Higher Education (Freedom of Speech) Bill

Michelle Donelan Excerpts

Report stage
Monday 13th June 2022 Commons Chamber

[The Minister for Higher and Further Education (Michelle Donelan)]

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

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 1— Duty to disclose overseas gifts and contracts affecting freedom of speech—

‘In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

“(2) Whenever a registered higher education provider, or any of its members, employees, departments or associated bodies, enters into a disclosable arrangement with an overseas counterparty, its governing body shall, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about such arrangement to the OfS and the Secretary of State.

(3) By 30 April each year, the OfS shall publish on its website a searchable report which contains all required information which has been disclosed to it pursuant to subsection (2) above in the preceding year.

(4) If the governing body of a registered higher education reasonably believes that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, it may notify the OfS and will provide such information as the OfS may require to investigate such risk(s).

(5) If, following a report under subsection (4) above and such investigation as it considers appropriate in the circumstances, the OfS finds that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, then it may redact such information from its report.

(6) By 30 April 2023, the governing body of each registered higher education provider shall report to the OfS and the Secretary of State the required information of any disclosable arrangement which it, or any of its members, employees, departments or associated bodies, entered into during the ten years prior to this section coming into force, and the OfS shall publish such information on its website in a searchable report by 30 April 2024.

(7) If the registered higher education provider fails to comply with this duty, the OfS may enforce compliance in civil proceedings for an injunction.

(8) In this Part—

(a) “associated bodies” means any company, institution, trust, organisation or similar body or group in respect of which the relevant registered higher education provider has significant control or ultimate beneficial interest;

(b) “disclosable arrangement” means any formal or informal contract, gift or other arrangement by which a financial or other advantage is offered, promised or given to a registered higher education provider or any person or body mentioned in subsection (2) above, whether conditionally or unconditionally, which is equal to or exceeds £50,000 (or would equal or exceed such value in combination with other potentially disclosable arrangements entered into with the same overseas counterparty, or connected overseas counterparties, within the previous twelve months);

(c) “overseas counterparty” means—

(i) any natural person who holds citizenship of, or is domiciled in, any country or territory outside the United Kingdom (or any subdivision of such a country or territory);

(ii) any government, organisation, institution, company, foundation, legal person, trust, or similar body or group which is registered, incorporated, headquartered or carries out significant activities in any country or territory outside the United Kingdom (or any subdivision of such a country or territory) or in respect of which ultimate beneficial ownership or significant control resides in a person falling within subsection (c)(i) above; or

(iii) any person acting in any capacity for or on behalf of any person who would fall within subsection (c)(i) or (c)(ii) above if they were acting on their own account;

(d) “required information” means—

(i) the exact value of the relevant disclosable arrangement(s);

(ii) the identity of the overseas counterparty and the name of any relevant country or territory (and, if relevant, such information about the person(s) for whom they are acting or in whom ultimate beneficial ownership or significant control resides);

(iii) the date on which the relevant disclosable arrangement(s) was entered into;

(iv) details on the general purpose of the relevant disclosable arrangement(s); and

(v) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to any curricula, governance or control of them).””

This new clause seeks to introduce transparency and public reporting of foreign donations to universities, in order to promote freedom of speech and academic freedom, and increase public confidence in universities.

New clause 3—Duties regarding language and cultural programmes—

In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

‘(2) Whenever a registered higher education provider enters into partnership with an overseas organisation to deliver foreign language, culture or exchange programmes or courses, its governing body must, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about the partnership to the OfS and the Secretary of State.

(3) In response to the information received under subsection (2), and where there are concerns regarding the effect of the partnership on freedom of speech and academic freedom, the Secretary of State may issue a direction to the registered higher education provider.

(4) A direction under subsection (3) may be either to—

(a) terminate the partnership, or

(b) offer an equivalent range of programmes or courses delivered in partnership with an alternative organisation.

(5) In this Part, “required information” means—

(a) the financial value of the partnership;

(b) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to curricula, governance or control of them).”

New clause 4—Appointment of the Director for Freedom of Speech and Academic Freedom—

‘(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

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

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

New clause 5—Sunset clause—

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

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

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

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

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

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

New clause 6—Academic staff: interpretation—

‘(1) Section 121 of the Higher Education and Research Act 2017 is amended as follows.

(2) After “Act—” insert—

“academic staff, for the purposes of any provision inserted by the Higher Education (Freedom of Speech) Act 2022, includes any academic staff (however engaged or employed), honorary, visiting and emeritus academic members of a provider and any other person held out as holding any academic position at the provider;””

New clause 7—Harassment—

In section 26 of the Equality Act 2010, after subsection (4)(c) insert—

“(d) when A is a student or a member of the academic staff of a registered higher education provider and the conduct took place in the context of a discussion in a higher education setting—

(i) the importance of freedom of speech and academic freedom, as provided for under Part A1 of the Higher Education and Research Act 2017 (as inserted by section 1 of the Higher Education (Freedom of Speech) Act 2022), and

(ii) whether A intended to harass B, or was reckless as to whether A’s conduct constituted harassment towards B.”

Amendment 21, in clause 1, page 2, line 2, at end insert—

“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided that—

(a) the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting, and

(b) the person engaging in such conduct did not know or could reasonably not have known that it would have the effect of harassment.”

Amendment 19, in clause 1, page 2, line 6, at end insert—

“(4A) The objective in subsection (2) includes securing that no person listed in paragraphs (a) to (d) of subsection (2) is deprived of an ability to speak freely as a result of a non-disclosure agreement or confidentiality agreement between that person and the governing body of the registered higher education provider.

(4B) The provision in subsection (4A) does not prevent the use of a non-disclosure agreement in any case where the governing body and academic staff member agree that a non-disclosure agreement or confidentiality agreement is necessary for the protection of intellectual property.”

This amendment would ensure that non-disclosure agreements or confidentiality agreements between those listed on the Bill and a higher education providers does not inhibit the freedom of speech for those concerned, save where it is agreed to protect intellectual property.

Government amendment 1.

Amendment 17, in clause 1, page 2, line 14, at end insert—

“(c) to conduct research,

(d) to engage in intellectual inquiry and contribute to public debate,

(e) to criticise any institution,

(f) to be affiliated to any institution, and

(g) to be a member of a trade union body,”

This amendment would widen the definition of academic freedom.

Government amendments 2 and 3.

Amendment 20, in clause 1, page 2, line 32, after “views” insert “or to share experiences”.

This amendment is consequential on Amendment 19.

Government amendments 4 to 10.

Amendment 18, in clause 8, page 9, line 32, at end insert—

“(3A) In reaching a decision as to the extent to which a free speech complaint is justified, the OfS must be mindful of the following—

(a) the right of students to feel safe on university campuses, and

(b) other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equality Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”

This amendment would ensure other competing freedoms as found in the Equality Act and the Counter-Terrorism Act and Security Act 2015 are considered in relation to complaints lodged under the Free Speech Complaints Scheme

Government amendments 11 to 16.

[Michelle Donelan]

I thank all Members for their important contributions throughout the Bill’s consideration. More than two thirds of the world’s population live in countries where academic freedom is severely limited. For decades, people have travelled across the globe to study in the UK because we are one of the few nations in which free, fair and lawful speech at university is truly valued. It is no coincidence that the most academically free countries in the world are also the most socially progressive, the most democratic, the most peaceful and, of course, the most prosperous.

Free speech is as fundamental to what academics and students do on university campuses as it is to what we do in the House. However, as we saw on Second Reading, the Opposition chose to deny that there is a problem at all, despite overwhelming evidence to the contrary. In fact, since we last debated the Bill, the UK has become the only country in the top tier of academically free countries to be significantly downgraded by the academic freedom index. A report published by the Varieties of Democracy Institute determined that despite the UK’s status as a historic bastion of academic freedom and scientific excellence, not only is academic freedom in the UK declining but that decline appears to be accelerating.

[Sir Edward Leigh (Gainsborough) (Con)]

The Alliance of Pro-Life Students says that more than 70% of pro-life students face situations in seminars or lectures where they feel unable to speak openly, and one in three students surveyed had seen events cancelled due to the no-platforming of pro-life students and speakers. Will the Minister make it absolutely clear that whatever people’s views on pro-life issues, those who take that stance have a right to be heard in our universities?

[Michelle Donelan]

I wholeheartedly agree with my right hon. Friend. Of course, they deserve and have a right to be able to air their views and debate that subject.

In oral evidence, Dr Arif Ahmed spoke about how his fellow academics told him that they supported his campaign for free speech but were concerned that their careers would be impacted if they aired that publicly. We also heard from Professor Kathleen Stock, who has been the subject of the most grotesque and sustained campaign of threats and abuse, which compelled her to resign. Is it therefore any wonder that, in 2019, a King’s College London survey found that, chillingly, one in four students believed that physical violence was justified to shut down views that they deemed to be hateful?

The following year, a report by Policy Exchange found widespread self-censorship among university staff, but students and staff did not need to wait for those damning studies or for oral evidence to be published to know that there was a problem. The students forced to self-censor know that there is a problem. The academics bullied off campus, excluded by colleagues or forced to censor their lectures know that there is a problem. Legitimate organisations, speakers and guests who have been no-platformed or physically and verbally abused on campus know that there is a problem. It is just the Opposition who have their heads in the sand.

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[Alicia Kearns (Rutland and Melton) (Con)]

Will the Minister confirm that the Secretary of State will maintain the ability to direct the director to further inquiry, should he have concerns that the OfS is not investigating an issue suitably?

[Michelle Donelan]

Of course, we work hand in hand with the OfS and if there were concerns, we would be able to direct.

We are introducing a new complaint scheme, operated by the OfS, for students, staff and visiting speakers who have suffered loss as a result of a breach of those duties. On top of that, we are introducing a new statutory tort as a legal backstop. The Government tabled amendments in Committee to ensure that new strengthened freedom of speech duties apply directly to constituent colleges of registered higher education providers. That will ensure that appropriate institutions must comply with the new duties in universities such as Oxford, Cambridge and Durham.

[Daniel Zeichner (Cambridge) (Lab)]

Will the Minister give way?

[Michelle Donelan]

I will, and then I will make progress.

[Daniel Zeichner]

I am grateful. I am sure the Minister will be aware that institutions such as the University of Cambridge are concerned about the extra bureaucracy that may well create—particularly for commercial partnerships, which are completely unrelated to freedom of speech issues. Will she clarify what is meant by “constituent institutions” and the intent in new clause 2? Is she really putting a general monitoring duty on the OfS to require pre-emptive reporting?

[Michelle Donelan]

The hon. Gentleman raises a few points. In new clause 2, “constituent institutions” mean colleges. It is right that we should not have a potential loophole in the Bill. When forming new clause 2, I worked very closely with the university sector, including the University of Cambridge, so I ask him, respectfully, to talk to it again.

A number of important issues were raised in Committee. Opposition Members expressed concerns that the Bill would protect hate speech on campus. I have been clear throughout the passage of the Bill and will make the point once again: the Bill is only about lawful free speech. Let me be clear that this cheap shot has no actual validity. It is the Opposition’s attempt to discredit the Bill. It is a strong signal that they are content for an intolerant minority to silence those they disagree with, content for academics to feel the need to self-censor, content for students to miss out on the ability to debate, to critique and to challenge, and, ultimately, content to stifle debate. The Bill does not override the existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination, nor the public sector equality duty and the prevent duty. Nor does it give anyone the right to be invited to speak at a university.

There were also questions from Members on both sides of the House, including my hon. Friend the Member for Congleton (Fiona Bruce), on whether junior researchers and PhD students will be covered as academic staff. That was laid as an amendment by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.

I now turn to the Government amendments tabled in the name of my right hon. Friend the Secretary of State. New clause 2 and Government amendments 13 and 14 will impose a duty on the Office for Students to monitor the overseas funding of registered higher education providers and their constituent institutions, so as to enable it to assess the risk from such funding on freedom of speech and academic freedom. The duty will include a requirement to consider this in the context of a finding of a breach of new section A1 in clause 1. Higher education providers will be required to supply to the OfS information about overseas funding from certain individuals and organisations, with the details to be set out in regulations. The funding will cover not only the income that providers receive, but that of their constituent institutions, their members and their staff in their capacity as such. Similar provision will also apply to student unions. The OfS must include a summary of the information in its annual report, along with relevant patterns of concern.

Our amendments are proportionate, but we must ensure that our higher education system remains world leading, safeguarding an environment in which freedom of speech and academic freedom can thrive.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

The Secretary of State was escorted off the premises by security following his attendance to give a speech at one of our leading universities, after he was hassled. That was shameful behaviour, but that level of security is not available to everyone at all times. We need not just legislative change but a culture change, so that we accept that everyone with a different view is not a bad person and that there is not necessarily a right or wrong answer. What wider work are the Government are doing to instil that in younger children before they get to university?

[Michelle Donelan]

My hon. Friend is right. We need a cultural change, and legislation of this nature can spur such change. In our schools, we also need an environment of openness and frankness, and to grow that throughout the education system. I know that my colleagues in the Department are looking at this and will provide further guidance to support teachers shortly.

I know and understand the concerns raised by hon. Members, including my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman) and for Chingford and Woodford Green (Sir Iain Duncan Smith), and my hon. Friend the Member for Rutland and Melton (Alicia Kearns), which is why the Government are acting on new clause 3. I can confirm explicitly that the Government amendment will include educational partnerships, including Confucius institutes, and that the OfS will be able to impose a wide range of proportionate remedies as specific conditions of registration. That could include requiring a provider to make available alternative provision, or even to terminate a partnership if necessary to protect free speech. We will ask the OfS and its new director to make it clear that those are possible remedies in the guidance that will be published.

We of course continue to welcome foreign investment and donations to higher education as a key part of supporting innovation and development, but the amendments will increase the transparency of overseas income by requiring granular data to be reported to the OfS. Our intention is to proscribe countries for the purpose of the amendment by mirroring the countries listed in the academic technology approval scheme, which will exclude countries such as our NATO and EU allies, as well as countries such as Japan. We also intend to set a threshold of £75,000 in regulations. Hon. Members should be assured that in each case the ability to make provision by way of regulations will allow us the flexibility to amend as appropriate.

[Alicia Kearns]

I thank my right hon. Friend for the significant time that she has invested in speaking to my colleagues and me about this. Can she confirm clearly that Confucius institutes will fall within the remit of the organisation she is discussing because of the grave concerns about their strangulation of freedom of speech and thought on British campuses?

[Michelle Donelan]

I can confirm that Confucius institutes fall within the scope of these proposals, as I have outlined, and I urge all universities to increase the choice that they provide to students in this regard.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

Following the intervention by my hon. Friend the Member for Rutland and Melton (Alicia Kearns), I wish to be assured on one point. Do the Government genuinely believe that the Confucius institutes pose a threat? Other Governments in the free world have banned the institutes from campuses, not only because they limit free speech, but because they have been involved in spying on Chinese students, especially those who show any kind of disregard for what China does. The institutes are very dangerous, and the issue goes wider than just the ability to shut down free speech: they are also reporting back about Chinese students, many of whom live in fear.

[Michelle Donelan]

Many countries have worked with their university sectors to enhance the choice on offer. For the first time, the Bill will give the OfS the power to act if free speech is in question, so it is radical in that sense.

[Dr Julian Lewis (New Forest East) (Con)]

I appreciate that the provision is mainly about free speech in UK universities, but does the Minister share my concern about the proposed £155 million gift from the billionaire chairwoman of a Vietnamese company to Linacre College, Oxford, a distinguished graduate college, on condition that the name of the college is changed to that of the chairwoman? Her company is extremely close to the Vietnamese Communist Government, where there is certainly very little freedom of speech. The Privy Council has to approve the change. Are the Government taking a view on the matter?

[Michelle Donelan]

I have recently been alerted to this issue and I am actively investigating it. I will update my right hon. Friend in coming days.

Government amendments 3 and 4 and 6 to 10 make provision on the payment of security costs for events. The amendments place a duty on higher education providers, colleges and student unions not to pass on security costs unless in exceptional circumstances to secure freedom of speech within the law. The Government want to put an end to the practice of no-platforming by the back door, raised by many Members in Committee, including my right hon. Friend the Member for South Holland and The Deepings.

I said then that I was listening, and the amendments address the concerns. We have seen reports that a student society faced a £500 security bill from Bristol University student union to allow the Israeli ambassador to give a talk, while charging nothing to allow his Palestinian counterpart to do the same. The Union of Jewish Students has reported to me that some Jewish societies have even been billed for security costs for having stalls at freshers’ fairs. That is outrageous. If a university has a culture on campus in which security is required for inviting routine speakers, it has a culture in which intimidation, threats and violence are seen as acceptable. That does not constitute promoting free speech. The solution is to stamp that unacceptable culture out and stop student societies paying the price for those who break the law.

Government amendment 5 will change the coverage of college student unions, often called junior and middle common rooms. It makes it clear that the Bill does cover the activities of JCRs and MCRs, thereby clarifying the position.

Government amendment 11 will make it clear that the OfS is not required to make a decision as to the extent to which a free speech complainant is justified if that complaint is then withdrawn. Government amendments 12 and 15 set out how publication under the scheme will work in relation to the more general publication provisions recently inserted into the Higher Education and Research Act 2017 by the Skills and Post-16 Education Act 2022. In particular, the Bill provides for absolute privilege against defamation claims arising from publication of OfS’s decisions under the complaints scheme, whereas the general provisions give qualified privilege to other publications. The absolute privilege matches the approach taken by Parliament to the complaints scheme run by the Office of the Independent Adjudicator for Higher Education.

Government amendments 1, 2 and 16 will remove the express limitation on the definition of academic freedom that it covers only matters within an academic’s field of expertise. Once again, the Government have listened carefully to Members who raised issues in Committee, including my hon. Friend the Member for Congleton and my right hon. Friend the Member for South Holland and The Deepings.

The Bill marks the Government delivering on our manifesto pledge, while listening and strengthening the Bill throughout.

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I want to turn briefly to new clause 5. It would introduce a sunset clause to the Bill, ensuring that it expired after three years, and provides for clauses to be removed if they are not working. The new clause does not deny the importance of freedom of speech or academic freedom, or our commitment on this side of the House to both. It addresses the flimsy evidence base underpinning the Bill. Last week at the Higher Education Policy Institute annual conference, the Minister struggled to provide concrete evidence to show that there was a freedom of speech crisis in our universities, other than anecdotes and what she believed to be true.

[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.

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[Miriam Cates]

I am very sorry to hear it. The hon. Lady absolutely should not be. What I am trying to say is that this is a much wider issue than the particular incidents that have made the headlines, and some deeper culture changes need to take place. That will take time, and we need to do a lot in schools as well.

I very much support the Bill. Hopefully it can narrow the divide that we see in society. I very much support the Government amendments, which will do a lot to protect freedom of speech.

[Michelle Donelan]

With the leave of the House, I will speak on the non-Government amendments. New clause 1 seeks to improve transparency, especially in relation to foreign donations, and new clause 3 would place a duty on higher education providers as part of the promote duty to report information about foreign language, culture and exchange programmes and courses to the Office for Students and the Secretary of State. The Secretary of State would then be empowered to direct them to terminate the partnership or offer an equivalent if there were concerns about freedom of speech.

My hon. Friends are absolutely right to promote the importance of transparency of overseas financial arrangements, and we agree, which is why Government new clause 2 addresses those concerns. New clause 2 also requires the reporting of funding from certain overseas educational partnerships, including Confucius institutes, which addresses new clause 1 and the first part of new clause 3.

New clause 3 would have unintended consequences and place an unnecessary burden on the sector. Under new clause 2, there would be a financial threshold and countries such as NATO allies would be exempt. New clause 3 has no exemptions, which would mean that every single kind of partnership would be covered from the Turing scheme and third-year language students studying abroad with partner universities to important international research exchange programmes. The burden on providers to deal with that information would be disproportionate and would stifle the ability of our world-class universities to work with global partners on important research programmes.

The Government take the concern regarding foreign interference extremely seriously, however, which is why we developed a cross-Government programme of work to counter those threats, and we are continuing to work with providers to help them to understand the threats and respond. Government new clause 2 will help us to do that, and the Office for Students could utilise a range of enforcement powers to issue fines, close programmes such as Confucius institutes, or mandate universities to offer alternatives to students if that was necessary to secure free speech. As I said, however, new clause 3 would have unintended consequences.

Amendments 19 and 20 would provide that a non-disclosure or confidentiality agreement with the governing body of a provider did not mean that members, staff or students and visiting speakers could not speak freely. I stress that I fully support the spirit of this amendment; it is almost unimaginable to think of anything worse than suffering sexual assault and then being pressurised into being silent. I have been very vocal about the fact that our universities should never use NDAs to silence victims of sexual harassment, which is why I launched a pledge in January to end the use of NDAs. Some 66 universities are now signed up, 62 of which are in England, and three Oxford colleges.

We have a long way to go, which is why I am constantly talking to universities and working with Can’t Buy My Silence to call out those who have as yet failed to sign the pledge, but I know that a number will sign imminently. When it comes to the use of NDAs and sexual assault, the higher education sector has an opportunity to lead the way and show others what can be done.

We have also asked the Office for Students to impose a binding condition of registration on universities to ensure that they properly tackle sexual misconduct, which we intend to deal with that sort of behaviour. This would have teeth and it would mean that universities could be fined up to half a million pounds; they could even lose their degree-awarding powers. The ramifications would be big, and it would mean that the lawyers who developed those NDAs would be breaching the registration condition by doing so. We are the first Government who are prepared to tackle this issue, and I shall continue discussing with colleagues on both sides of the House all the ways in which we can tackle sexual harassment in universities, because that issue is very important to me and we will be doing more.

Amendment 17, which would widen the definition of academic freedom, is not necessary, because all the proposed new paragraphs are already covered by Government amendment 1, which will remove the requirement for academic freedom to be within an academic’s field of expertise. New clause 6 would add a new definition of academic staff, which I outlined in my opening speech.

New clause 7 and amendment 21 would change the definition of harassment in the Equality Act 2010 and under the Bill. I fully agree that there are occasions when universities have misapplied the Equality Act and have relied on it to wrongly shut down lawful free speech. There is both a subjective and an objective element as to whether harassment has taken place, and that should not be based on the views of just the complainant. Indeed, we saw a case last week where the University of Essex had to amend its policies following welcome pressure from the Free Speech Union. I assure hon. Members that once the Bill has passed, the new director of the Office for Students will ensure that providers are complying with the Equality Act as it is written, rather than overreaching.

[Sir John Hayes]

I am grateful that my right hon. Friend is addressing the amendment that stands in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt). Part of the problem is that universities are drawing up policies for dealing with complaints about free speech and its protection that are themselves faulty; they are often based on advice from individuals and organisations that have a skewed view about the relationship between free speech and the Equality Act. Will she look at those policies and their sources, and the advice that universities are receiving?

[Michelle Donelan]

My right hon. Friend is correct. As I said, some universities have misinterpreted the Equality Act, which is why comprehensive guidance will be produced by the new director that will be the main source that they should refer to, rather than external agencies.

[John McDonnell]

On the point about advice, we are dealing with what has obviously become a contentious issue that often relies on subjective judgments. The advice that universities will take will come from the director for freedom of speech and academic freedom. Does it not behove the House to ensure that that person has the absolute confidence of those universities? New clause 4 simply says that that person will not be associated with a political party and will be appointed by an independent panel, and that a Select Committee will have a role in confirming that appointment. That will hopefully take the director who provides such sensitive advice out of the political melee and give universities more confidence in them.

[Michelle Donelan]

If the right hon. Gentleman will allow me, I will get to that point later; he may intervene again if he is not satisfied with the response.

Amendment 18 would require the Office for Students, when considering a complaint, to be mindful of the right of students to feel safe on campus, and of other legal duties such as those under the Equality Act 2010 and the Prevent duty. But the duty in the Bill to take “reasonably practicable” steps to secure freedom of speech and academic freedom will allow for relevant considerations to be taken into account. In particular, it will allow for other legal duties, such as those under the Equality Act and the Prevent duty, to be considered.

“Reasonably practicable” is a commonly understood term used across the statute book. It means that the relevant body can take into account all the other legal duties on a case by case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that. As for the Office for Students, it will be required to take into account all the relevant facts. It would not be appropriate to try to set out all the considerations that it should take into account, so the Government do not support the amendment.

New clause 4 concerns the appointment of the director for freedom of speech and academic freedom to the board of the Office for Students. It relates to the appointee giving a donation to a political party, and it would require the appointment to be made by an independent advisory panel. We have in this country a robust public appointments process that, rightly, does not bar people who are members of political parties from serving in such roles.

The Commissioner for Public Appointments sets out that every year numerous public appointments are made of individuals who declare political activity, and in many years more appointees have declared an affiliation to the Labour party than to the Conservative party. This rule is such that, if applied generally, it would have prevented individuals such as Alan Milburn, Baroness Falkner and John Cope from serving.

On who will appoint the director, this will be carried out in the same way that the other members of the Office for Students board are appointed under the Higher Education and Research Act 2017—by the Secretary of State—and this will of course be done in accordance with the public appointments process. It would not be consistent to treat the director under this Bill differently. The Government therefore do not support this amendment.

[John McDonnell]

As this now goes to the other place, could I just ask the Minister to think again on that particular issue? This is an incredibly contentious area, and it requires someone who is above any form of suspicion of party political linkages. More importantly, it requires someone who has the confidence of an independent panel, but also, I believe, of one of our Select Committees. I urge her to think again, at least about the appointments process and the engagement of a confirmatory vote by a Select Committee on this critically important post, which I think is so important that the legislation will stand or fall on this appointment.

[Michelle Donelan]

I am a little taken aback by the comments of the right hon. Member, who refers to the relationship between political parties as suspicious—quite something given that we are all related to political parties. The Government will not be thinking again on that one.

New clause 5 would introduce a sunset clause, meaning that unless a report is made to Parliament and regulations are made, the legislation would expire three years after the date of enactment, and it would give Ministers the power to discontinue provisions in the Bill after one year. The fact that the Opposition have tabled this amendment demonstrates very clearly that, whatever they say, Labour Members do not support free speech. They have consistently opposed the need for this Bill despite the very clear evidence, and they now are seeking to dismantle it before it has even started. The Government wholeheartedly oppose this amendment, and we will never falter in our determination to safeguard free speech.

With the assurances I have given, I hope Members will not press their amendments to a vote, and I commend this Bill to the House.

Question put and agreed to.

New clause 2 accordingly read a Second time, and added to the Bill.

New Clause 4

Appointment of the Director for Freedom of Speech and Academic Freedom

“(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

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

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”—(Matt Western.)

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

Brought up, and read the First time.

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

--- Later in debate ---

[Michelle Donelan]

I beg to move, That the Bill be now read the Third time.

I would like to take the opportunity to acknowledge all who have contributed to the Bill’s passage. The nature of the problem and the intensity of those opposed to academic freedom has made even acknowledging the issue an incredibly brave act in many cases. I thank the many right hon. and hon. Members who have raised the issue and contributed to the discussion over the years. In particular, my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and my hon. Friends the Members for Congleton (Fiona Bruce) and for Penistone and Stocksbridge (Miriam Cates) have played an important part in scrutinising and strengthening the Bill. I thank my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman), for Harlow (Robert Halfon) and for Chingford and Woodford Green (Sir Iain Duncan Smith), my hon. Friend the Member for Rutland and Melton (Alicia Kearns) and others for raising the important subject of international donations transparency. I also thank the research institutes and think-tanks who have shone a spotlight on the scale of the problem, such as Policy Exchange, Legatum and the policy institute at King’s College London. Together with the support of the Russell Group, Universities UK and other sector organisations, we on the Government side have been able not only to understand the scale of the problem but to shape the solution.

I was personally moved by much of the oral evidence given in the Public Bill Committee, so I struggle to understand how the Opposition sat there, heard that and yet still failed to back this robust action. Individual academics, such as Professor Kathleen Stock, Professor Nigel Biggar and Dr Arif Ahmed, have also played a fundamental role, raising awareness of the problem and advocating for change, sometimes at significant cost to themselves.

Members from across the House made valuable contributions during the debate and during the passage of the Bill. Some, in fact, highlighted areas of good practice in our universities. Despite pressure to limit free speech, in April Reading University vice-chancellor Robert Van de Noort published a strong, principled defence of academic freedom and freedom of speech that echoed many of the issues the Bill intends to address. The University of Cambridge rightly rejected proposed guidelines that all opinions must conform to the requirement of being “respectful”. Frankly, that would have been absurd.

However, that type of good practice is not always representative of the sector. As just one example, the high rates of self-censorship that numerous surveys and studies have documented show that the problem is widespread. The very nature of self-censorship means that the actual rates are likely to be much higher than reported. Students arriving at university today join an environment where one in four of their peers believe physical violence is justified to shut down views they deem to be hateful. We see that some are too ready to levy the charge of “hateful” at any view they disagree with. Staff are teaching at universities at a time when 200 of their colleagues recently reported receiving death threats and abuse with no support from their universities.

The UK has become the only country in the top tier of academically free countries to be significantly downgraded by the Academic Freedom Index. We are now ranked 63rd in the world. This is at a time when a university professor expressed lawful opinions and ended up needing police protection to visit a university campus. That is the culture that has been embedded in too many of our universities. It is not about lawful, peaceful protest, which of course should be celebrated; it is about a culture in which a small number of students and academics believe they have the right to act with impunity to harass, intimidate and threaten those whose views they disagree with until they are silenced and driven out. Again and again we have seen that occurring, while university authorities stand by and do nothing. No individual should have to fear for their personal safety, or rely on the good will of their colleagues to go about their job safely.

We will not let that continue, so we are taking action and delivering on our manifesto commitment, unlike the Opposition who continue to bury their heads in the sand. Madam Deputy Speaker, indulge me for a moment. Let me remind Opposition Members of some of the comments they have made during the passage of the Bill. One said there was:

“no evidence…of a free speech crisis”. —[Official Report, 12 July 2021; Vol. 699, c. 114.]

Others said it was

“tackling a problem that does not really exist.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]

and that the legislation is “not necessary” and “manufacturing a problem”. Even the shadow higher education Minister called this a “virtually non-existent problem”. But I fail to believe that the Opposition do not recognise the wealth of evidence that they, too, have heard and seen. It is time that they were honest: they are simply anti-free speech.

This Government will always stand up for free speech, which is why our Bill confirms that it is not acceptable for students, staff or visiting speakers to fear repercussions for exercising their right to lawful freedom of speech and academic freedom. The Bill will also ensure that individuals have routes to redress if their rights are not secured due to breaches of the duties placed on higher education providers and student unions. Under the existing legislative framework, those clear routes of redress do not exist. They are essential to ensure that freedom of speech and academic freedom are protected to the fullest extent. The Bill is about changing the wider culture on university campuses so that everyone has an equal right to be heard and peacefully challenged. That should be done with tolerance of different opinions and in a constructive way. It does not grant any protection to unlawful speech.

Whether some Members realise it or not, change is needed. As we have seen historically on issues such as gender equality, race discrimination and human rights, such cultural change occurs more readily when backed up by appropriate legislation. At present, we have a duty without proper means of enforcement. The Bill is therefore a vital piece of legislation that will lead to the cultural change necessary to tackle the issue at the core. I therefore challenge the Opposition to show the world of higher education that we value freedom of expression the same as we value it here in this place, and to be on the right side of history—the side that stands for free expression, free speech and academic freedom. I commend the Bill to the House.