Schedule - Minor and Consequential Amendments

Higher Education (Freedom of Speech) Bill – in the House of Commons at 7:30 pm on 13 June 2022.

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Amendments made: 15, page 14, line 23, at end insert—

‘4A (1) Section 67B (publication of decision to conduct or terminate investigation) is amended as follows.

(2) In subsection (3), for “Section 67C does not apply” substitute “Neither section 67C nor paragraph 13 of Schedule 6A applies”.

(3) After subsection (3) insert—

(3A) In the application of this section to publication of a decision under the scheme provided by virtue of Schedule 6A (free speech complaints scheme)—

(a) references to an investigation (however expressed) are to a review of a free speech complaint under the scheme;

(b) for the purposes of subsection (2)(a), the OfS terminates an investigation without making a finding if it—

(a) (i) does not make a decision as to whether a free speech complaint is justified because the complaint is withdrawn, or

(ii) dismisses a free speech complaint without considering its merits;

(d) for the purposes of subsection (2)(b), the findings of an investigation do not result in the OfS taking any further action only where—

(i) the OfS decide that a complaint is wholly not justified, or

(ii) the OfS decide that a complaint is justified (wholly or partly) but do not make any recommendations about the person about which the complaint is made.”

4B In section 67C (protection for defamation claims) after subsection (2) insert—

“(3) This section does not apply to the publication of—

(a) a decision or recommendation made by the OfS under the scheme provided by virtue of Schedule 6A, or

(b) a report under paragraph 12(1)(b) of that Schedule.

(See instead paragraph 13 of Schedule 6A.)’.

Section 67C of the Higher Education and Research Act 2017 (inserted by the Skills and Post-16 Education Act 2022) provides for qualified privilege to defamation claims arising from publication by the OfS of decisions etc. The free speech complaints scheme inserted into the 2017 Act by the Bill provides for absolute privilege for defamation claims arising from publication of OfS decisions etc under the scheme. This amendment modifies the application of section 67B so it is clear how it applies in the context of the free speech complaints scheme and removes the overlap between section 67C and the provisions of Schedule 6A by providing that section 67C does not apply to decisions etc under the free speech complaints scheme.

Amendment 16, page 16, line 25, leave out

“and within their field of expertise”.—(Michelle Donelan.)

See explanatory statement for Amendment 1.

Third Reading

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education) 8:17, 13 June 2022

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 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 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.

Photo of Matt Western Matt Western Shadow Minister (Education) 8:25, 13 June 2022

I extend my thanks to all those involved in the passage of the Bill in Committee and on Second Reading, as well as this evening. I join the Minister in thanking Government Members, as much as those on the Labour Benches. I thank my hon. Friend Emma Hardy, my right hon. Friend John McDonnell, my hon. Friend Lloyd Russell-Moyle, my right hon. Friend Mr Jones, my hon. Friend Andrew Gwynne and others. They made constructive comments and contributions to the process in Committee, and I place on record my thanks to them.

As we come to the end of the Commons stages of the Bill, just under a mammoth 400 days since it was first introduced, it is clear that it has been something of a distraction from what really matters to the sector and students. We have just heard, in the urgent question on the Government’s failure to address the dreadful GDP figures, that the UK economy is in a dire position. We are in the midst of the worst cost of living crisis since the 1970s. Three out of every four students are currently worried about managing financially. One in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. On the doorstep in Wakefield, when I was talking about some of these issues, someone said to me, “What on earth has that got to do with the price of fish?” She is right. What has this got to do with the price of fish? Put simply, students are not exceptions to the rules of this crisis. The challenges faced by students are a reflection of what is going on in wider society, for sure. The Minister has responded by uplifting student maintenance by just 2.3% this year—2.3%—against a backdrop of an inflation rate pushing 10%, while at the same time ignoring any of the reforms to student maintenance proposed by the Augar review.

Meanwhile, the Government have imposed this piece of unnecessary legislation on the House, expending 30 hours of parliamentary time on this Bill, a Bill primarily searching for a problem—and I will come on to the point of what we would do. Seemingly, despite finding little time to tackle the cost of living crisis, the Government can find time to protect antisemites and people who, in the Ministers’ own words, are aiming to cause deep hurt and offence. Never mind that the Joint Committee on Human Rights’ report into freedom of speech at university in 2018 found there was

“no major crisis of free speech on campus”,

or that research conducted by the Office for Students found that out of over 62,000 requests by students for external speaker events in 2017-2018, only 0.01% were rejected by student unions or university authorities. The Minister seems determined to pursue divisive legislation to stoke culture wars for her own political agenda. Last week, when she addressed the Higher Education Policy Institute conference, she could not substantiate her claims in support of the Bill.

The Government like to present themselves as defenders of freedom of speech, but their actions tell us differently, including their plans to arrest noisy protesters and limit others, to restrict the right to vote through voter ID and their outright attacks on the BBC and plans to privatise Channel 4. The Government are interested in freedom of speech only if that speech is framed in their own image. The Minister says that Labour’s position is absurd. Free speech on our campus but no right to free speech on our streets is utterly absurd. I need not remind the House that Labour has always championed free speech. Indeed, it was a Labour Government who introduced the law guaranteeing freedom of expression.

The issue here is all about evidence, and the point I have just made about the Minister. That is why Labour has deep reservations about the unintended consequences of the Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in the academic community. When that happens,

“Governments lose faith in academics to protect freedom of speech and step in with legislation. It is what happened in 1986 and it is what is happening again”.

Not my words, but those of one of the Minister’s esteemed predecessors.

Conservative Members cry, “Well, what is Labour’s plan?” That is easy. We believe in adopting best practice off the shelf whenever we can. Our universities and the academics and teaching staff who work within them are world leading. It is no surprise, therefore, that there is a vast array of really good practice out there if the Minister only chose to look—the Manchester guidelines, the Chicago principles or Robert French’s independent review of freedom of speech in Australian higher education, to name but three. Countries around the world have similar issues, but the point is how they go about addressing them. If the Minister were really interested in promoting and protecting freedom of speech and academic freedom, she would encourage this approach across the sector. Such approaches would go a long way to fostering the healthy culture of debate on campus we all want to see. Sometimes institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective, more consensual approach to protecting freedom of speech on campus.

The Bill will expose universities and student unions to potentially lengthy civil proceedings brought by anti-vaxxers, holocaust deniers or hate preachers. Debates about freedom of speech are complex enough without Ministers creating a legal route open to abuse by vexatious claimants—suppression of debate through what is termed and recognised as lawfare. Despite the Minister repeatedly claiming that this new statutory tort would be an important backstop, there is no reference to that in the Bill. She has failed to put in place any mechanisms to prevent providers, including the 165 further education colleges that fall under the scope of the Bill or student unions, from falling victim to costly litigation. Today the Institute for Fiscal Studies has warned that Government spending on adult education and apprenticeships in England will be 25% lower in 2025 than in 2010. I need not remind the House of how costly lawsuits are. Every 1p spent by institutions defending such claims in the court will be 1p less spent on the student experience, on hardship funds, on new library facilities and on research and development. Those potential legal costs are not even included in the £50 million the Minister’s Department estimates the Bill will cost the sector over the next 10 years.

The public are desperate for the Government to focus on the immediate and very real priorities—the cost of living crisis, energy bills doubling in a year, 40% of households in energy poverty, demand on food banks rocketing and the worst performing economy in the G20 bar one. That country, Russia, is burdened by massive international sanctions. The Government want to spend precious time on pursuing this blatantly ideological legislation that will do nothing for the great British public. It is self-serving, and another demonstration of just how out of touch the Government are. Change should come from the ground up rather than the clunking fist of an embittered Government.

In terms of legislation, the Bill is about as big a Big Dog’s breakfast as it is possible to get. As it progresses to the other place, I very much look forward to many peers taking note of some of our suggestions for improvement. Other than Lord Wharton of Yarm, I believe there will be widespread opposition to the Bill from all parties and indeed the Cross-Bench peers. Given that we have had almost 100 amendments in total to this Bill, and it is only 19 pages long, they will have a lot of areas to choose from. Before it returns, I very much hope that the Government will have started to treat universities as a public good rather than a political battlefield.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 8:34, 13 June 2022

I will speak very briefly, making only three points in two minutes.

First, it is disappointing that the Labour party is opposing the Bill. By its nature, it is a party whose Members are elected to a Parliament that has as its foundation the exchange of honestly held opinions. Even at this late stage, I feel that Labour Members might be persuaded to change their mind. I implore them to do so, because it is entirely specious—as Matt Western, who is a thoughtful person, knows—to compare the cost of living with the price of freedom. The price of freedom is the capacity to disarm, to disturb, sometimes to make people feel uncomfortable and certainly to challenge the status quo. That is the nature of academic discourse, yet it is at risk.

Secondly, the evidence is clear. In Committee, Trevor Phillips said that

“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.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 23, Q42.]

Professor Biggar said:

“My view is that the Bill would protect lawful free speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 24, Q44.]

He went on to say why that was necessary. Professor Ahmed said:

“With regard to self-censorship, my own experience has been that it has changed drastically over the last 10 years…I know that there are people who bite their tongues in the sense that they will not object to certain things that are pointless and stupid, simply because they are afraid of the consequences.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 15, Q26.]

The consequences for academics and students can be dire: they are isolated, they are persecuted and in some cases, as we have heard, they are even driven out of their job.

The Government have got this right, and the Opposition have got it badly wrong. As Members of this House know, I am not a person who thinks that a single party or a single side of the House has a monopoly on wisdom, but on this particular occasion all the wisdom lies with the Government Front Bench. I implore the hon. Member for Warwick and Leamington and other Opposition Members to change their mind, look to their conscience and defend freedom of speech, as I know the Minister is doing and the Bill does.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health) 8:36, 13 June 2022

It is a pleasure to follow Sir John Hayes. Unfortunately, I could not make a speech on Report because I was attending a meeting with the Foreign Secretary about the Northern Ireland protocol, but I want to contribute on Third Reading. I declare an interest as chair of the all-party group on international freedom of religion or belief.

The Bill is critical. I commend the Minister for how she has delivered it and for her speech on Report, which I was able to hear. The Government have delivered the very legislation that I, personally, wish to see. I believe that my constituents and those who write to me—my mailbag is very substantial—also wish to see it. The Government have done a good job today; I am absolutely in favour of the Bill.

I could give examples of Christian conferences not having their dates renewed at universities, or of young Christian unions being pigeonholed by activists into expressing an opinion based on their sincerely held belief, only for it to be cited as hate speech. That is ridiculous, and that is why the Government have introduced legislation, which I very much welcome, to address the matter. The Bill will make a difference and protect Christians and other religious groups. I never thought that we would be in a place where we needed to take these steps, but the fact is that we have to, and the Government have done so.

A minority of people in influential places have been gift-wrapped the ability to halt freedom of speech in our universities, which, instead of being a place of open thought and debate, are now closed to anything that is not of a certain agenda and persuasion. I thank the Minister and our Government for the steps that they have taken to bring the Bill to completion. The Government have ensured that there will be no loopholes that could be used by those who wish to exercise their freedom of speech but who cannot afford others the same very basic right, which the right hon. Member for South Holland and The Deepings referred to on Report and just now.

I am given to understand that reforming the Human Rights Act may have led to the more restrictive definition of academic freedom in the original wording of the Bill, which included a caveat that academic freedom exists only within an academic’s field of expertise. This was expressed to me in a briefing by Universities UK. UUK has subsequently welcomed amendments 1, 2 and 16, which remove the express limitation that academic freedom covers only matters within an academic’s field of expertise, and I agree: a teacher of mathematics should still be able to express his belief about biology in a considerate and kind manner, should the need arise. UUK understands that the Government intend to provide guidance for universities in respect of the new duties in the Bill. That is particularly significant given that duties can often appear to overlap or sit in tension with one another. An example is the Prevent duty, which has legal protection. The Government have enshrined in the Bill protection for the people whom I represent, and, indeed, for people throughout this great United Kingdom of Great Britain and Northern Ireland.

I support the Bill in the hope that we will have freedom of speech, freedom of religion or belief and the freedom to choose no belief, if that is what people want, and that that will be enshrined in our universities rather than this seemingly insidious desire by a select few to shut down debate and oppose anyone who cannot agree with their “enlightenment”. My goodness me, what a poor world it would be if everyone were like that! Jews deserve the right to practise their religion in so far as it does not harm others, as do Muslims, Sikhs and Buddhists. They deserve the right to express their beliefs—as they still do—in a way that does not harm anyone. This is about respect, and I am browned off with seeing so much disrespect for people.

We must also legislate, increasingly, to ensure that those who wish to speak of Christ and His teachings have the right to do so in the halls of their university student unions, and not just in their churches or chapels.

Question put and agreed to.

Bill accordingly read the Third time and passed.