, but perhaps longer—would he be able to do so under the Bill as drafted?
Michelle Donelan
The time limit refers to amendments 36 and 37, which I will proceed to, but indeed we are not setting a time limit. It would depend on what had happened and the facts that were available. It would be investigated. I am not convinced that getting into a speculative hypothetical will help today’s discussion.
Amendments 36 and 37 seek to impose on the face of the Bill a time limit of five years as to who may bring a complaint to the OfS complaints scheme. As drafted, proposed paragraph 5(2)(a) of new schedule 6A in clause 7 sets out that the complaints scheme
“may include provision that…complaints…must be referred under the scheme within”
a specific time frame. That reflects similar provisions in the Higher Education Act 2004, enabling the Office for the Independent Adjudicator for Higher Education to set a time limit for its scheme. The OIA only considers complaints made within 12 months of the date that a higher education provider told the students of its final decision. That is considerably shorter than the five years in the suggested amendments. To refer back to the point made by the hon. Member for Warwick and Leamington, that needs to be decided by the director and in the guidance and regulations. We are not setting out a timeframe in the Bill. That would come in the detail.
Michelle Donelan
To clarify, in the Bill there is no time limit, but our full expectation is that there will be one in accordance with precedent, such as that of the OIA. There will be a reasonable time limit, set in conjunction with the voices that have been heard, of the sector and of the hon. Member for Warwick and Leamington, who made his suggestion today. Accordingly, when the OfS sets out the details of the complaints scheme, it will be able to set an appropriate time limit. It is not necessary to set that out on the face of the Bill, as I have stated.
Matt Western
I hear what the Minister has said and I absolutely take her at her word. I therefore very much look forward to seeing that specified in the guidance. So, there will be a time limit, otherwise there will be an almighty problem, not just for universities and student unions, but for the OfS. It could become a ridiculous situation. Given what has happened with claims in Northern Ireland and elsewhere, for example, as the Government have sought to introduce limits there, I imagine some consistency from them in applying a limit here. Will the Minister confirm whether she is considering amendment 35—likewise amendment 36—for inclusion in the Bill, rather than letting the matter be dealt with in guidance, otherwise we will press it to a vote?
Michelle Donelan
Amendment 35 would seek to allow only current students, members and staff of a provider to make a complaint, which would rule out those who had been expelled or lost their job as a result of free speech so, absolutely, we will not consider it for inclusion.
Matt Western
I hear the Minister. I take on board her comments on amendment 37. The matter will be considered and the result issued in guidance. However, we will press amendments 35 and 36 to a vote.
Question put, That the amendment be made.
Higher Education (Freedom of Speech) Bill (Seventh sitting)
Matt Western Excerpts(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
John McDonnell
The problem is that it will either simplify it to the extent that it becomes meaningless—just a tick-box exercise—or it will become a voluminous burden placed on colleges, when some do not have the resources to respond in that way. I offer this suggestion in the spirit of compromise: it would be best left to the Office for Students, along with the new director, which is already charged with the overview of the operation of the legislation. It would be best for them to consult with the relevant authorities and the colleges themselves, and in due course come back with an appropriate procedure. I would not want to fetter their discretion with an amendment like this at this stage.
Matt Western (Warwick and Leamington) (Lab)
I add my personal congratulations to the Minister on her expanded responsibilities. After yesterday’s sitting, I hope that she will have a lot of time to apply to the guidance that we discussed, in addition to all her new responsibilities. I am sure she will, and that she will have many more staff to support her. I wish her well.
I understand where the right hon. Member for South Holland and The Deepings is coming from with the amendment. As we have heard throughout our proceedings, this piece of legislation is not only burdensome—and, we argue, not necessary—but has not been fully thought through. It seems to have been rushed. The 90-odd—whatever number—amendments we may be up to now seem to suggest that there is a lot wrong with the Bill.
My concern, as has been articulated by my right hon. Friends the Members for North Durham and for Hayes and Harlington and my hon. Friend the Member for Kingston upon Hull West and Hessle, is about the additional work that the Bill will lead to for students, student unions and universities, as was well said. I think back to the days of 2010 and what might be described as the Cameron Government, and there was a great blaze of “We are going to rip up legislation”, or, “We are going to reduce all the red tape and burden on business and organisations”, and yet here we are with a Government who seem to be acting in quite the reverse way. They seem to be putting more and more constraints on businesses and the public sector.
Mr Jones
I remember those days with affection, because at least we knew where the Tory party was. The Tories said that they would have a “bonfire of red tape”. Now, not only do we have an Administration for which that is smouldering embers, but we have the Government putting fuel on to that fire, rather than putting it out.
Matt Western
I agree entirely with my right hon. Friend. I am just not sure where this reporting will end. Will we end up with universities having to report about whether people are tweeting from a particular political persuasion, or the political leanings and make-up of those on the governing board, and so on? I think that is an alarming direction to be going in.
Emma Hardy
As we recall, the previous Secretary of State for Education wrote two letters to the OfS. In both those letters, he demanded that it reduce the amount of regulation given to universities, so I am not sure how the amendment stands with the directions of the now previous Secretary of State.
Matt Western
My hon. Friend is right, and her experience is appreciated and valued. I think we have a problem, in that the OfS is a bit of a misnomer. I am not entirely sure that its interests are aimed at students, or whether its responsibilities are more towards the institutions or, increasingly, about being an office for Government, as opposed to an Office for Students.
Do we have reporting on the number of incidents of violence against women? Do we have reporting data on mental health incidents and issues? There are so many important and pressing issues among our student communities across the country, but those are not being listened to by the OfS. I would have thought that, given it is a few years since its inception and it has a new chair, surely those are the sorts of issues that its chair would want to get into—to understand what is of concern to the student body, as opposed to what is of concern to the Government.
With the idea of having the report—we have debated what it might look like—I think back to the days of my previous role in business and, in a subsidiary organisation, of the reporting that would go to head office. How should it look, or was it just something we knew would just sit on a shelf and never really get looked at? It helped those in head office that they had those reports.
The crucial thing, I would say, is that with any move by the OfS, it has to look at systems of standardising the data that comes in on the areas that I have been discussing—mental health, violence against women, accommodation and so on—before it starts to introduce the burdens. As was said in the Government’s own impact assessment, the costs will already be something like £48 million over 10 years—the burden of this legislation, even before we get into quarterly submissions as well. At a time when universities and higher education institutions are under huge pressure, that is an unnecessary additional request.
Sir John Hayes
This has been a useful discussion. We have to be clear about what the director for freedom of speech and academic freedom within the Office for Students will do. Will he be driven by queries and complaints, which is perfectly possible? Is he there to monitor, to have a proactive monitoring role? Will he be a mentor and guide, and advise? Indications so far are that guidance will be issued and be sufficient to ensure the consistency I called for earlier, but to streamline the process rather than to complicate it, having a bottom-up rather than top-down approach—in other words, asking the universities themselves to make it clear how they will interpret and enact the duty—would seem to be a simpler process than many of the other things that I have described?
Matt Western
That could be the case—I thank the right hon. Gentleman for his intervention. The concern overall is about the number of reports. It could well be that guidance can assist in the delivery of that, but we will see. As my right hon. Friend the Member for North Durham mentioned, the criteria and what leads to sanction are important to establish.
Finally, we have to be careful about the number of demands on the universities, and we have to be consistent about how frequently we want those reports to be provided. Looking at the other amendments in which we ask for reporting from universities or from the OfS, there is some inconsistency—amendment 73 tabled by the right hon. Member for South Holland and The Deepings and our amendments 54 and 79. We have to have consistency. It would have much more weight if there were an annual report, which everyone knew they were working towards. With the introduction of the REF and the TEF—the research and teaching excellence frameworks—and so on, there are huge demands on the institutions.
Dr Greg Walker of MillionPlus made it absolutely clear—he was one of many to be quite outspoken—in saying that the Bill should
“avoid adding unnecessary bureaucratic burdens on universities which would risk diverting resources away from the frontline education of students.”
That is what the university institutions, and the NUS and the student unions want as well. That is not to defer, delay or prevaricate about understanding the need for reporting. Let us ensure that the reporting that is required, or requested, by the OfS is consistent and useable, as opposed to being about the sorts of issues that many on the Opposition Benches have suggested.
The Minister for Universities (Michelle Donelan)
Thank you, Sir Christopher, and thank you for your kind words and those of other Committee members.
The amendment seeks to require providers to report quarterly to the Office for Students on how they are meeting their freedom of speech duties. The duties in the Bill, including those relating to the OfS, sit alongside duties already set out in the Higher Education and Research Act 2017.
The OfS regulates higher education through a register of higher education providers. It imposes initial and ongoing conditions of registration on providers, and monitors and enforces their compliance. There are already clear requirements for registered providers to give information to the OfS. Under the existing registration conditions, providers must provide the OfS with such information as it may require for the purposes of performing its functions. Providers must also take steps to co-operate with reasonable requests made by the OfS in its monitoring or investigation work. That may include providing explanations or making documents available.
The information requirements form part of a mandatory registration condition under section 8 of the Higher Education and Research Act 2017, and have been implemented by the OfS via registration condition F3. There are also mandatory registration conditions relating to governance, which ensure that providers have the necessary governing documents and management systems in place to comply with their registration conditions, including those concerning freedom of speech.
In addition to those existing requirements, clause 5 of the Bill will provide for new mandatory registration conditions relating to freedom of speech. The creation of the role of director for freedom of speech and academic freedom under clause 8 will mean that there is an ongoing focus on this area.
In light of that, I hope that the Committee shares my concern that the amendment would create an unnecessary bureaucratic burden on higher education providers. I will, however, reflect on the comments made by my right hon. Friend the Member for South Holland and The Deepings and other members of the Committee. Nevertheless, I believe that there are already sufficient powers in existing legislation to enable the OfS to request information and to monitor and enforce providers’ duties effectively.
Matt Western
I hope that the Minister will agree with me—with us, perhaps. The evidence that the Free Speech Union provided included a whole list of what it described as “incidents”. It recorded a plethora of them, but they were clearly very diverse. How those might be categorised into some sort of report would be extremely difficult. Also, something we picked up from the vice-president of the NUS was how she believed that this reporting, this burden, and much of the legislation, will have the reverse effect, impacting on so many of the smaller institutions. That reverse chilling effect might lead to less free speech on our campuses, whatever shape and size they might be.
Michelle Donelan
I disagree with the hon. Gentleman about the reverse effect. A key part of the legislation is that it will place a duty on providers to promote free speech. If the opposite were happening, they would contravene the Bill and the director would step in.
Another concern with the amendment is that it would be out of kilter with the approach taken to other registration conditions. As Opposition Members have said, so many things could be asked of the OfS on reporting and our providers. There is a balance to strike. I remind Members that, a year ago, the Government made a commitment to reduce bureaucracy for our higher education providers. A further information requirement, in addition to what is already in place, would increase bureaucracy and the burden on providers. I am not convinced that there is a clear need.
I trust that the Committee will agree that we do not wish to impose a further burden and that the amendment is not necessary. However, I will continue to reflect on the points made in the debate.
Matt Western
I actually agree. What is the new role? What is the remit of the director of free speech and academic freedom? It is not clear just how powerful that individual will be, what size the department will be, and how far-reaching those powers will be. The right hon. Gentleman’s point is extremely well made and very important. One of the Opposition’s amendments relates to how that person should be appointed and what reporting back there should be from them and that department. The key thing will be to appoint that person in the light of a set of criteria that set out the intention for that role.
Sir John Hayes
I happily give way to the hon. Gentleman, and then I will wrap up, because I know the Minister want to make progress. Did he want to intervene? Was it about Marxist-Leninism?
Matt Western
Not entirely, but on the point about tractor production—this is serious—if we think about the number of students arriving on campus this autumn, if there was some understanding or plan, that might have been more helpful than the slight chaos that many universities will face as a result of the A-level results.
Sir John Hayes
I start with the assumption that we will have to engender some good will towards the process, because the aim is for universities to be co-operative. I certainly would not want to make this an attack on the sector—that is not how I see it—but it is a requirement on the sector. Not all obligations are by their nature antagonistic. My aim in proposing the amendment is to say to universities, “Look, describe what you are doing and how you are doing it, pertinently, briefly and coherently.”
It may well be that once the new director is in place, he finds some other means—not this quarterly report—of eliciting this information from universities, but my purpose in putting the amendment forward was to create greater certainty and clarity in the minds of universities and those who are profoundly concerned about free speech and its absence, as my hon. Friend the Member for Congleton and I are, and, moreover, to send a signal about how serious the duties are. I re-emphasise that all the witness statements we received said that the Bill was significant, and many regarded it as essential.
Matt Western
Does the right hon. Gentleman agree with the point made by my right hon. Friend the Member for North Durham about criteria and sanction? We have to be very careful, because there are real concerns that an appointment could be political and that, if we do not have the criteria clearly established and laid out, where there are those in the OFS who are incredibly political, and who have certain institutions in their crosshairs, they will be gunning for those institutions.
Sir John Hayes
Yes, that is a fair point. Obligations necessitate some kind of sanction when people fail to meet them, do they not? That will also need to emerge in the course of our deliberations, either here, at a later stage, or in the other place. Maybe it will come in the guidance that we are promised from the new director.
The right hon. Member for North Durham was, as I was, a Minister in many Government Departments over a considerable time. Most of the people I dealt with in all those Departments would say to me—I would not be surprised if he found the same—“If you are clear about what you expect of us, we will build our plans around those expectations. If we know what we are obliged to do, we will develop a business plan to do it.” It is not always about what a Minister demands. It is about how clear they are about those demands. That is what I found with the various agencies and organisations I worked with as a Minister in different spheres of Government.
I hear what the Minister says. She has been very generous in saying she will reflect on the point. I respect that and thank her. I think we will return to this matter of being absolutely certain about what universities will do next, the signal that is sent to them and the role of the new director. I have no doubt that that will continue to be debated before the Bill becomes an Act. I hear what the Minister says. I was probing, as she knows. I am grateful for the way she has dealt with the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Western
I beg to move amendment 75, in clause 1, page 3, line 9, at end insert—
“(e) the procedures to be adopted for consulting by ballot staff and students of the provider in making decision about whether to allow the use of premises, and on what terms, for events.”.
This amendment would provide the governing body with a democratic procedure for inviting or withholding invitations to speakers.
The Chair
With this it will be convenient to discuss the following:
Amendment 76, in clause 1, page 3, line 9, at end insert—
“(2A) The provider must have particular regard to the result of a consultative ballot of its staff and students in making decisions about whether to allow the use of premises and on what terms.”.
This amendment would provide the governing body with a democratic procedure for inviting or withholding invitations to speakers.
Amendment 74, in clause 1, page 3, line 20, at end insert—
“(6) The Code of Practice shall include procedures to be followed to ensure the right of peaceful protest by staff, students and other interested parties.
(7) The Code of Practice shall include procedures for consulting recognised staff unions and student unions on amendments to the code of practice.”.
This amendment would ensure that university authorities set out procedures to facilitate peaceful protest on campus, and to engage with campus stakeholders on amendments to the code.
Matt Western
I will address these amendments in turn. While I appreciate the three of them being grouped together, the essence of the amendments is about ensuring the retention of democracy within our institutions, whether that be among staff, students or the entire body. I thank my right hon. Friend the Member for Hayes and Harlington, who inputted the content of these amendments and is keen to speak to them.
It was interesting to hear from Danny Stone from the Antisemitism Policy Trust, who referenced the Manchester principles, which he worked hard on back in the day. Under those principles, an event was first advertised, in order to allow students to object if they thought it necessary. That is important. Amendments 75 and 76 echo the sentiment of the Manchester principles. We also heard in the evidence sessions from Professor Jonathan Grant from King’s College London about the work that KCL and other institutions have done. He said,
“What we did at King’s was work with our student union in developing a joint statement modelled on the Chicago principles and signed by both the president of the student union and the president of King’s College London. On the back of that, we developed a committee that reviewed all so-called high-risk events. That committee was made up of equal numbers of university staff, academics and professional staff, and students. It made recommendations to the senior vice-principal for operations and, potentially, to the principal. In my mind, creating a sort of co-production and co-creation process around managing those events was deeply beneficial because”,
as Professor Layzell had said,
“both sides started having conversations about the boundaries of what is and is not acceptable. Both groups then owned the process and the mitigations thereafter.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 123, Q268.]
The approach of KCL, University College London and many other institutions has been to establish these sorts of co-production and co-operative processes to ensure the rights to free speech are heard, but within an understanding and responsibility to the Equality Act 2010. That shows changes could have been put in place across the sector if the Government had consulted and engaged more openly with the sector, and looked at the likes of KCL, UCL and others to see best practice, what can be done, and what could be developed.
In response to the comments made by Professor Grant, Professor Layzell said that Universities UK would absolutely support that approach, and that what Professor Grant was saying was right. This can be achieved and it could have been achieved. That underlines the belief right across the sector that this legislation is unnecessary. Their process and these amendments seek to ensure the inclusion of all voices and all relevant parties interested in free speech on campus, and to achieve the cultural effect the Government are trying to achieve. We believe that, through a democratic process and through the engagement of all parties, that could have been, and could still be, achieved. As many have said, the legislation is a real sledgehammer to crack the proverbial nut.
I turn to amendment 74 on the countervailing right to peaceful protest by staff, students and other interested parties. We seem to be losing some sort of perspective on how important protest is. In the Police, Crime, Sentencing and Courts Bill, there is a move by the Government to suppress freedom of speech and people’s right to protest on whatever it may be, whether they be on the right, the left or anywhere in between. People have different views, and they should be allowed to express them. Protest is just one simple form of freedom of speech. I am sure, Sir Christopher, that you will appreciate that. Back in your days as a student, you would have wanted to exercise that right just as much as anyone else.
Emma Hardy
One of the contradictions that I find with the Bill is that it gives the right to freedom of speech anywhere at any time within a university; however, under the Government’s new Police, Crime, Sentencing and Courts Bill, they wish to ban protest in Parliament Square. It seems slightly muddled.
Matt Western
We could be slightly cynical. I would not personally suggest this, but some might suggest that it is about freedom of speech as long as your speech is the sort of speech that the Government want to hear, as opposed to a genuine desire to have freedom of speech. You have to look at the legislation in the context of not just the PCSC Bill but what is going on with our museums. Sir Charles Dunstone, who I thought was once upon a time a Conservative donor, has resigned from the Royal Museums Greenwich because of the interference coming from the Government.
That echoes the point made by my right hon. Friend the Member for North Durham that there is meddling, interference, and an authoritarian chill going on from No. 10. I do not necessarily believe that the Minister thinks or behaves like that, but an incredibly centralising force is coming through from the Government. Trevor Phillips, in his evidence, said:
“In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 26, Q50.]
We have that right presently, but it is being challenged by the Government. We need to remind ourselves how important freedom of speech is, and how important protest is to it.
Professor Whittle, who I had heard of and read about, gave quite moving evidence. He said:
“I have organised protests outside events myself but that has never been to close down the conversation. It has been to express an alternative point of view—to say, ‘Here are many voices who disagree with the voice inside.’”
It is really important that wherever we may be coming from we have the opportunity to protest and to put across our point of view, exercising our freedom of speech. He added:
“My main concern about the Bill is that it will provide an additional chilling effect overall, not to speakers but to potential protesters. It will result in people who want to express an alternative viewpoint, who are not speakers and do not have that opportunity to participate in the event…having no way of expressing that without appearing to challenge somebody’s right to free speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 38, Q71.]
That was picked up by my hon. Friend the Member for Kingston upon Hull West and Hessle, who said to him:
“So you would want to see amendments to the Bill that gave students the right to continue to protest, and not therefore fall under the guidance of the Bill.”
He replied:
“Absolutely. Legitimate protest within universities is an absolute must.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, Tuesday 7 September 2021; c. 44, Q81.]
What would universities be without protest? What would they be without true free speech? Amendment 74 serves to provide that protection of protest—a physical manifestation of freedom of speech and academic freedom.
John McDonnell
Picking up from where my hon. Friend the Member for Warwick and Leamington left off, for absolute clarity, this section deals with the code of practice, which is one of the most significant elements of the Bill. That is why we need to be more explicit about the range of factors it takes into account.
I am trying to envisage how this legislation will be implemented. We need to look at the most difficult scenarios, not the easiest ones where we have laws that would prevent certain speakers from being hosted at universities because of the nature of the organisations they are associated with or the views they express. My anxieties are about the cases that are not clear cut but that can have a real impact on a community. The best way of dealing with that is to ensure that there is a process of engagement with the communities involved––the students and staff and so on. To democratise that as much as possible, I have suggested in one amendment a balloting procedure, but it does not have to be that; it could be other forms of consultation.
Full involvement is the best way of resolving those difficult issues that are not absolutely clear cut, because that way people are brought along. In addition, we need to establish a process whereby people can engage in expressing a view against a decision with which they disagree. That could be about preventing a speaker from coming on––Sir Christopher, you have had that experience in the past, although I am not sure about the level of riotous behaviour––or allowing a speaker with whom people fundamentally disagree. We have to engage and enable that process to take place or it will spill out in other forms.
The other day, someone explained to me what an arc of narrative is, so I am going to try an arc of narrative. If I start with a story that seems completely unrelated, I promise that we will get there in the end. It is a serious matter drawn from my experience in my own community 40 years ago. A young Asian man was racially murdered in Southall. I live in Hayes, literally half an hour down the road. Community concern was expressed about the lack of policing and the investigation. It was a contentious issue in the community that got national coverage. Then far right groups seized on it.
Hon. Members will remember that in the late 1970s, we had the National Front in its worst forms, and it decided to march through Southall. I had not been elected to any position at that time so I was not heavily engaged, but in my view as a community activist and local resident, the lack of community engagement meant that the authorities did not fully understand the scale of anxiety, insecurity and anger in the local community. The march took place and there was a riot. The interesting thing was that it was not just a riot of protesters: the police lost control, so it was a police riot, too. A young man called Blair Peach was killed. We went on a commemorative walk the following week. It was an appalling story that took place in the heart of our local community.
The lesson to learn from that was to ask whether the community, liaising with the police and all the other authorities, should have allowed that march to go through. The unrest, the violence that took place and the complete lack of control from all angles was almost inevitable. We learned from that, so now judgments are made about whether a particular provocative act, such as a march or something like it, is allowed to take place in certain communities.
What the police have found—I resent what is happening in the new police Bill, which is going through Parliament, because I think it is inappropriate and unnecessary—is that if an action was thought to be provocative in that way, there would be widespread consultation in the community. The police would make a judgment, working with the local authority, local councillors, community groups and others, about whether that march should be allowed to go ahead. We are working on that in my local community now. My worry is that if we do not have in this Bill some process and procedure of engagement with all interested parties, including the students and the staff, the enforcement of the legislation could become heavy-handed and provoke a unintended reaction. We need to think that through.
Some Members have been here longer than me and have dealt with these things for longer than I have, but when considering legislation, is it not always best to take the worst scenario and to legislate for that? That does not undermine the process overall, but it builds in safeguards. The amendment, which is not provocative in any way, would build in the safeguard of ensuring, first, that we had a consultative procedure with staff and students; perhaps elements in the local community will want to engage, as well. Building in a consultative procedure that would enable the university authorities to make a wiser decision. They might completely ignore the consultations, and that is their right, but they should at least have regard to them.
Secondly, I want to go a bit further because I am fundamentally a democrat, despite allegations of Stalinism from certain sides. I fundamentally believe that the best form of consultation is a ballot. People do not necessarily have to abide by it, but a ballot does test the strength of feeling and balance of judgment of the participants—the staff and the students themselves.
Let us consider a belt-and-braces approach. A consultation should be undertaken, and it might include a ballot, depending on what amendment we consider appropriate. We know that, even though views have been listened to, the decision may not suit some people and they might still be anxious or angry about it, so we need to build in the ability and the right for people to protest as well. That is a pragmatic way to deal with issues that are as contentious as this. If we do not build in such procedures, what do we get? We get late 1970s Southall, where people are angry and say, “No one has listened to us. They have allowed this to happen.” People pour on to the streets, the police overreact, and a young man is killed.
I do not want to exaggerate the situation. I am just saying let us at least build into the legislation the possibility that these things might go wrong or go awry. Sometimes things will go awry anyway, but at least we would know we had done our best to undermine the chances of the legislation resulting in unforeseen events that damage the protection of freedom of speech and academic freedom, rather than enhance it.
That is why we tabled the amendments. There might be drafting issues that the Minister and the Committee might like to look at, but that is the spirit in which the amendments were tabled. I cannot see why anyone would disagree with it. The Bill is completely inappropriate and unnecessary, and it will cause more problems than it tackles, but at least let us try to minimise one potential problem, by a democratic process that we are trying to enhance as we sit in Committee today. That is the narrative arc. Thank you, Sir Christopher, for having patience with me. I nearly got there in the end, but perhaps not completely.
Matt Western
I thank my right hon. Friend for giving way, and for how he has articulated his argument. I remember the Blair Peach death and the events that led to it. I mentioned the Red Lion Square disorders during our evidence sessions. At the time, I did not recall that it involved a student from the University of Warwick, who was also killed while protesting against the rise of the fascist National Front. He was the first person to be killed in a protest for 55 years.
When I asked Professor Kaufmann about this, he said that the Bill
“is not really a public order Bill”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 90, Q183.]
I appreciate that it is not a public order Bill, but there are serious consequences, and we have talked about unintended consequences throughout. The kind of behaviours that can result from the lack of engagement and consultation, as my right hon. Friend described, could be very disturbing.
John McDonnell
That is my point. In legislation such as this, it is important to ensure that we identify the unintended consequences. That is what the amendments are all about. As I said, the best way of overcoming them is through maximum involvement and engagement with all those who are implicated in or affected by the Bill’s provisions.
We had a commemoration for Blair Peach only 18 months ago. I was with his widow. We had another commemoration, only a couple of months ago, because, as happens in some of our local communities, someone had stolen the plaque—but, never mind, it came back eventually. That reminded me of how, on contentious issues like this, where there is a distinction to be made between what someone says or does that is clearly illegal and what someone says or does that is just unacceptable—and dangerous in certain communities—there must be some mechanism by which judgment is made by the authorities involved. One of the best ways of informing that decision is through consultation, engagement, and, for me, a bit of democratic decision making too. That is all that the amendments do.
Michelle Donelan
I will try to be brief and not take interventions, given the time. Amendment 74 seeks to ensure that university authorities set out procedures to facilitate peaceful protest on campus and to engage with campus stakeholders on amendments to the code of practice. Amendments 75 and 76 would require the governing body to have a democratic procedure for decisions taken on use of their premises, and a provider would have to have particular regard to that procedure.
Proposed new section A2 of the Higher Education and Research Act 2017 will require registered higher education providers to maintain a code of practice, as they are already required to under section 43 of the Education (No. 2) Act 1986. Providers will, of course, need to revisit their existing codes after Royal Assent to ensure that they are fit for purpose and comply with the new duties of the Bill.
To help providers to update their codes, the Office for Students will in due course issue comprehensive guidance about what should be included in a code of practice. As well as setting out the provider’s values relating to freedom of speech and how those values uphold freedom of speech, the code of practice must set out the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them, and the criteria for decision making on the use of premises. This will ensure that individuals on campus are aware of the ways in which freedom of speech and academic freedom are effectively secured by the provider, and will provide guidance on how individuals can go about exercising their freedom of speech.
Although we encourage providers to work with their university community to ensure these values are upheld in a transparent way, we do not think there is a need to consult on subsequent changes to the code, as would be required under amendment 74. As for the right to peaceful protest, which is also covered by amendment 74, this is a fundamental tool of civic expression. It is in itself an aspect of freedom of speech, and so it is protected by the Bill. For example, if there is a protest against an academic because they have said something controversial but lawful, providers will need to decide what they can do that is reasonably practical to ensure that that academic can speak freely, but without limiting the peaceful protest surrounding them. Proposed new section A2(3) allows providers to include in their code such other matters as they think appropriate. That could include provision on the right to protest as a key part of freedom of speech.
Turning to amendments 75 and 76, it is intended that the code of practice should facilitate the discharge of the freedom of speech duty. A provider could choose to include a procedure for a ballot to assist with selecting speakers in the first place, but to insist on one would be overly bureaucratic. More significantly, one of the aims of the Bill is to secure the freedom of speech of everybody on campus, including those with minority viewpoints. It would not, therefore, be right to mandate a process that would give the majority a right that might act as an effective veto over decision making on events and, in effect, the free speech of minorities.
I hope that Members are reassured that nothing in this Bill restricts the right to protest, and that the requirements for the content of a provider’s code of practice are appropriate as drafted.
Matt Western
I do not have any points to add. I simply wish to push all three amendments to a vote.
Question put, That the amendment be made.