Oral Answers to Questions

Debate between Matt Western and Michelle Donelan

Monday 4th July 2022 Commons Chamber

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

If I may, I start by offering a warm welcome to students from Myton School in my constituency, who join us in the Gallery.

In a recent survey by the mental health charity HUMEN, 57% of students said that they had access to university mental health services, while the charity Mind reports that one in five students has been diagnosed with a mental health condition. The Minister was appointed two and a half years ago. Can she honestly say that she has successfully dealt with the crisis on our campuses?

[Michelle Donelan]

We have, of course, had a pandemic in that time. The Government have ensured that we place mental health at the top of the agenda, and we work in partnership with universities to deliver those services. A summit that I held with the Department of Health and Social Care last week shows that we are working in a joined-up way to ensure that no student falls between the cracks.

Higher Education (Freedom of Speech) Bill

Debate between Matt Western and Michelle Donelan

Report stage
Monday 13th June 2022 Commons Chamber

[Michelle Donelan]

You were not even there.

[Matt Western]

I read every word. I read them with interest.

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

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

Only 14% disagreed.

Oral Answers to Questions

Debate between Matt Western and Michelle Donelan

Monday 14th March 2022 Commons Chamber

[Michelle Donelan]

When we published our response to Augar, we also published our impact assessment in full, but at the heart of our plans is fairness, as I have said, for the taxpayer, for students and for graduates. No student will pay back more in real terms than they borrow. This is the Government delivering on our manifesto pledge to cut interest rates.

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

Research by the Higher Education Policy Institute shows that 70% of parents with children aged 11 to 15 want their children to go to university, but the Government do not share their ambitions. Instead, the Minister is proposing minimum entry requirements of a grade 4 in GSCE English and maths to access student finance. About 70% of pupils in England achieve a grade 4 in GSCE English and Maths, but that falls to less than half for those on free school meals. Why is the Minister prepared to sacrifice the aspirations of students and their families, particularly those from disadvantaged backgrounds?

[Michelle Donelan]

Once again, this shows the Opposition’s obsession with targets and numbers. We want an education system that delivers for the individual, whether that means going into further education, an apprenticeship or university. We want to ensure that every young person knows that whichever option they pick, it is a high-quality option.

Oral Answers to Questions

Debate between Matt Western and Michelle Donelan

Monday 31st January 2022 Commons Chamber

[Michelle Donelan]

I agree completely with my hon. Friend’s assessment of Wiltshire College. Like so many further education colleges, it works closely with local businesses to ensure that residents get the skills that local employers need. That is why the Government are investing in further education. We are providing investment to transform the Lackham campus into an agritech hub, with £1.2 million of capital funding for Wiltshire College, as well as £4 million for the delivery of T-levels to ensure that learners continue to have high-class learning facilities.

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

Parents and families are rightly proud of a child or family member who secures a place at our world-class universities, yet last week many will have seen the Minister belittle their courses and hard work. Her new proposal to fine universities if they do not meet universal thresholds risks punishing universities with more disadvantaged, black and ethnic minority or mature students, who are more likely to take different routes through to higher education. Why is she putting barriers in the way of universities seeking to widen access to higher education?

[Michelle Donelan]

It is a shame that the hon. Member did not pay attention to the announcement we made. Is he actually saying that we should expect the dumbing down of some courses, because those who are disadvantaged do not deserve high quality? Is that really what the Opposition stand for? Let us not forget that many universities are excelling at supporting disadvantaged students to complete courses and go on to get graduate jobs—look at Sheffield Hallam, Nottingham Trent and Kingston. I believe that every student deserves a high-quality education, and so should the Opposition.

Oral Answers to Questions

Debate between Matt Western and Michelle Donelan

Monday 6th December 2021 Commons Chamber

[Michelle Donelan]

My hon. Friend is an assiduous campaigner on behalf of students. I reassure him and the House that we are committed to a funding model for higher education that is fair for students and the taxpayer—a system that enables those with the ability and the ambition to go to university, complete their course and get a graduate job.

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

The Prime Minister is notorious for sitting on reports—he must have piles—but Augur predates even him. With regard to higher education funding, there are reports that the repayment threshold on student loans may drop to £22,000 before graduates start paying back their student loans, which would be both regressive and burdensome. It would be regressive because, according to the IFS, a cut in the repayment threshold would impact worst female graduates and those from more deprived backgrounds, and burdensome because a graduate earning £30,000 a year would have to pay about £400 more on top of £500 more in national insurance contributions, which would represent a real-terms tax rate of 50%. Will the Minister confirm that changes to the threshold will be guided by the principles of fair and progressive taxation? When can we expect the Government’s response to Augar?

[Michelle Donelan]

As I have already outlined, we will report back on Augar shortly. The principles underlying our policies are: a more sustainable student finance system, driving up quality, seeing real social mobility and maintaining our world-class reputation in higher education. That is what we stand for and will continue to work towards.

University Tuition Fees

Debate between Matt Western and Michelle Donelan

Monday 25th October 2021 Westminster Hall

[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.

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

Debate between Matt Western and Michelle Donelan

Wednesday 22nd September 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[Michelle Donelan]

I apologise, Mrs Cummins. I am one ahead.

[Matt Western]

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

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Matt Western and Michelle Donelan

Wednesday 22nd September 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Matt Western and Michelle Donelan

Monday 20th September 2021 Public Bill Committees

[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.

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

rose—

[Matt Western]

rose—

[Michelle Donelan]

I give way to the hon. Gentleman.

[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.

--- Later in debate ---

[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]

rose—

[Michelle Donelan]

I have finished my speech, but I will give way.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Debate between Matt Western and Michelle Donelan

Monday 20th September 2021 Public Bill Committees

[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.

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

Debate between Matt Western and Michelle Donelan

Thursday 16th September 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

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

Debate between Matt Western and Michelle Donelan

Thursday 16th September 2021 Public Bill Committees

[Michelle Donelan]

Government amendments 1 to 26 and new clause 1 concern the position of certain colleges of universities such as the Universities of Oxford, Cambridge and Durham. The amendments will ensure that, in these collegiate universities, colleges are subject to the new strengthened freedom of speech and academic freedom duties in the same way as the registered higher education providers themselves. The amendments will restore a legislative position similar to the one in place before August 2019, when constituent colleges of collegiate universities in England were directly responsible for meeting the duties set out in section 43 of the Education (No. 2) Act 1986 to take reasonably practicable steps to ensure freedom of speech for their students, speakers, members and visiting speakers.

The Bill sets out new and strengthened duties; in particular, it introduces direct routes for individuals to seek redress when they believe they have suffered loss as a result of a breach of the duties, so it is vital that action can be taken directly against the body that is responsible, including when that is a college. As the types of college in scope of the amendments may enjoy a large degree of legal independence from their parent provider, it is possible that, without these amendments, a registered provider could demonstrate that they have met their duty in new section A1 of the Higher Education and Research Act 2017 to take steps that are reasonably practicable for it to take to secure freedom of speech, but a college could still act in such a way as to restrict someone’s lawful freedom of speech.

My officials have held discussions with some of the main institutions that will be affected by the amendments, in particular the Universities of Cambridge and of Durham, and they have indicated that they would welcome the amendments. They do not think that they will result in a burdensome change in practice for their colleges, since in general their colleges have continued to maintain the codes of practice relating to the freedom of speech duties that they were subject to until 2019.

The wording used for the definition of “constituent institution” in new clause 1, in proposed new section A3A(4) of the 2017 Act, reflects the wording that applies to those bodies subject to the Prevent duty and the coverage of the complaints scheme operated by the Office of the Independent Adjudicator for Higher Education. A college that is required to comply with the Prevent duty will, therefore, also be subject to the freedom of speech duties, which is clearly sensible, and the coverage of the higher education complaints schemes will be consistent.

In addition, amendment 3 makes it clear that student unions at approved fee cap providers that are subject to the new duties in clause 2 do not include student unions at colleges. Colleges fund their junior and middle common rooms and, to that extent, can exert a lot of control over their activities. Those groups do not own or occupy their own premises or run the booking the systems, so imposing a freedom of speech duty on them seems to be unnecessary and overly bureaucratic. We do not believe that including them in the provision is necessary, as the freedom of speech duties on the colleges will apply to the activities of their student unions. I hope it is clear that the amendments are necessary for the Bill to work as intended, to ensure that all key bodies in our universities play their part in securing freedom of speech on campus, and to ensure that where they do not, those who suffer detriment can seek redress from whomever is responsible, whether that is a university or one of its colleges or student unions.

[Matt Western]

It is a pleasure to see you back in the Chair, Mrs Cummins. Overall, I have to say that I am really delighted—I think all the Opposition Members are—that the Minister has listened intently to what we have been calling for in our speeches on Second Reading, in Committee and during the witness sessions. We have been calling for clarity. It was clear that the Higher Education and Research Act 2017 made a similar mistake by omitting the likes of Oxbridge colleges and constituent institutions.

--- Later in debate ---

[Michelle Donelan]

We did indeed listen to the sector and Members after the Bill was first published, and we identified a gap. These technical amendments will close that gap, which could otherwise have meant that some individual colleges would not be in scope. Since the Bill introduces new routes of redress for individuals who believe that their lawful freedom of speech or academic freedom has been improperly restricted, it is vital that the right institutions are held responsible.

To reiterate the points that I made in my opening speech, colleges fund their junior and middle common rooms. To that extent, they can assert a lot of control over their activities. Such groups do not own or occupy their own premises or run the room-booking systems, so imposing the freedom of speech duties on them seems quite unnecessary and overly bureaucratic. The amendments are necessary to ensure that the new duties apply to all appropriate bodies on campus and that the routes of redress in the Bill are available for all who need them.

[Matt Western]

The Minister is being generous in giving way. Essentially, what the Bill saying is that the colleges can exert pressure on their middle and junior common rooms and somehow influence behaviour and how free speech is permitted and managed within those forums. It is a delegation to the colleges to do that. But what the rest of the Bill is saying is that all other student unions, bodies, clubs and affiliates are responsible to the university and have to comply. Are we saying that there will essentially be a two-tier system for how the legislation will work?

[Michelle Donelan]

What we are saying is that the junior and middle common rooms are very different from student unions, and we have to ensure that the legislation strikes the right balance—a point made by the hon. Gentleman when we debated the last amendment on bureaucratic burden.

To conclude, colleges have a vital role in the protection of freedom of speech.

--- Later in debate ---

[Matt Western]

I thank my hon. Friend for her intervention. In response to a point by the right hon. Member for South Holland and The Deepings about the detransitioning of research at the University of Bath, Professor Whittle said in evidence that

“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]

The amendment would incorporate innovative research under the academic freedom duty, and that would push the likes of the University of Bath towards further exploring how such research proposals could be encouraged. It is a very simple amendment, but we hope that, in the spirit of how we have tried to co-operate, the Government will accept it.

[Michelle Donelan]

This amendment seeks to extend the duty of higher education providers to promote the importance of freedom of speech and academic freedom so that it specifically applies in the conduct of research, as well as in the provision of higher education more generally. The duty set out in proposed new section A3 of the Higher Education and Research Act 2017, created by clause 1 of the Bill, is a new one. It requires a provider to promote the importance of free speech within the law and academic freedom throughout its provision of higher education. This is a general duty that intends to drive a positive tone on campuses across the country, promoting a culture in which everyone on campus can express their lawful views, and in which academics feel safe to question and test received wisdoms and put forward new ideas and controversial or unpopular opinions.

[Michelle Donelan]

I think that the next part of my comments will address the hon. Member’s concerns. A key element of this duty is to promote academic freedom for academic staff. It is widely understood and set out in international case law that academics should expect that their academic freedom is protected for any research they seek to undertake, as well as in the design and delivery of their teaching and wider comments or writings that they issue. The duty to promote the importance of academic freedom in the provision of higher education will therefore cover research undertaken in that context, noting the high-level nature of the duty. However, I have listened to hon. Members today, and while this will be made clear in the guidance, I shall commit to take this issue away and see whether further clarity would be of assistance.

[Matt Western]

I have heard what the Minister has to say. I take her at her word and look forward to having further conversations and discussions on this issue. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 33, in clause 1, page 3, line 28, at end insert—

“(2) For the purposes of this section, ‘freedom of speech’ and ‘academic freedom’ do not extend to any statement that amounts to the denial of genocide.”—(Matt Western.)

This amendment ensures that the objective of securing freedom of speech and academic freedom do not cover those who make statements that amount to a denial of genocide.

Question put, That the amendment be made.

--- Later in debate ---

[Matt Western]

My right hon. Friend is right: this is yet another example of how things are well managed by students’ unions up and down the country. They see challenges day in, day out, week in, week out. They manage the various, sometimes conflicting, interests of different groups.

My right hon. Friend has given a simple example of an Islamic prayer room and how that can play out between the Ahmadiyya and other Muslim groups. I urge the Minister to take on board our points and make the changes set out in the amendments. The word “any” is problematic and the Government would do well to remove it.

[Michelle Donelan]

The amendments would narrow the application of the freedom of speech duty in proposed new section A4 on students’ unions so that it only applies, as regards premises, to the “sole” use of those premises and does not apply to the terms of the use of those premises.

Proposed new section A4(1) in clause 2 requires students’ unions to take “reasonably practicable” steps to secure lawful freedom of speech. Proposed new sections A4(3) and A4(4) set out how this duty will work in relation to the use of the premises. The students’ union must take “reasonably practicable” steps so as not to deny the use of their premises because of

“the ideas, beliefs or views”

of an individual body when inviting speakers. That was an excellent point made by my right hon. Friend the Member for South Holland and The Deepings.

A key part of the Bill is the emphasis on “reasonably practicable” steps. On the point that the hon. Member for Brighton, Kemptown made, if a range of rooms was available and some rooms were not suitable, for example because of religious beliefs, it would be “reasonably practicable” not to choose certain rooms. However, I have heard the concerns raised in the debate and the evidence that has been provided, so I will commit to take this important point away.

--- Later in debate ---

[Michelle Donelan]

If the hon. Lady will bear with me, I will come on to student societies.

In deciding what is reasonably practicable, student unions must have particular regard to the importance of freedom of speech. This will allow those involved in all aspects of university life to contribute to a culture of open and robust intellectual debate, without fear of repercussion. Those are new duties, providing new protections and ensuring coverage across campus. Proposed new section A5 will require student unions to maintain a code of practice, which will act as an aid for compliance with the new duty in proposed new section A4.

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. That is in addition to the criteria for making decisions about student union support and funding, and who can use premises. The clause sets out the new duties on student unions that are vital for ensuring that freedom of speech is protected to the fullest extent within higher education in England. It is therefore an important and necessary part of this Bill.

New clause 4 would extend the duties on student unions at approved fee cap providers so that they also apply to junior and middle common rooms at colleges and student societies. Taking student bodies at constituent colleges first, the colleges fund their junior and middle common rooms and can exert a high level of control over their activities. We do not believe that imposing the duty on junior and middle common rooms would be appropriate, as they are autonomous, as has been said. Freedom of speech duties would be unnecessary and bureaucratic if applied to junior and middle common rooms. A point was made about booking systems, but even given that junior and common rooms may book rooms, those rooms are owned by colleges and the JCRs have no actual control over them. Given that, we do not believe that including them is necessary as the freedom of speech duties on the colleges will apply to the activities of their student unions. It is important to note that student unions at constituent colleges are not classified as student unions under the Education Act 1994. In addition, the administrative burden on providers to give the Office for Students details of the student unions of their constituent colleges in addition to their own student unions, with the OfS then under a duty to maintain a list of them, monitor their compliance with their duties and deal with them in regulatory terms, as well as under the complaints scheme, would be resource intensive and disproportionate. That point has been made many times by Opposition Members in relation to other issues that have been raised today.

As for student clubs and societies, if they are affiliated to the student union, they will be covered by the student union’s code of practice. If they are not affiliated, they will still be subject to their provider’s code of practice, a point that I think has been missed in today’s debate. For similar reasons to those I have already set out in relation to JCRs and MCRs, we therefore do not think it would be appropriate to extend the duties to cover those clubs and societies directly. I hope that this clarifies the points made, and that we can agree not to accept new clause 4 and to move forward with the rest of the Bill.

[Matt Western]

The debate on these particular points has been really healthy and robust, and my Labour colleagues’ contributions have been extremely important—I particularly note those of my hon. Friend the Member for Brighton, Kemptown. What we have been saying for the last hour or hour and a half is that all we are seeking is consistency in this Bill, and that we cannot afford to have a two-tier higher education system. The words “iniquitous” and “unfair” have been used, but the problem is that either we recognise there is a need for coverage for all bodies and all groups that are exclusively student, as was rightly said, or there is not. The Minister has just said that it would be unnecessary and bureaucratic for this provision to be applied to middle and junior common rooms. We would say that it is unnecessary and bureaucratic for all institutions, irrespective of what they are or their heritage and history, and particularly for the smaller organisations that we keep speaking up for. As is well understood by many of us in this room, the whole higher education sector is incredibly diverse. Many smaller bodies—further education colleges and so on—will not be geared up to sustain these changes.

--- Later in debate ---

[Matt Western]

Mrs Cummins, I am sorry if it was not clear that I was trying to sum up the points that were put so well by my colleagues. The Minister has said that these non-affiliated groups would be covered by these duties, but it is not clear to me or to my colleagues how that will be the case.

[Michelle Donelan]

To clarify, if a non-affiliated group were having an event on a university campus, it would of course be covered under the university’s code of practice.

[Matt Western]

I thank the Minister for her intervention. I do not mean to try her patience; the points we are trying to make are simply an attempt to explore absolutely all eventualities. We have talked about PBSA—purpose-built student accommodation—and the increasing amount of private sector premises on campus and elsewhere that are being used by universities. I can speak from local experience. In Leamington, we have private accommodation that is being used by the student union.

--- Later in debate ---

[Matt Western]

It is exactly that. I will not spin the wheels and repeat exactly what my hon. Friend has said, but perhaps the Minister would like to respond.

[Michelle Donelan]

I appreciate the point that hon. Members are trying to make, but I think it is time to step back and reflect on the consequences of what they are arguing. They are effectively arguing that if a group of students were in their homes, or if they organised an event in a pub, we would have to regulate that. We have to be reasonable about what we are asking universities to regulate and what is in their control.

[Matt Western]

That is the issue, perhaps in part, with the Bill. The Government are trying impose, top down, a series of responsibilities and duties on universities to oversee and implement this legislation. The points we are making are about how many loopholes there are and how groups, particularly well-funded groups and private societies, will disaffiliate from the union and seek other premises in which to practise this sort of speech.

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

Debate between Matt Western and Michelle Donelan

Wednesday 15th September 2021 Public Bill Committees

[Michelle Donelan]

This particular element of the Bill does not deny people the ability to speak on anything, because as I have already stated, academic freedom is a subset of the broader term “freedom of speech”, so they would be covered by that as well.

[Matt Western]

I heard the Minister’s point about committing to go away and discuss this issue and so on. Things are clearly moving quite fast in the reshuffle. I would like to think that she will still be in her post and perhaps will not have been promoted—perhaps she wishes to be promoted—but the essence of this is so important that I think it goes beyond the words of this Minister because in two weeks’ time we could have a very different person actually handling this particular issue.

[Michelle Donelan]

I can see what the Opposition are cleverly trying to do here to push me to go further than my words, but I am sure that the hon. Member will understand that the words that I am using today will be on the record in Hansard for ever more and for any future Ministers in my position or, indeed, me to revisit in a few weeks’ time.

Amendments 60 and 68 seek to extend the concept of academic freedom to students as well as academic staff. There are long-standing reasons why academic freedom for academic staff is considered so important and particularly worthy of protection under article 10 of the European convention on human rights. Academic freedom for academic staff is a long-standing concept that is already used in legislation—including the Higher Education and Research Act 2017—and is understood in the sector. It has also been considered in an international context. An example is the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. As is clear from that recommendation’s title, academic freedom concerns teaching personnel, not students. Strasbourg case law also confirms that, in determining whether speech has an “academic element”, it is necessary to establish whether the speaker can be considered an academic.

Accordingly, the academic freedom provisions in this Bill are relevant only to those who are academic staff. That will include those who are employees of the provider, but also those staff who do not have employee status. That could include staff who undertake teaching or research as part of an honorary appointment for which they are not paid. Similarly, it will mean that PhD students who teach undergraduates at the provider can be considered to be academic staff for that purpose. However, as I have committed to this morning, I will consider this topic once again.

A first-year undergraduate student would not be considered to have the particular protection afforded by academic freedom. But I reiterate that all those on campus, whether a student, a member of staff, members of the provider or visiting speakers, are nevertheless covered by the freedom of speech duties placed on providers. That is made very clear in the Bill. I hope that Committee members will be reassured by what I have said and understand the rationale behind maintaining that the additional layer of protection for academic freedom should be reserved for academic staff, but I will, as I said, consider this.

--- Later in debate ---

[Matt Western]

Briefly, I thank my hon. Friend for her clear and considered speech in support of the amendments, some of which are in my name, given that we were not entirely sure how they would fall over the four days of the Committee.

In the evidence sessions and on Second Reading, we heard just how concerned people are. My hon. Friend the Member for Kingston upon Hull West and Hessle mentioned the evidence given by Sunder Katwala, but I am think too of the moving comments by my hon. Friend the Member for Leeds North West (Alex Sobel) about his experience at Leeds University and the prospect of having the likes of David Irving or Nick Griffin coming on to campus to speak. I will also just pick up on the point made by Professor Whittle:

“If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 39, Q73.]

The amendment seeks to draw a line under the question, what constitutes reprehensible but lawful speech that is inimical to academic freedom? I cannot see any academic benefit to denying any genocide, and it would do great harm to an academic were such views espoused on campus, as well as to the wider academy, let alone damaging student welfare.

[Michelle Donelan]

Amendments 32 to 34 and 69, taken together, seek to exempt providers and student unions from the duty to secure freedom of speech of persons who speak or intend to speak to deny genocide. The Government, however, are clear that genocide denial, including denial of the holocaust, is abhorrent and morally reprehensible. The new director will produce extensive guidance to assist universities, further to the points made by hon. Members. That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights. As such speech is intolerable in a democratic society, and that holocaust denial, even if dressed up as impartial historical research, must be seen—

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

Debate between Matt Western and Michelle Donelan

Wednesday 15th September 2021 Public Bill Committees

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

I beg to move amendment 50, in clause 1, page 1, line 8, leave out from beginning to “must” and insert:

“Every individual and body of persons concerned in the government or management of a registered higher education provider”.

This amendment expands the duty on a governing body of a registered higher education provider to take steps that are reasonably practicable to secure freedom of speech within the law to include any individual or body of persons concerned in the government or management of a registered higher education provider.

I thank you, Sir Christopher, and your co-Chair, Mrs Cummins, for your chairmanship up to this point. I also thank the Clerks for all their work keeping us in order and for putting everything together.

I have not checked the numbers this morning, but it is interesting that some 84 amendments and counting have been tabled. That underlines the fact that many of us, especially Opposition Members, have profound reservations not only about whether the Bill is needed but about its extent and its detail. If it was a dog’s breakfast before, it looks like a bit of a canine meal plan this morning.

Amendment 50 covers a small but important detail. We are here to be constructive and to try to make the best of the Bill, and this is the first example of that. We are seeking to broaden the meaning of the “governance” of an institution. We do not want it to be too narrow, or to simply mean the senate or board of trustees. Recognising the complex nature of modern higher education institutions, we want the term to reflect the wide array of professionals involved in university administration who should be subject to the legal requirement to uphold freedom of speech and academic freedom

It is important that we recognise the diversification of the management of the HE sector. It seems that the Bill’s wording is a carbon copy of the section 43 duty under the Education (No. 2) Act 1986. We have repeatedly heard from the hon. Member for Congleton about the need to develop the 1986 Act to reflect today’s reality, and that is what the amendment seeks to do.

All we are asking is that the legal duty be expanded to include anyone involved in the government or management of a higher education provider, rather than solely the governing body, as is the case in the Bill as drafted. The definition is far too narrow. It is the wording of yesteryear and does not reflect the complex nature and structure of the governance of the universities and higher education institutions of today. Indeed, Professor Stock said in her evidence that, thanks to the consumer dynamic, universities are presenting their best public relations face to prospective students, and that involves a plethora of people behind the scenes, including human resources professionals. Tom Simpson, likewise, in his evidence, stated:

“At the moment, the crucial question is the position of those involved in university leadership and administration.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 71, Q148.]

We wish to be constructive today and in the coming days, and will do our best to try to refine the Bill to make it workable. We do not believe clause 1 is absolutely necessary, but we will do our best to refine it and make it practical. That is what amendment 50 seeks to do.

[The Minister for Universities (Michelle Donelan)]

I, too, thank the Clerks for their work in facilitating this Committee.

Amendment 50 would reinstate the wording currently in section 43(1) of the Education (No. 2) Act 1986, where the freedom of speech duty applies to individuals and bodies involved in a higher education provider’s governance or management. The approach in the Bill, which is to impose the duty on the provider’s governing body, is taken for a number of reasons. A key plank of the Bill is introducing new enforcement measures, including a new Office for Students complaints scheme and a statutory tort. In the light of the potential for tortious liability, it would not be appropriate for the duties to apply to any individual in that management. It should be the provider that is held responsible by the OfS or the courts. Of course, the provider will generally be liable for the acts of its staff in any event, so the change in emphasis will not necessarily make any difference on the ground. The provider will require its staff to act in accordance with the duty, as it will be held liable for their conduct. This approach mirrors other statutory duties imposed on the governing bodies of higher education providers, for example under the Equality Act 2010. It therefore makes sense for the same body to be responsible for all relevant duties under consideration.

I hope that reassures the Committee that the amendment is not needed. The Bill ensures that responsibility for the freedom of speech duties will lie with higher education providers, and and that where they are found to be in breach of those duties, they can be held to account.

[Matt Western]

I hear what the Minister says, but the amendment is not aimed at every individual in a higher education institution. It is specifically about every individual and body of persons concerned in the government or management of a registered higher education provider. The crucial point is that it absolutely is about those involved in the governance and wider management of the institution, not every individual within that university or higher education institution. I stand by the amendment and wish to push it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Michelle Donelan]

The director and the OfS will be publishing their own guidance, and it would not be appropriate for me to pre-empt that. I would, however, expect there to be a reference to academic freedom within that guidance. I hope the Committee is reassured that the Bill strikes the right balance.

[Matt Western]

I thank my colleagues for their contributions, which flesh out these points. As my right hon. Friend the Member for Hayes and Harlington said, we have approached this Committee in a spirit of co-operation and constructive thought, to try and improve the Bill. As my hon. Friend the Member for Kingston upon Hull West and Hessle said, there was a surprising, perhaps staggering, consensus from the witnesses about the need to clarify the importance of academic freedom, from whichever side we sit on. The Minister may be right that academic freedom technically falls within freedom of speech, but this is a higher education Bill—legislation about higher education—so surely the emphasis must be on how freedom of speech relates to higher education. I urge us as a Committee to stress the importance of academic freedom in the Bill and give real emphasis to it.

--- Later in debate ---

[Matt Western]

I echo the comments of colleagues, who have made the case so well. We have profound concerns about the amendment, I am afraid. We understand what it is trying to do, but it could be very broad if accepted as it is. On Second Reading, the Secretary of State made it crystal clear 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”.—[Official Report, 12 July 2021; Vol. 699, c. 49.]

The amendment could strip out that safeguard of harassment protection. The Minister, too, stressed the point on Second Reading. She said:

“To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination.”—[Official Report, 12 July 2021; Vol. 699, c. 120.]

We should be very careful about the existing duties, and we need to ensure that they are protected in future as well. That could be a real problem for us, if the Bill is amended.

Professor Stephen 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. For example, if somebody is speaking and they are antisemitic, unless it directly relates to that person, unless they have some sort of standing, the Equality Act cannot protect them as such.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43-44, Q80.]

The Equality Act is already a fairly flimsy tool for interfering with freedom of speech, so I really want to know why the amendment should so brutally cut the legs from under the Act’s harassment provisions. Even Bryn Harris commented:

“I accept that getting into the Equality Act is very controversial and tricky terrain”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]

I fear the Government’s approach is a bit of a sledgehammer to crack a nut. The concern is about a fundamental change to the Equality Act. As the right hon. Member for South Holland and The Deepings said, universities are trying to do, or should do, the right thing. That is what has always been sought. In one evidence session, Professor Grant referred to the Chicago principles, under which a university can restrict expression that violates the law, that falsely defames a specific individual, or that constitutes a genuine threat or harassment. The amendment would be counter to those principles, which is why we will oppose it.

[Michelle Donelan]

Amendment 71 seeks to override the law on harassment so that higher education providers would be required to take reasonably practicable steps to secure freedom of speech in scientific or academic discussions, even where that would constitute harassment under the Equality Act 2010. Freedom of speech, which generates rigorous debate and advances understanding, is vital. To uphold freedom of speech in higher education, students, staff and members must be able to express their ideas within the law that may be controversial, unpalatable or even deeply offensive. That is how students develop the ability to think critically, to challenge extremist narratives and to put forward new and controversial ideas.

As is the case now, providers must consider each case on its own facts, and work collaboratively with those involved to ensure that there is an appropriate balance across the range of relevant duties, including in relation to equality protections. 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 rights of freedom of expression, as set out in article 10, and academic freedom. Guidance has made it clear that the harassment provision within the Equality Act cannot be used to undermine academic freedom. I expect that that will be reiterated in the new Office for Students guidance.

Students’ learning experience may include exposure to course material, discussion or speakers’ views that they find offensive or unacceptable. That is very unlikely to be considered harassment under the Equality Act. Also, if the subject matter of a talk is clear from the material promoting an event, people who attend are very unlikely to succeed in a claim for harassment arising from views expressed by the speaker. At the same time, if speech does constitute harassment, it should not be tolerated, even in the context of academic discussion in higher education. Any form of harassment is abhorrent and unacceptable anywhere in our society, including in universities. It is vital that the Bill makes clear that it protects only lawful free speech. Although I hugely respect my right hon. Friend the Member for South Holland and The Deepings—as, it seems, does the Committee—I must ask the Committee to agree that the amendment is unnecessary. The Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom.

--- Later in debate ---

[Michelle Donelan]

Importantly, they will be covered by the overarching protections in relation to freedom of speech when they speak at other institutions. As for members, they are specifically covered under proposed new part A1(2). Strasbourg case law has confirmed that, in determining whether speech has an academic element, it is necessary to establish whether the speaker can be considered an academic. To the extent that a member of a university could also come within the category of academic staff will be a question of fact. Quite simply, if they are covered they will have academic freedom as defined in the Bill. I hope that reassures members of the Committee that these amendments are not needed, as the members and types of academics mentioned can already be assured that they will be protected under the Bill.

[Matt Western]

I am reassured by what the Minister says. It seems there is coverage for visiting academic speakers. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That the debate be now adjourned.—(Michael Tomlinson.)

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

Debate between Matt Western and Michelle Donelan

Monday 13th September 2021 Public Bill Committees

[Matt Western]

[The Minister for Universities (Michelle Donelan)]

--- Later in debate ---

[Matt Western]

[Michelle Donelan]

--- Later in debate ---

[Matt Western]

[Michelle Donelan]

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

Debate between Matt Western and Michelle Donelan

Monday 13th September 2021 Public Bill Committees

[Matt Western]

Q Finally, other legislation is quite clear in how it addresses and balances competing freedoms, but there is seemingly no such balance in this legislation. Can you expand on the importance of balancing competing freedoms on campus, particularly in a higher education setting?

Danny Stone: I learnt a lot about the balancing of freedoms from a guy called Ray Hill. He was a far-right mole who talked to me about the importance of not always shutting down debate. His experience of working with young people, particularly on the far right, was that opportunities to ask difficult questions and raise difficult issues should not be shut down. Equally, he acknowledged the harms caused by some people who express particular views in harmful ways.

This has been addressed in the higher education sector. Malcolm Grant did a report in 2010 in which he talked about trying to promote freedom of speech while understanding its limits. He said that universities need to balance the competing interests and might reach

“different but equally legitimate conclusions about the same matters.”

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, per the Online Safety Bill, the Joint Committee on which I appeared before the other day. Recognition of the complexities and the competing freedoms would be welcome.

[Michelle Donelan]

Q Danny, you have previously raised concerns about a lack of consistency in the duties on higher education providers, in that they do not apply to student unions—something that this Bill would correct. Do you think that it is important that we do that?

Danny Stone: In terms of student unions? Absolutely. Again, if we are talking about complexities, there was a move to essentially prohibit the Jewish society at the University of Essex from becoming a society. That was unacceptable, and I believe it was reversed in the end. Similarly, there have been moves in the past to ban Jewish societies, and I was involved in campaigning against a motion at the University of Manchester that essentially would have done that.

On the flip side, there are front groups such as Hizb ut-Tahrir, which is not a proscribed organisation, that will seek to set up on campus, and there are far-right organisations that will seek to set up student societies on campus. That presents me with real concern. Could they potentially appeal and try to get money and find a route through? Yes, they might. There is a complexity in this which I would like to see recognised in the Bill. I would like to see something about the competing freedoms that exist.

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

Debate between Matt Western and Michelle Donelan

Monday 13th September 2021 Public Bill Committees

[Matt Western]

Yes.

Professor Kaufmann: I never endorsed any Government action on critical race theory in universities—only in schools where the teaching is compulsory and you have to pass the element. In a university, it absolutely should be taught; people are free to take it and to teach it. It is a different thing: you are dealing with adults. In a school where every pupil has to be taught critical race theory, we have a compelled speech issue, a freedom of conscience issue.

I think critical race theory is a conspiracy theory. I am quite open about that. However, there is high critical race theory, which is interesting, is worth teaching and has some insights. The vulgar critical race theory that is appearing in schools and some diversity training, where they separate pupils by race and say that some are oppressors and some are oppressed, is nonsense. However, in a university classroom, people are free to take what they want and teach what they want. In schools, where we are not dealing with adults and it is compulsory, there is a freedom of conscience issue. I make that distinction very clearly.

[The Minister for Universities (Michelle Donelan)]

Q Thank you both for coming in. Professor Kaufmann, in the Policy Exchange paper you co-authored you recommended a statutory tort. I wanted to ask you why you think that that is so important, and how you think it will work in conjunction with the Office for Students complaints scheme.

Professor Kaufmann: It is important for academics who might find themselves in a situation in which they are disciplined for speech to have recourse against their institution if that institution is not upholding their rights to freedom of speech. The point of the statutory tort is simply to allow an avenue for those with grievances that cannot be met within their institutions. Very often, I am sad to say, many institutions are not doing a successful job of upholding this right for many academics —hence the need for recourse to the court system.

--- Later in debate ---

[Matt Western]

Q You heard the previous session. There was a lot of talk from the previous two witnesses about self-censoring and so on. Do you share those concerns, or do you think, as I was perhaps suggesting, that we all self-censor to a certain extent? As we heard from a witness last week, that is just the way of the world—you get on with it and you make your case.

Sunder Katwala: The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.

[Michelle Donelan]

Q Your recent research suggests that more divisive voices and controversial issues are often amplified online. Do you agree that that influences how freely the majority of people feel able to express themselves?

Sunder Katwala: On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.

A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.

What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.

--- Later in debate ---

[Matt Western]

Q Have you had any conversations with the current chair or the DFE about what the scale of the department—it will not be just one individual; it will be the director of freedom of speech plus X people working within the department—will be, what the cost will be and how that will be funded? Would the OfS need an additional budget?

Secondly, do you have concerns about what will happen for universities and student unions? One of the points that came out from the BEIS report, which you may have seen, is what significant costs there will be for universities and student unions, which clearly, after the past 18 months, are really struggling financially anyway.

Nicola Dandridge: It is very difficult at this stage to predict what the pressures on the Office for Students will be as a consequence of the proposals, but certainly the complaints system is likely to generate quite a lot of work. It is really important that we have the capacity to deal with that properly without compromising our important work on quality and standards, and access and participation. This is an area that we will be keen to discuss with Government to ensure that we are properly resourced to do this work well in all its complexity, without compromising our other work.

[Michelle Donelan]

Q Thank you for attending, Ms Dandridge. When considering the impact that the new director could have, we can look at the impact that the director for fair access and participation has had. Could you outline the positive impact that you think having somebody solely responsible for that area has had?

Nicola Dandridge: In my view, and I think the view of many others, the role of the director for fair access and participation has been really significant in setting expectations, driving through the importance of what is also a very complex agenda, engaging in discussions with universities, students and student unions, and speaking publicly about the importance of access and participation. I think the impact that the director has had has been really significant, and it is a good analogy for the impact that we hope the director for freedom of speech and academic freedom will have similarly.

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

Debate between Matt Western and Michelle Donelan

Monday 13th September 2021 Public Bill Committees

[Matt Western]

[Michelle Donelan]

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

Debate between Matt Western and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Matt Western]

[Michelle Donelan]

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

Debate between Matt Western and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Michelle Donelan]

Q But it would not be the route available for academics and visiting speakers.

One last question. I was interested to know your views on the new duty to promote the importance of free speech and whether you feel that would shift culture on campus.

Smita Jamdar: That is probably the best part of the Bill as far as I am concerned. Ultimately, the way we will address the concerns around freedom of speech is very unlikely to be through litigation or regulatory intervention because it is a cultural point. Many universities that we have worked with are already keen to promote freedom of speech. If they have a statutory duty to do so, I am sure it will help to some extent. For me, the central question will be the definitional problem of what is the mischief that we are trying to address because it is very wide-ranging.

A duty to promote free speech would not necessarily in my view get over things like people feeling nervous about expressing views that they think are unpopular, because you are not necessarily worried there about somebody taking formal action against you; you are worried about how your peers might react to you. In reality, we cannot legislate out the fact that people will naturally react to views. It is part of how we all communicate with each other.

I think the duty is a good thing. It is the best part of the Bill as far as I am concerned because it is the one most likely to achieve what everybody wants to achieve. But we do have that definitional problem—some of this stuff is just human nature, and I am not sure that you can legislate or promote that out of existence.

[Matt Western]

Q To come back to my opening question about unintended consequences, what we have heard a lot from various people and prior to these sessions is about the uncertainty and the real fear out there that employment contracts may get shortened and the insecurity of tenure in employment at universities will become greater. In your professional view, Ms Jamdar, is there any risk that the tort could be used to circumvent employment law?

Smita Jamdar: I am not sure I follow in what way the statutory tort would circumvent employment law remedies. What I can see is that if you present any institution that has a duty to safeguard its resources, to manage them effectively, to deliver them in most cases for a charitable objective—education and research—with a risk that they could be sued at any time, they are going to look for ways of minimising that risk before it happens. It is too late once you are already in court. There are all sorts of challenges to getting yourself out of court very quickly.

The concern would be that governing bodies, who are rightly there to try to make sure that the assets are used for the proper purpose and not diverted to unnecessary litigation, take steps to introduce preventative measures. I hesitate to use this phrase because I know it has been used a lot already in this discussion, but it creates another sort of chilling effect, which is risk aversion on the part of institutions, who say, “Actually, I need to manage this risk and therefore I am going to take whatever steps I need upfront to reduce the likelihood of someone challenging me.”

I am talking on behalf of universities because they are my client base, but if you looked at student unions and particularly the fact that they may not have as many resources to start with, they too may start to feel that they need to find ways of reducing the opportunity for problems to arise, rather than doing what I think we would all prefer them to do—create an environment where lots of conversations are happening and lots of debate and discussion is taking place.

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

Debate between Matt Western and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Matt Western]

Q Can I come back to Sir Trevor? In November 2020, Sir Trevor, you wrote of a “dark edge of censoriousness” emerging. I think that was in an article that appeared in The Times. You will be aware of this creeping sense of Government interference in, say, the appointment of members to boards of trustees of museums and appointments to universities and elsewhere. Do you think that more oversight of the sector through the director will not be merely the inverse of the edge of censoriousness but will actually favour the Government?

Trevor Phillips: No more so than in any other Administration. By the way, there may be a sound problem, but I think you called me “Sir Trevor”. Her Majesty has not made that mistake; that would be a major error. The creeping edge of censoriousness is, to be honest, rather little to do with Government. There is often confusion about the word “independent”, particularly in higher education. People tend to use the word “independent” when they actually mean opposition to Government.

I do not think there is any danger of the higher education sector as a whole developing a culture of deference to the existing Government. My reference to the creeping edge of censoriousness was far more in relation to peer pressure and the emergence of self-censorship. We have noticed something at Index. Over the past couple of years we have run a campaign to try to increase the resilience of students in being able to express their opinions. We have run some training courses and so on. We do not think that the real big problem here is that everybody is looking over their shoulder and saying to themselves, “What does the Secretary of State for Education or Secretary of State for Culture think about what I am about to say in a seminar?” They are more concerned, if they are students, about whether an unfashionable or “unorthodox” view may get them marked down in exams. If they are junior academics, I think they are more concerned about whether their professors, who have no qualms about expressing their political views, may decide that the next time there is an opportunity for preferment, their views make them less likely to be favoured than someone else. My view about the issue of censoriousness is that it is far more a question of self-censorship. What we are concerned about, I guess, in relation to the legislation is that you can do quite a lot with law, but you need to support it with a clear cultural programme that supports, advocates and promotes diversity of opinion within the institutions.

[Michelle Donelan]

Q My first question is to Trevor. You have spoken in the past about the erosion of free speech. How exactly do you think that the Bill will tackle that?

Trevor Phillips: It is a short Bill, which perhaps begins to close some gaps. Simply, the process of debating it will help to highlight some of the issues about which we are concerned, but the central proposition, which is that there should be some regulatory apparatus and guidance, is valuable. We think that it is important that there is not a wild west here. To be completely honest, my own view is that if the university authorities had been doing their jobs properly, behaved like grown-ups and taken responsibility for what is happening on campuses, this would not be necessary.

However, what in the last three to five years we have seen example after example of where university authorities have essentially abdicated their responsibility to protect their own academics and students. That is why the Bill appears to have value. Because the university authorities are not doing their jobs, the Government have felt it necessary to step in. That does not mean that I think that everything that is being proposed is absolutely on the money, but I can see why it is felt necessary to do something of this kind.

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

Debate between Matt Western and Michelle Donelan

Tuesday 7th September 2021 Public Bill Committees

[Michelle Donelan]

[Matt Western]

Oral Answers to Questions

Debate between Matt Western and Michelle Donelan

Monday 21st June 2021 Commons Chamber

[Michelle Donelan]

Despite the hon. Member’s claims, the strategic priorities grant accounts for approximately only 0.05% of higher education providers’ total income. The House should be under no illusion that this Government 100% support the arts, which is why we asked the OFS to invest an additional £10 million in our world-leading specialist providers, many of which specialise in arts provision, and why we have spent £2 billion through the cultural recovery programme, plus furlough and plus VAT and other reliefs—more than any other country.

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

Research by the British Academy has shown that of the 10 fastest growing sectors in the UK economy, eight employ more graduates from the arts, humanities and social sciences than the other disciplines, and MillionPlus states that

“there is an economic imperative to invest in creative arts education…job creation is double the rate of the rest of the economy.”

Just take media studies, which the Government state is not a strategic priority, despite our making some of the best films, TV, theatre and advertising in the world. Last year the UK saw inward investment in co-production spend in film and TV account for 83% of the entire production spend, underlining our global reputation. The Government seem to be unaware that this country is a globally renowned creative powerhouse. Can I just urge the Government to get into SHAPE—social sciences, humanities and the arts for people and the economy? Will the Minister accept that the benefit that this nation derives from university education cannot be measured solely in terms of its immediate economic impact?

University Students: Compensation for Lost Teaching and Rent

Debate between Matt Western and Michelle Donelan

Thursday 15th April 2021 Commons Chamber

[Michelle Donelan]

I agree with my right hon. Friend; I am appalled by the decision of some universities to drop literacy standards in assessments—that is misguided and it is dumbing down standards. That will never help disadvantaged students. Instead, the answer is to lift up standards and provide high-quality education. I assure him that we will act on this, in line with our manifesto commitments on quality.

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

Last week, there was an exam-room silence from the Government on when universities would return, with students, their families and university staff learning from newspapers what was only announced to this House days later: that many students would not return to campus until 17 May. Why has this announcement come so late, and why was it briefed to the newspapers instead of being announced to those affected? Does the Minister not see that this is deeply disrespectful to the students and staff alike? For weeks, we have had students studying technical and creative subjects safely, thanks to the incredible work of universities and staff, and for many weeks students have been back in further education settings, so will the Minister explain why further and higher education settings have been treated so differently? Her written statement ignored the work of universities and the existing situation in colleges, and offered no evidence to support this approach. So will she tell us what the scientific basis was for this decision, and will she commit to publishing this advice today, so that she is at least forthcoming with students and the sector?

The Minister announced a further £15 million this year for hardship funding. Further support is clearly needed, but, once again, the Government are simply not working to the scale of the challenge. The funding offered to students in England is far smaller than that offered by the Labour Government in Wales. Will the Minister tell us why her Government believe that students in England need so much less than those elsewhere? At every stage of this pandemic, children, young people and students have been an afterthought for this Government, let down time and again. Will the Minister finally admit that these young people have been failed and tell the House what she will do to address it?

[Michelle Donelan]

I agree with the hon. Gentleman that it has been an extremely challenging and disruptive year for students, and I assure him that students have never been and will never be an afterthought for this Government. In fact, this week we made a statement regarding the details of the plan for the remainder of students returning. We conducted a review over the Easter holidays, as we had publicly announced we would do, and we wanted to maximise the amount of time we had to review the data. The announcement made on 5 April was regarding the things that would open up in step 2.

On further education and schools, the difference is that these youngsters do not go and form new households, nor do they travel across the country. On the data we have reviewed, we have considered the latest epidemiology data, alongside public health, economic, educational and other implications of the return. A wealth of data, papers and evidence is and will continue to be published.