Moved by Lord Willetts
58: Clause 8, page 10, line 20, leave out “may” and insert “must”Member’s explanatory statementThe purpose of this amendment is to specify the route through which complaints must go, i.e., the OfS cannot intervene until a university’s own procedures, or those of the Office of the Independent Adjudicator, are exhausted.
My Lords, I will speak briefly to Amendments 58 and 59 in my name and that of the noble Lord, Lord Stevens of Birmingham.
In many ways these amendments follow on naturally from the debate which we have just held in this Committee. It has become very clear that one of the problems that we face is the lack in this legislation of any provision for a coherent complaints procedure which works step by step. A key issue, which will be of concern to many universities, student unions and other bodies, is whether they could find themselves simultaneously facing a civil litigation, an investigation by the Office for Students and a complaint to the Office of the Independent Adjudicator. It would seem extremely damaging and unproductive if all these different types of complaint, all envisaged in this legislation, could go on at the same time. So Amendment 58 is a simple attempt to provide at least an element of provision for sequencing rather than simultaneous investigation.
I realise that the Bill reflects a regrettable loss of confidence in universities as autonomous bodies able to run their own affairs and resolve their own disputes; we have had some vivid examples, for example from the noble Lord, Lord Triesman, opposite, of how those disputes are conducted. Amendment 58 says, “Let’s give universities the first chance to resolve these disputes before they’re then investigated by the Office for Students”. It is an attempt to provide universities with their first responsibility—although not to leave them on their own any longer, absolutely in recognition of the point that the Office for Students would then have the power to intervene.
That leads on to Amendment 59, which tries to specify that the Office for Students really ought not to investigate vexatious complaints. It seems rather absurd and odd that we have a provision at the moment which says that it may or may not investigate vexatious complaints. Why do we not just say that it should not investigate vexatious complaints?
I regard both these provisions as providing some reasonable clarity on the process that will help universities and student unions, while also offering some protection for the OfS itself. We heard, in a very important intervention from my noble friend Lord Johnson, who played a crucial role in the creation of the Office for Students, that of course it is a key regulatory body. The tenor of the arguments from all sides of the Chamber today has been that, if anything, we see an enhanced role for the Office for Students rather than more civil litigation. At least the OfS ought to be able to say to a potential complainant, “You first need to have gone through a process with your university”, and, “I’m terribly sorry; this is a vexatious complaint and we are not allowed to investigate such things”. That will also help provide some definition of the role of the OfS.
In the light of the interventions we have had this afternoon, particularly from noble and learned Lords, I realise that the definition of the role of the OfS in these circumstances needs to go much further. There is much more we must clarify, but I hope these two amendments at least start the process of bringing some necessary clarification.
My Lords, Amendment 60 follows on from what my noble friend Lord Willetts has said. We all seem to agree that we need a strong and effective regulator; that is absolutely at the bottom of this. My amendment makes absolutely clear the scope—or as lawyers say, the jurisdiction—of the regulator. It would prevent a subsequent challenge in court that the regulator did not have power to deal with this.
The amendment seeks to ensure that the OfS complaints scheme has a jurisdiction that is wider than the conventional ombudsman’s jurisdiction, which is simply to determine administrative fairness and reasonableness. It appears that the OfS complaints scheme is modelled closely on that of the Office of the Independent Adjudicator. That is pragmatic and sensible, and we know that scheme works. However, in two decisions—the case of Maxwell in 2011 and a decision in 2007—the Court of Appeal limited in an important respect the jurisdiction of the Office of the Independent Adjudicator and ruled that, acting as an ombudsman, it cannot adjudicate on legal rights and duties and that such matters are to be left to the courts.
We need an amendment to make it plain that the limitation the Court of Appeal introduced in the case of the OIA will not apply to the OfS. Otherwise, the director for freedom of speech and academic freedom will have very limited powers to address the substance of university free speech disputes, which will typically concern the right to free speech and this Bill’s statutory duties. This amendment would remove an unintended weakness and provide the regulator with the powers that I believe this House wishes it to have.
My Lords, I rise to speak to my Amendment 62. I can help the Minister by saying that it is probably imperfect. That may save her a lot of time later, as she tries to dissect it to see how well it would or would not work. I have been doing my best to find something that might work, but I am painfully aware of its imperfections. Perhaps the best thing I can do is explain what I want it to achieve. I hope that the noble Lord, Lord Willetts, will not be upset by my saying that it follows his intentions as expressed in his amendment.
I am very grateful to the Minister, the noble Earl, Lord Howe, for saying that he will review Clause 4. A viable alternative, which is not unusual in other regulated bodies, is to say that every institution regulated by that body should be compelled to accept its rules. This is a body within higher education, in the same sense that the REF, other funding decisions and many other decisions have now been imported into the world of universities. Most of us would probably have preferred that they remain more independent, but I have accepted the argument that this is very difficult to sustain, given some of the things that have happened.
In this case, what I am trying to achieve is that every institution providing higher education be registered with a body and consequently accept its rules. As the noble Lord, Lord Johnson of Marylebone, said earlier, it was intended that the Office for Students be constructed to be authoritative and to provide appropriate guidance. However, it is not then for a university, a student union or anybody else who brings a complaint through this mechanism to say that they will not abide by the decision taken by an officer—they could be named almost anything—in the Office for Students with the responsibility for adjudicating these matters.
I am keen that it should be a named office. A great deal of knowledge will be developed around the culture of dealing with these things in a way that probably would not happen with successive judges in courts. It will develop a knowledge and be able to respond in a knowledgeable way, and within the overall culture. The determination of this officeholder would be binding on those who had submitted the complaint.
I recognise that it is very seldom the case that people will say that this should be a completely untrammelled power. Therefore, I have also tried to build in a means by which the decision can be looked at—in a way, like an appeal. But in either case, whether accepted at first hearing or having gone through a second hearing, it is the decision and the parties must abide by it. I recognise that this makes no allowance for financial penalties, and I have not written anything of that kind into the amendment. However, it might very well make decisions about how a university, individuals within it or people invited to take part in its affairs should conduct themselves and, if necessary, reinstate a debate which has been cancelled. There is a whole variety of things that it could do.
I want to create something of that kind because it will be authoritative, it will address a number of questions that the Bill is obviously intended to address, and it will be from within the culture of higher education, rather than imposed on it from somewhere else, which is never a good recipe in higher education. It is miles better if it is felt to be at least in some significant way part of the beast of higher education. There may be many better ways of formulating this, but that is the amendment’s aim. It does exactly what a number of noble Lords have said, which is to reinforce the regulatory system by making its determinations mandatory for all those who have joined the club of that regulatory system. No doubt it would in due course provide guidance. That would probably be very useful after the first cases have been heard and people have begun to ponder their import and what has been learned from them. It would probably provide good guidance. That is a structure which the best regulators achieve.
The old mechanism in the Cabinet Office to look at the validity of regulation specified a number of things. I will not go through them all, but it specified that the outcomes should be proportionate, intelligible, widely disseminated and understood more widely. We should expect all that as part of the outcome from proper regulation. Better regulation makes people feel they can live with a solution, rather than being ordered to do it in a court or some other place.
This amendment hangs together with the deliberations on Clause 4. I am ready to accept that it will need radical reworking. Helpful as the House of Lords officials have been in my trying to get there, I can see that somebody, including me, could pull bits of it to pieces.
My Lords, without wishing to repeat points that I made on earlier amendments, I will refer briefly to the amendments put forward by the noble Lords, Lord Willetts and Lord Stevens of Birmingham, Amendments 58 and 59. Both draw attention to key deficiencies in the current drafting of the Bill.
On moving Amendment 58 at the outset of this group, the noble Lord, Lord Willetts, identified a problem with the priorities or procedure to be adopted. All I respectfully say about that is that we need more of a root and branch exercise on the respective powers of regulators, if Clause 4 unhappily ends up in the legislation. This Bill is currently deficient on the relationship between those two mechanisms. Although I agree with the principle identified, I would like to see a more sophisticated response to the problem.
On Amendment 59, the distinction in legislation between “may” and “must” is a lawyer’s old chestnut: “may” is discretionary; “must” is compulsory or mandatory. In order for any body to conclude whether a claim is vexatious, frivolous or a waste of time, it needs some understanding of the facts. I do not think whether it is “may” or “must” matters; it is important that a body has the power to dismiss a case if it is satisfied it is vexatious, frivolous or, for some other reason, unmeritorious.
My Lords, I have a couple of brief points. Following that helpful contribution on Amendment 59, I want to clarify that complaints are very often dismissed as vexatious, but it is important that we do not accept at face value that things are vexatious because somebody has accused them of so being. That can be a way of closing down the complaints procedure.
I also want to raise a query. I may have misunderstood something in Amendment 58 in the name of the noble Lord, Lord Willetts, but it suggests that
“the OfS cannot intervene until a university’s own procedures … are exhausted.”
There is a difficulty there. Often, academics and students to whom I have spoken feel that their dispute is with those very academic authorities, and that even the complaint within the university can get them targeted as free speech troublemakers. It is not straightforward. In some instances, we are talking about a rather toxic atmosphere. Often, the complaint an academic has is precisely because they have been put on some procedure by the university authorities—they may have been suspended or put forward for disciplinary action—which they feel is unjustified. They then get cleared, but all the testimonies from people who have been in this situation make the point that the process is the punishment these days. As I said earlier, the period in which an academic has been labelled as a user of hate speech, suspended from their job or whatever it is can be really discrediting and damaging to their reputation. It is slightly more complicated than has been presented, and this is one of the problems with the state of universities at present, in relation to free speech.
In that sense, I want to raise the concern I have with Amendment 61 which has not yet been mentioned. Amendment 61 states that:
“When assessing whether a free speech complaint is justified, the scheme must require the OfS to be mindful of … the right of students to feel safe on university campuses”.
There is a problem with that caveat of students feeling safe. We might think that means feeling safe in a physical sense—they are not being physically threatened—but the notion of students feeling safe is precisely how free speech is regularly closed down on campus. To use examples, trans students say that they do not feel safe when they hear gender-critical views or even when they are in the presence of someone who they know is gender-critical, even if they do not say anything gender-critical then. Feeling safe cannot be a caveat on the duty of academic freedom, under any circumstances.
The notion of feeling safe is now being broadly determined by a new therapeutic ethos in which harm is seen as psychological, not physical, and which is entirely subjective. When the whole issue of academic freedom first emerged, it was from students demanding safe spaces, so that they could be protected from hearing ideas that made them feel unsafe. What looks like a minor caveat on academic freedom would actually be the death of this Bill, so that it ended up being a censorship charter.
At a decolonisation argument at the University of Edinburgh recently, a Scottish professor gave a speech in which he said that, when he saw the strangulation and murder of George Floyd, he saw in the police officer’s face David Hume—the Scottish Enlightenment philosopher. He said he could not see that murder without seeing David Hume’s face. The argument was put forward that David Hume was a colonial philosopher who was responsible for slavery, which led directly to that murder. Far-fetched though that might be, the university authorities renamed the David Hume Tower, so that it is no longer called that, students having lobbied to say that they felt unsafe when they walked past it because it was a reminder of racism and colonialism. This is not a far-fetched example; it sounds wacky but the university changed the name of the tower and discredited one of the greatest philosophers of our time.
We must understand that academic leaders are unlikely to take action against speakers, academics, students or staff for a simple difference of opinion but, once the allegation is made that personal safety has been jeopardised, they are obliged to take action. The elision of words and violence is a linguistic trick that has been weaponised on campus with ruthless efficiency and caused a great deal of damage. I want to remove feeling safe completely from this amendment.
My Lords, I rise to speak to my noble friend Lord Wallace of Saltaire’s contention that Clause 8 should not stand part of the Bill. He is back from his holidays but is speaking at the funeral of a very old friend in Bradford. He is very regretful that he cannot be here with us for the Bill, about which he cares so much.
This amendment harks back to the passionate speech of the noble Baroness, Lady Deech, at Second Reading, in support of the Office of the Independent Adjudicator. She was critical in setting it up and said it was doing a decent job. It exists and does a reasonable job of dealing with complaints, but Clause 8 is a complete duplication of bureaucracy. We noted that it was recommended by a Policy Exchange paper, but we do not have to do everything that Policy Exchange tells us to do. This clause will impose considerable additional costs but where are the benefits of this? Surely the Office of the Independent Adjudicator should be able to sort out most of the issues in this clause.
Anyway, universities should be able to manage their own complaints themselves, which most of them do very adequately. Mistakes will of course be made occasionally, but we cannot necessarily assume that state intervention will do better in most cases than the universities themselves. This very lengthy clause, with lots of duplication, is surely not necessary. I am sure my noble friend Lord Wallace would have put it much more passionately, but we simply propose that there is no need for this clause in this Bill.
My Lords, I shall speak to Amendment 61 in the names of my noble friends Lord Collins and Lord Blunkett, and say to the Minister that this group of amendments is striving to make sense out of something. I read this clause several times over the weekend and found it very puzzling and complex. The Minister needs to look at this amendment and the complete complaints procedure again. I am very struck by the words of the noble Baroness, Lady Garden: it imposes costs, but where are the benefits?
The amendment of my noble friend Lord Triesman has tried to impose order on a very confusing clause. It may not be perfect but he is initiating a useful discussion. Every amendment in this group seeks to clarify and modify how the complaints procedure might work. As the noble Lord, Lord Willetts, said at the opening of this debate, the complaints procedure is not clear.
My noble friend’s amendment would ensure that free speech complaints are considered alongside other competing freedoms, such as the Equality Act 2010 and the Counter-Terrorism and Security Act 2015, and that the Government should specify in guidance how that should happen. We have been raising issues around the compatibility of this Bill with those Acts all the way through this discussion and we are raising it again in relation to the complaints procedure.
I will not add any more to that. I think the Minister—the noble Earl or the noble Baroness—will need to address all these amendments, including ours, because, as it stands, this is not a satisfactory clause at all.
My Lords, I shall now address the group of amendments that relate to the complaints scheme to be operated by the Office for Students.
Amendment 58, from my noble friend, Lord Willetts, seeks to mandate the provisions set out in paragraph 5(2) of new Schedule 6A on what complaints can or should be ruled out of scope for consideration under the scheme. Amendment 59 seeks to mandate that the OfS must dismiss “frivolous or vexatious complaints”, with the intention of reducing the potential bureaucratic burden on the OfS and higher education providers.
The current drafting’s use of “may” rather than “must”, as highlighted by the noble Lord, Lord Grabiner, is intentional. The wording is derived from the Higher Education Act 2004, which established the student complaint scheme of the Office of the Independent Adjudicator for Higher Education. This is the usual drafting approach when setting up a new body or new scheme in legislation, allowing for the decision-making body to have discretion in setting out the detail.
New Schedule 6A sets out the bones of the new scheme but it will be for the OfS to provide the detailed rules. The OfS needs the discretion to determine which rules should apply, looking at the scheme in the round. The noble Baroness, Lady Fox, highlighted some of the reasons why that is important. We anticipate that the Office for Students will consult on the rules, so it will be informed by key stakeholders in the sector. These rules will set out the detail of the type of complaint that the scheme will consider and the process to be followed.
I think we are aligned on my noble friend’s aspiration for coherence—he is smiling behind me; I am not sure whether that is encouraging—but it is a question of where that coherence is established. We respectfully suggest that that should be done in detail in the rules. My noble friend will absolutely be aware that paragraph 5(2)(b) of new Schedule 6A clearly sets out what is within scope for the OfS to decide—whether a free speech complaint should not be referred until the internal procedures are exhausted. We would expect that to be set out more clearly and in more detail when the OfS has gone through this procedure of drafting the rules.
It is also the intention that complaints should be referred under the scheme within a specified time limit. In the case of the OIA, the time limit is 12 months from the date on which the higher education provider tells the student its final decision. The OfS may well decide on a similar provision, but that is a level of detail for it to determine; it is too specific to be included in primary legislation. It is not necessary to mandate that there should be a time limit, as the OfS will want and need to include this as a matter of good administration. The OfS will also set out rules on how it will deal with frivolous or vexatious complaints for the reasons that the noble Lord, Lord Grabiner, eloquently exposed.
I know that my noble friend and the Committee more generally will have spotted that we use “must” in a couple of cases in the Bill. That is where it is considered particularly significant, such as in the requirement to make a decision and the need to make a recommendation if the regulator considers a complaint justified where “may not” is used—that is, where we have a prohibition.
Amendment 60, from my noble friend, Lord Sandhurst, seeks to confirm in the Bill that the OfS has the power to determine whether a provider has breached its freedom of speech duties. My noble friend is right to think carefully about how the complaints scheme will work.
My noble friend mentioned the Court of Appeal decision in Maxwell and the powers of the OIA. This was about its power to adjudicate on disability discrimination. The court held that it was the OIA’s role to review complaints and consider whether the provider acted reasonably and in a justified way. Here, the Bill sets out the parameters of what the OfS must decide. It is clear that it will have the power to determine whether they consider that there has been a breach of the free speech duties.
The Bill specifies that the OfS must provide a scheme under which it is to review and determine free speech complaints. Such complaints are defined as claims that the person has suffered adverse consequences as a result of the governing body’s action or inaction, and
“claims that, or gives rise to a question as to whether, the action or inaction was a breach of a duty of the governing body under section A1.”
That is at paragraph 2 of new Schedule 6A. Where a complaint is referred under the scheme, the OfS will be required to make a decision as to the extent to which the complaint is justified. As I mentioned earlier in relation to the Maxwell case, this makes it clear that the OfS may determine whether a provider has breached the freedom of speech duties. Indeed, it is a central part of how the complaints scheme will operate.
Amendment 61 from the noble Lord, Lord Collins of Highbury, which was eloquently presented by the noble Baroness, Lady Thornton, seeks to set out in the Bill that the OfS must be mindful of the right of students to feel safe on campus, and the other legal duties on providers, colleges and student unions, when considering whether a complaint under the complaints scheme is justified. These other duties would need to be specified in government guidance issued within three months of the passage of the Bill.
As I mentioned, Clause 8 provides that the OfS may make a decision under the complaints scheme as to whether an individual has suffered adverse consequences as a result of a breach of specified freedom of speech duties set out in the Bill. The wording of new Sections A1 and A5 is clear that the main duty is to take “reasonably practicable” steps to secure freedom of speech. The Bill does not say that the freedom of speech duties override other duties and so the Bill must be read consistently with other legislation. I heard the noble Baroness say that she has repeatedly raised issues of compatibility; I hope this goes some way to addressing those. It would not be reasonably practicable for a provider, college or student union to act in a way which means that they would be in breach of their other legal duties, as I have said before.
Given the wording of the duty, when the OfS considers a complaint under the complaints scheme it will already have to take into account all the circumstances, including student safety and other legal duties on providers, colleges and student unions. As for guidance for those subject to duties under the Bill, we anticipate that the OfS will issue guidance about the free speech duties and the complaints scheme, so separate government guidance will not be needed. Indeed, it could confuse matters.
I thank the noble Lord, Lord Triesman, for his generous introduction to his Amendment 62, which would introduce a free speech and academic freedom officer at the OfS. The officer would act on behalf of the OfS, with powers to require anyone to do, or refrain from doing, anything found necessary as a result of an inquiry under the complaints scheme, and to publish their findings and reasons. Under this amendment, constituent institutions of registered higher education providers and student unions would be obliged to comply with the requirements of the officer, unless they had compelling reasons for not doing so and they published and shared these reasons with the OfS. The OfS would then be required to make immediate arrangements to consider them and make a binding decision in the case. The amendment also seeks to ensure that compliance with the requirements of the officer is made a condition of registration with the OfS, and that, in the case of student unions, it is made a condition of their financial support.
Much thought has been given to the design of the complaints scheme, and it has always been our intention that decisions made under the scheme should give rise only to recommendations, not requirements. This is the common approach of ombudsmen schemes that operate in the public sector, and we believe that it is the right approach here.
We would expect the OfS’s recommendations to be complied with, as a registered provider, constituent institution or student union could incur significant reputational damage if it did not comply. If it did not comply, the complainant would in any event have the right to bring tort proceedings before the court. In doing so, we would expect the OfS’s decision under the complaints scheme, including any reasons for the decision, to form part of the evidence put before the court, and it seems unlikely that the result would be different.
I do not believe that the designation of a free speech and academic freedom officer is necessary as the Bill already makes provision for the creation of a new role on the OfS board for the director for freedom of speech and academic freedom. The director will have responsibility for investigations of infringements of the free speech duties and will oversee the imposition of sanctions for regulatory breaches, as well as recommendations under the complaints scheme.
On the final sub-paragraphs of the amendment, I assure the noble Lord that it is not necessary to make compliance with OfS requirements a condition of registration for providers, or of financial support for student unions. The Bill already makes provisions for new registration conditions relating to freedom of speech. Under Clause 6, the OfS must ensure that the ongoing registration conditions of each registered higher education provider include a condition requiring the governing body of the provider to comply with the free speech duties. I think that this lay at the heart of the noble Lord’s amendment. The Bill also makes provision for the regulation of student unions’ free speech duties by the OfS, and allows the OfS to impose a monetary penalty on a student union if it breaches its duties.
In the light of these measures, I am confident that providers, their constituent institutions and student unions will be bound by, and comply with, their free speech duties under the Bill, and will comply with any requirements or recommendations made by the OfS.
Finally, I turn to the notice from the noble Lord, Lord Wallace of Saltaire, of his intention to oppose the inclusion of Clause 8 in the Bill, which was ably communicated by the noble Baroness, Lady Garden. I understand that he wishes to clarify why the Office of the Independent Adjudicator for Higher Education is not sufficient to respond to student complaints. Clause 8 is essential to the Bill. The OfS complaints scheme will provide a clear, effective and cost-free route for all individuals who have a specific complaint to seek redress for breaches of the new freedom of speech duties. The noble Baroness asked what the clause adds. Without it, staff and members of the provider, and visiting speakers, would not have access to redress. The OfS scheme also provides a route for complaints against student unions, without which there would also not be access to redress in that regard.
It is true that a student can currently bring a complaint against their provider or college through the OIA and they will still be able to do so. The OIA will remain the body for general student complaints. That means that students will have a choice. If, for example, they have a number of various complaints, including one involving freedom of speech, they may want to go to the OIA, but if their complaint is solely about freedom of speech they may wish to use the OfS scheme, which is dedicated specifically to that.
Unlike the OIA scheme, the OfS scheme will focus exclusively on freedom of speech and academic freedoms. I know that your Lordships previously expressed support for the OfS taking on this role. We are confident that the OfS’s experience and technical expertise will help it to perform the role effectively, with its clear view across the whole sector.
I assure noble Lords that there will not be unnecessary duplication or a sequencing issue across the operation of the two schemes. Paragraph 5 of new Schedule 6A will enable the OfS to make rules to ensure that a free speech complaint will not be considered under its scheme if
“a complaint brought by the complainant and relating to the same subject-matter is being, or has been, dealt with” by the OIA. Again, I think that was a point that my noble friend Lord Willetts raised.
Paragraph 19 of the schedule will enable the OIA to make an equivalent rule the other way around. I should point out to my noble friend that Amendment 58 would not in any event result in the OIA scheme having to be used before the OfS could consider a complaint. The OfS scheme will be vital in supporting the strengthened duties under the Bill. It will provide a clear and accessible route for making complaints and seeking redress for all individuals protected by the Bill. It is therefore a key component in ensuring that freedom of speech is protected within higher education. I hope I have offered reassurance about the need for this important scheme.
I thank the Minister for that response to a brief but very illuminating debate. I certainly learned from the debate that there are defects in the two amendments that I tabled. The noble Lord, Lord Grabiner, said they lacked sophistication, so I plead guilty to a certain rustic simplicity in just saying what should be done, and I have learned my lesson. I also understand the point that we have to do some investigation to establish whether a complaint is vexatious. However, I have to say to the Minister that at the end of this debate the underlying concern—again, I think, shared across all sides of the Committee—has not really been addressed. It is that some event does not happen, for whatever reason, at a university, and the following day a well-organised critic fires off a letter to the OIA, a letter to the OfS, tries to start civil litigation, writes a letter of complaint to the vice chancellor and phones a couple of newspapers. That is not in the interests of anyone who cares about freedom of speech and higher education. I think all of us on different sides of the Committee would like some greater clarity about the sequencing and the hierarchy that ensures that a student union or a university does not face that issue. However, in light of the Minister’s comments—I completely accept the defects in my amendments—and in the hope that in some way we can return to these debates, I beg leave to withdraw the amendment.
Amendment 58 withdrawn.
Amendments 59 to 62 not moved.
Clause 8 agreed.
Clause 9: Overseas Funding