Amendment 9

Higher Education (Freedom of Speech) Bill - Report – in the House of Lords at 4:45 pm on 7 December 2022.

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Earl Howe:

Moved by Earl Howe

9: Clause 1, page 2, line 38, at end insert—““member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;”Member’s explanatory statementThis amendment excludes those who are members of the provider, solely due to having been a student of the provider, from being a “member” of the provider for the purposes of Part A1 of the Higher Education and Research Act 2017.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, government Amendments 9, 12 and 31 are officially classed as “minor and technical” although I would not want to downplay their significance. They will clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life, in particular members of the governing councils of universities and retired academics who are emeritus professors.

However, the noble Lord, Lord Wallace of Saltaire, tabled amendments in Grand Committee with the intention of probing the meaning of “members” in the Bill; the noble Baroness, Lady Smith, spoke on his behalf. During the debate, several noble Lords expressed concern at the use of the term “without qualification”, as some registered providers and colleges treat their students as members for life. After the debate, my officials looked into the matter and confirmed that this is the position in the case of, for example, the University of Cambridge.

As a result, the Government have tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. I should make it clear that, if a current student’s freedom of speech is wrongly interfered with, they may still make a complaint even after they have left university. These amendments do not affect that. I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, for initiating in Grand Committee the discussion that brought this issue to light; I hope the House will agree that these amendments are necessary.

Amendment 24, as tabled by the Government, will distinguish between new functions imposed on the Office for Students by the Bill. It will amend the power in new Section 69A(2), in Clause 5, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values.

My noble friend Lord Willetts tabled some amendments to Section 69A in Grand Committee. When my officials considered these, it came to light that the wording of this provision might cause some confusion. This is because it refers to

“the promotion of freedom of speech and academic freedom”.

That wording replicates Section 35 of the Higher Education and Research Act 2017, which provides that the OfS may

“identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers”.

However, using the word “promotion” in this clause may have misled some people to think that the power relates to the new duty on providers and colleges to promote the importance of freedom of speech and academic freedom, which is in Section A3, in Clause 1 of the Bill. I can confirm that it does not. The OfS will have a duty under Section 75 of the Higher Education and Research Act to give guidance on how to comply with the duty under Section A3. There is no overlap with new Section 69A(2). Accordingly, new Section 69A(2) is different, providing the OfS with a general power to disseminate good practice and advice on how to support freedom of speech and academic freedom. In order to make this clear, we wish to amend the Bill to distinguish between the two functions.

I am grateful to my noble friend Lord Willetts for tabling his amendments that brought this issue to light. I believe that this minor change to the wording of the Bill will help to make it clearer to understand and to use in practice. I hope that the House will agree. I beg to move.

Photo of Lord Grabiner Lord Grabiner Crossbench 5:00, 7 December 2022

My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.

Amendment 9 agreed.

Amendment 10 not moved.