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

Michelle Donelan Excerpts

Monday 20th September 2021 Public Bill Committees

[Mr Richard Holden (North West Durham) (Con)]

I am vice-chair of the all-party parliamentary group for friends of Durham University

Clause 3

Civil claims

Amendment made: 4, in clause 3, page 5, line 21, at end insert—

“(aa) a constituent institution of a registered higher education provider, in respect of a breach by the governing body of the institution of any of its duties under section A1, or”. —(Michelle Donelan.)

This amendment is consequential on NC1.

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

[The Minister for Universities (Michelle Donelan)]

Clauses 1 and 2 strengthen freedom of speech duties on registered higher education providers and extend them to students unions at approved fee cap providers. Clause 3 plugs an identifiable and substantive gap in the current legislative framework by providing individuals with a route of redress for loss suffered as a result of a breach of these freedom of speech duties. Clause 3 therefore creates a new statutory tort. This enables civil proceedings to be brought against a higher education provider in respect of a breach of the new duties under section A1 of the Higher Education and Research Act 2017, or against a student union in respect of a breach of the section A4 duty.

Individuals can still complain in the first instance—for free—to their higher education provider or student union if they consider that there has been such a breach. They can subsequently complain for free to the new complaints scheme that will be operated by the Office for Students, and students will still be able to complain for free about their provider to the Office of the Independent Adjudicator for Higher Education. However, the statutory tort will also be available, although we are clear that it is intended to be a route of last resort.

[Lloyd Russell-Moyle]

If that is to be a last resort, as the Minister claims—I take her at her word on that, because she is an hon. Member—someone could as a first step go to the courts. Will she ensure that they can do that only if they have exhausted all the other opportunities?

[Michelle Donelan]

I thank the hon. Gentleman for his comment. The problem is that if someone is a visiting speaker at a university, there would be no internal process that they could follow. We want to be as comprehensive as possible and allow this option to be available.

[Lloyd Russell-Moyle]

Will the Minister give way?

[Michelle Donelan]

I will make some progress and then give way.

As individuals will be able to seek redress for free via the OfS or the Office of the Independent Adjudicator, we expect individuals to make a complaint to the OfS or the OIA before relying on the tort.

[Emma Hardy]

I thank the right hon. Lady for giving way.

I refer the Minister to the Office for the Independent Adjudicator’s written evidence, where it said:

“It is generally accepted that it is not good practice to have multiple routes of ADR redress for the resolution of a complaint because it can make the landscape difficult to navigate and make it harder for individuals to make the right choice for them—particularly if they are vulnerable.”

I wonder how the OIA’s concerns can be satisfied by the clause the Minister is moving?

[Michelle Donelan]

I thank the hon. Member for their comments. It is a good point that students, academics and visiting speakers all need to know the routes available to them. That will be a fundamental part of the new director’s job; I fully anticipate that they will not only set out comprehensive guidance, but communicate with all the different individuals so that they know the options available.

[Emma Hardy]

Going back to the evidence, one of the points made by the OIA is that

“if a student isn’t fully informed or does not understand”—

bearing in mind its previous point about vulnerable students—

“all the consequences of their choice, the decision they make may not be the most beneficial for their particular circumstances.”

The evidence points out that people rarely make a complaint relating just to freedom of speech; rather, it often involves many other different aspects, which the director of freedom of speech would not be able to address. This is a highly complex and difficult procedure for an individual student to be able to understand and navigate, and I am not sure that written guidance from the Office for Students would fully address that.

[Michelle Donelan]

One thing we must be clear on is that the current system is not working. It is failing individuals who are having their freedom of speech breached, as we also heard from multiple sources in the evidence. At the heart of this Bill is unlocking a greater choice for individuals, whether that is going down the OIA route or the one-stop shop of the director who will be responsible for free speech and academic freedom. While it is true that at the moment not many cases that are brought forward are purely to do with freedom of speech, I argue that that is because we need this Bill in place and the new director in their position.

Given that individuals may not want to incur the legal costs and risks associated with bringing a claim before the courts, we do not expect this provision to give rise to many claims. It will operate more as a backstop for complainants, to cover claims by individuals who may feel they have no other recourse.

[Lloyd Russell-Moyle]

Will the Minister give way?

[Michelle Donelan]

I will, but we are going to have to let me do more than two lines at a time or we will never get through the Bill.

[Lloyd Russell-Moyle]

I am grateful to the Minister. She talks about last resort, and in response to my last intervention she said that that could not be put in legislation because external speakers will need it. Is she therefore saying that external speakers have no form of redress apart from the tort—that they do not have access to the other forms of redress?

[Michelle Donelan]

To clarify my comments, I believed that the hon. Member was talking about going through internal processes before addressing the tort.

[Lloyd Russell-Moyle]

I meant all processes.

[Michelle Donelan]

There will be a variety of options available. Going to the director will be the free option and the first instance, but we cannot mandate that they have to have gone through the internal processes of an institution, because those will not be available to everybody that the Bill seeks to represent.

For example, this clause will provide a means of redress for individuals who do not have employment protections, such as visiting fellows—the point I was making earlier. Let us bear in mind that the purpose of the tort is to bolster the enforcement of the new freedom of speech duties on higher education providers and student unions, so that there are clear consequences for those who breach those duties.

The clause will ensure a clear route to individual redress for all who have suffered loss where freedom of speech duties have been breached, and will give those duties real teeth. This is therefore a vital part of the Bill, as part of a suite of measures to strengthen free speech in higher education.

[John McDonnell]

Will the Minister give way?

[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.

--- Later in debate ---

I come back to the point made by my hon. Friend the Member for Brighton, Kemptown: these institutions are not one size fits all. There are some very small organisations that will find having to do this every year burdensome. I accept that the right hon. Member for South Holland and The Deepings has moved from where he was last week in terms of wanting it on a more regular basis, but there will be huge burdens. It would be unfortunate to tie up academic time and money in compiling lists that I am not sure will be the top thing that students will look at when they decide which academic institution to go to.

[Michelle Donelan]

As discussed, the amendment seeks to introduce a requirement on the Office for Students to publish an annual report that would assess and rank higher education providers on their compliance with their freedom of speech duties. Schedule 1 to the Higher Education and Research Act 2017 sets out existing reporting requirements placed on the OfS. Paragraph 13 of that schedule requires it to prepare a report on the performance of its functions during each financial year. That annual report already summarises the regulatory activity of the OfS as undertaken in that year. Following the Bill, that report will be able to include the regulatory work that the OfS has undertaken in relation to the new registration condition on freedom of speech and academic freedom, as well as information on the operation of the new complaints scheme.

In that context, proposed new section 69A in clause 4(2) of the Bill also provides that the Secretary of State may, by direction, require the OfS to report on specific freedom of speech and academic freedom matters in its annual report, or in a special report. Both those reports must be laid before Parliament, so they will be subject to scrutiny and can be considered by the sector itself. Members should be aware that another provision of the Bill—paragraph 12 of proposed new schedule 6A in clause 7(2)—requires the OfS to conduct a review of the complaints scheme or its operation and to report the results to the Secretary of State at the Secretary of State’s request. To impose further reporting, as required by the amendment, could be overly bureaucratic. However, as previously discussed, I am happy to reconsider the reporting requirements. I hope that that will satisfy my right hon. Friend the Member for South Holland and The Deepings. I will take the matter away and continue to consider it.

[Sir John Hayes]

The Minister is becoming increasingly characterised by her willingness to listen, and that is the mark of any good member of the Government. All people who have been Ministers know that Bills improve through scrutiny—I am thinking of the right hon. Member for North Durham, and I am looking around for others. The right hon. Member for Hayes and Harlington was an aspirant Minister—an aspirant Chancellor, indeed. Governments that listen usually end up with better legislation, so it is of great credit to the Minister that she is listening to the scrutiny and responding with the tone that she is.

The hon. Member for Warwick and Leamington said that freedom is hard to quantify and that the measures in the Bill will be hard to measure. Freedom is like happiness. Neither is absolute, both are hard to define, but the pain of the absence of either is keenly felt and better cured. That is what the Bill tries to begin to do. I am anxious that it has the effect that the Government desire, and keen that we produce some means by which we measure that effect. The amendment may not be the ideal way of doing so, but I am grateful for the comments that have been made from across the Committee recognising that my attempt is to make the Bill as consistent in its application as possible, and as clear to those who will have to work with it.

On the basis of the Minister’s welcome willingness to listen and respond subsequently, and with one final caveat, I am minded to withdraw the amendment. The caveat is on my point about universities being obliged to report to the new director in those instances where there are matters of contention, such as changes to the curriculum, courses that are not run, or events that are stopped in some way. I have no doubt that that might form an amendment when this matter comes to the other place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)