Amendment 29

Higher Education (Freedom of Speech) Bill - Report – in the House of Lords at 8:00 pm on 7 December 2022.

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Baroness Thornton:

Moved by Baroness Thornton

29: Clause 10, page 15, line 11, at end insert—“(1A) The appointment of the Free Speech Director is subject to a confirmatory resolution of the relevant Select Committee of the House of Commons. (1B) The person appointed as the Free Speech Director must present a report to Parliament no later than 31 December 2023, and once a year thereafter.(1C) The report must include an assessment of—(a) the impact the role is having,(b) the implementation of the Higher Education (Freedom of Speech) Act 2022, and(c) the state of freedom of speech at the providers encompassed by that Act.”

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

Noble Lords will know that we have galloped around the director of free speech’s appointment several times at Second Reading and in Committee. I thank the noble Baroness, Lady Bennett, and my noble friend Lord Blunkett for their support. The noble Lord, Lord Wallace, and I are obviously still at one in our concerns about this matter.

Amendment 29 would subject the appointment of the free speech director to confirmation by a Commons Select Committee and compel them to report to Parliament every year on the impact their role is having, the implementation of the Bill and the state of freedom of speech at the providers. This is important because if the Bill is to do what we want it to do—deliver protection and support for freedom of speech—then the director who is responsible for that, the regulator, should be accountable to Parliament. The fact that this person sits on the board of the Office for Students, and is therefore only the chair of the board accountable to Parliament for that work, is not satisfactory. This is too important to be delivered without having any accountability to Parliament for the director of freedom of speech, both on their appointment and the work that they do.

I am not going to repeat everything I said in Committee and earlier stages about this. I think this legislation was pre-empted by the appointment already being made—I am not absolutely certain it has happened yet, but I think that the interviews were taking place during the summer—and that is a shame, but we can rectify that to a certain extent by making this person accountable to Parliament. I beg to move.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office)

My Lords, my name is on Amendment 30, which is an alternative version, and I wish to add my concerns. The Minister will know that there has been a lot of controversy about the overall public appointments process. There has been criticism in the press and from people who have been involved in acting as independent advisers on public appointments, in general and in particular.

The appointment of the current chair of the Office for Students was particularly controversial. There was criticism that the balance of the appointing committee appeared to be much more political than expert, and that the person appointed appeared to have no previous qualifications or expertise for the job, beyond having been a Conservative MP who had lost his seat and managed Boris Johnson’s campaign to be Prime Minister. That does not give us great confidence in the appointment of a freedom of speech champion; it also lessens confidence in the sector that the appointment process had been started so early. The Minister will be aware from the letter she had from a number of leading academics that this is one of their active concerns.

Given the particularly controversial nature of this appointment, if you want to achieve a degree of public confidence among those who will be affected by it in universities and elsewhere, it pays if it is seen to be a fair, open and reasonable process. That is not the case at present, and rumours of the sort of people who might be appointed—the names scattered around include those of one or two other Members of this House—would not at all assure the sector, so this is a particularly important process and appointment.

I ask the Minister to give us an assurance, as strongly as she can, that Universities UK, the Russell group and other stakeholders will be consulted about the process and the qualifications needed in such a person; that the appointing committee will be appropriate to the task to be undertaken; and that the Government will ensure, as far as possible, that the person appointed commands the confidence of those whom he or she will be regulating. That is not too much to ask but, against the context of what we have seen with public appointments in the past three or four years, it is a necessary ask. I hope she will be able to take us some way in that direction.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I have attached my name to Amendment 29 in the names of the noble Lord, Lord Collins, and the noble Lord, Lord Blunkett, which was so ably presented by the noble Baroness, Lady Thornton. Having heard those two speeches, I will be extremely brief because the case has been very powerfully made. At this stage these are probing amendments, but there is a need for a strong response from the Minister.

As the noble Lord, Lord Wallace, said, there is very grave concern about the nature of public appointments in many areas. If you combine that with the very grave concern that has been expressed from all sides of your Lordships’ House about the Bill and its operation, it makes this a particularly crucial response from the Minister.

I also note that in Committee there was an amendment to put a sunset clause on the Bill. It was not my amendment, but I attached my name to it. It was not brought back so I have not pushed forward with it, but that would have been an alternative way of tackling this problem; in some ways it would possibly have been a stronger way. Given where we are now, at the end of Report, we need to hear some very strong reassurances.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

My Lords, I support the thrust of both amendments, but I am rising to add to my declaration of interests earlier. I noted my role as an academic at Cambridge University. I am also a non-executive director of the Oxford International Education Group. I neglected that because the previous declaration linked to what I was saying. I was advised by the clerks to pop up at some point today. I declared it appropriately in Committee.

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

My Lords, I will now address the group of amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendment 29, tabled by the noble Lord, Lord Collins of Highbury, and very ably presented by the noble Baroness, Lady Thornton, seeks to impose extra requirements on the appointment of the director for freedom of speech and academic freedom and their role once in post. Amendment 30, tabled by noble Lord, Lord Wallace of Saltaire, similarly focuses on the appointment process.

As I said in Grand Committee, I want to be clear that

“the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017.”—[GC 751.]">Official Report, 14/11/22; col. GC 751.]

Although this is not officially a public appointment, it will be done in accordance with the public appointments process. This will ensure the independence of the process.

It is not necessary to include the additional requirement of confirmation of the appointment by the Education Select Committee. Such confirmation is not required for other members of the Office for Students board more generally, including the chief executive and the director for fair access and participation, who has a similar level of responsibility. The only role within the OfS which has involved prospective appointees appearing before the Select Committee is that of the chair. It would therefore be disproportionate and an unnecessary level of scrutiny that would set an unhelpful precedent for appointments to both the OfS and other public bodies, including those outside the higher education sector.

As for the involvement of the higher education sector in the appointment through formal consultation—I am afraid I cannot comfort the noble Lord, Lord Wallace—which is envisaged under his Amendment 30, this conversely would threaten the independence of the role.

I turn to the proposed additional reporting requirements to Parliament in Amendment 29. There are already several provisions in the Bill that provide for scrutiny of the operation of the Bill once enacted. Under Clause 5, the Secretary of State can ask the Office for Students to report on freedom of speech and academic freedom matters in its annual report or in a special report. This report must be laid before Parliament. This is based on the approach in Section 37 of the Higher Education and Research Act as regards equality of opportunity.

Under Clause 9, the annual report must include a summary of information on overseas funding and conclusions on patterns and trends of concern. This is based on Section 68 of the Higher Education and Research Act as regards financial sustainability.

Under Clause 8, the Secretary of State may require the OfS to conduct a review of the complaints scheme or its operation and to report on the results of that.

Finally, Clause 10 provides that the new director will be responsible for reporting to the other members of the OfS on the performance of the OfS’s free speech functions. This will ensure appropriate oversight within the OfS. This is based on Schedule 1 to the Higher Education and Research Act as regards the role of the Director for Fair Access and Participation.

Of course, members of the OfS board regularly appear before the Education Select Committee; for example, the chair and chief executive both appeared before it in May 2020 in relation to issues arising from the pandemic and, more recently, in September, the chief executive was a witness in relation to controversial research content and free speech.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues) 8:15, 7 December 2022

Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office)

The reason why we stress the importance of this appointment commanding confidence is that, when we began with the Bill—in particular with the think-tank paper that fed into it—there was a sense of “There is a problem here; the universities are desperately left-wing and we need to control them.” Many of us start from the position, on the contrary, that our universities have a worldwide reputation and are among our country’s greatest assets. If we are to maintain that reputation and the quality of those assets, we need to make sure that those who regulate them work with them, not against them. Finding some way of making sure that this key appointment starts on the right balance, with the right relationship with those it has to regulate, is therefore very sensitive and important. However the Government do this matters enormously.

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues)

I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendment 30 not moved.

Schedule: Minor and consequential amendments