Clause 8 - Director for Freedom of Speech and Academic Freedom

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee at 10:00 am on 22nd September 2021.

Alert me about debates like this

Photo of Matt Western Matt Western Shadow Minister (Education) 10:00 am, 22nd September 2021

I beg to move amendment 78, in clause 8, page 11, line 22, after “OfS” insert

“and an advisory board consisting of sector bodies”.

This amendment would ensure that there is the involvement of relevant sector bodies in the sector.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss new clause 7—Independent Advisory Body to advise the Director and OfS on the operation of the scheme—

“(1) Following the passing of this Act, the Secretary of State shall establish an independent advisory body (IAB) to give independent advice to the Director and OfS on the operation of the Act.

(2) The independent advisory body shall comprise of representatives of Universities UK, the Universities and Colleges Union and the National Union of Students.

(3) The advice of IAB shall be public except where mutually agreed by the Director and the IAB.”

This new clause would establish an advisory body of representative bodies within the sector to advise the Director and the OfS.

Photo of Matt Western Matt Western Shadow Minister (Education)

We come to the responsibilities of the director for freedom of speech. Amendment 78 simply seeks to ensure that one of the director’s roles is to report on the OfS’s free speech functions to a representative sample of sector bodies—something that we believe is vital. We heard from the witnesses in the evidence sessions about the potential power that the director could have. English PEN raised concerns about whether the director will be an adjudicator, a regulator or an advocate—it is not clear. Given that they will have such wide-ranging powers, it is surely only right that their reports are shared as widely and with as many stakeholders as possible.

This amendment is about collaboration—not a top-down approach, but a sector-wide, collaborative approach. Although I do not believe the post is needed, Trevor Phillips said in his evidence:

“The important point about this post is that he or she should be a protector of the freedom of expression of students and academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 21, Q39.]

How can one be a protector of the freedom of expression of students and academics without involving sector-wide bodies that represent those concerned?

New clause 7 seeks to ensure that the director is advised by an independent advisory board comprising representatives from each of the sector bodies. My right hon. Friend the Member for North Durham repeatedly alerted us to his concerns that the director could be used as a prop by an extremist Government—of any persuasion, as he made clear—to alter the parameters of the right to freedom of speech and academic freedom. Smita Jamdar raised concerns that retrospective administrative decision making and application is already on the rise.

The new clause is about ensuring greater protection for freedom of speech and academic freedom, and holding the director accountable to the advice they receive. It is vital that the board be made up of the constituent parts of the sector because of their value and expertise, and because they are on the ground, facing the reality of how this will work in practice. I hope the Government are attracted to this very progressive new clause and accept it. Since they have voted against our amendment to ensure that an appeals process is written into the Bill, the buck will now stop with the director. As we have said throughout, this is a dangerous centralisation of power in an individual. Professor Kaufmann said that the appointment would inevitably be political, and it is likely, as others have said, that this person will be partial to certain perspectives. This incredibly influential and powerful individual may not necessarily have the interests of all at heart when they decide on cases and incidents on our campuses.

Surely, stakeholder engagement is vital if this problematic Bill is to become effective on our campuses and in the higher education sector. One of the problems with the Bill, and one reason why it contains so many issues and loopholes, is that there has not been enough stakeholder engagement over the past 18 to 24 months. Here is an opportunity to amend the Bill to establish an advisory board of sector bodies to help the direction of the director for free speech.

New clause 7 outlines that that board could comprise Universities UK, the University and College Union and the National Union of Students. Any advice that the independent advisory board comes up with should be made public, because there should be the utmost transparency in the operation of the board and the delivery of its advice. That should be agreed between the director and the board.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 10:15 am, 22nd September 2021

In my view, this issue will evolve over time. Some of the issues that are contentious today may not be in the future, and some issues that we cannot foresee at the moment may well become contentious. On that basis, the director is going to be in a difficult position unless there is a strong network of advice provided to him or her. Amendment 78 would establish in the Bill the independence of that advice and the inclusiveness of the range of bodies from which the director will receive advice. As I have said, this is a bad Bill, but if it is going to go through, this provision would give confidence to those who implement or respond to the legislation.

In some ways, I feel for the director, because their position is vulnerable and they could be the butt of a lot of contentious debates. Having an advisory body provides a buffer—protection for that individual against being targeted in relation to key decisions. It is much better for the director to arrive at a decision having consulted a range of independent bodies. I am convinced that there will be an element of consensus about the implementation of most of the legislation, but when it comes to this issue, one needs advice from those at the coalface who are dealing with this on a day-to-day basis. Amendment 78 would make that possible.

I am sure that, as the Minister has said, the director will want to engage in those discussions. However, including in the Bill this provision for a more formal body, the independence of which is guaranteed in legislation, would strengthen the advice and therefore give the director much more authority. The amendment is designed to enable the whole system to evolve over time in response to the challenges that emerge. Some issues relating to freedom of speech that we would not even have discussed 10, 15 or 20 years ago have evolved into contentious matters. The only people who can advise us on that are those who deliver the legislation.

Most of the witnesses did not want their role to be simply that of a one-off witness to the Committee; they had an ongoing interest, and they wanted to continue to engage through their professional bodies or institutions. Amendment would 78 give them the opportunity to do so with guaranteed independence and an element of authority, working alongside the director. I see the amendment as constructive, and I hope the Government will take it on board.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

As we have heard, amendment 78 and new clause 7 seek to introduce an advisory board to work with the new director for freedom of speech and academic freedom and to advise the Office for Students on the operation of the Bill when it is enacted. Clause 8 provides that the director for freedom of speech and academic freedom will be responsible for overseeing the performance of the OfS free speech functions, including the monitoring and enforcement of free speech registration conditions, the new student union duties and the new complaints scheme.

As part of those responsibilities, the director will be responsible for reporting to the other members of the OfS on their performance of the OfS free speech functions. This reflects a similar provision in schedule 1 of the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to other members of the OfS on the performance of OfS access and participation functions.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

With respect, the Bill brings the student unions under the direct control of the OfS, and, as it is, the student unions do not have a direct voice through the Office for Students. I accept the Minister’s comments so far, but can she explain how the NUS and students can feed into the director for freedom of speech?

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

When the new director is in place, they will produce comprehensive guidance in consultation with the sector, including student unions. I am confident that the individual who is awarded the position will be someone who listens and works collaboratively across the sector.

Not only will the measure ensure oversight of the role of the director for freedom of speech and academic freedom for the rest of the OfS board, but it will allow the OfS to better co-ordinate and monitor its free speech functions. It is, of course, important that the OfS should be held to account in the performance of its functions. That is one reason why paragraph 12 of proposed new schedule 6A, which clause 7 will insert into the Higher Education and Research Act 2017, will require that the OfS conduct a review of the complaints scheme or its operation and report the results of that review to the Secretary of State, where such a report is requested. The Secretary of State may also require the OfS to report in its annual report, or a special report, on matters relating to freedom of speech and academic freedom. That report must be laid before Parliament, as laid out in clause 4.

The Government expect that the OfS will consult widely, including with sector representatives, as I have made clear throughout the Committee, when developing the details of the complaints scheme, as well as on changes to the regulatory framework. There will be guidance to help providers and student unions to comply with their duties under clause 4, which specifically provides for the OfS to give advice to providers on good practice on the promotion of freedom of speech and academic freedom. It is important that the OfS works closely and effectively with the sector, including with student unions—freedom of speech is no different in that respect.

There is no need to set up the bureaucracy of a non-statutory advisory body, as suggested by the amendment. The OfS is independent of the Government, so to do so would simply duplicate its role as set out in the statute.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

With the greatest respect, the Minister has just said that the OfS is independent of the Government, but the chair of the OfS is a Conservative peer, who was a Conservative Member of Parliament. We cannot say that the OfS is independent of the Government when we all know that its chair sits in the House of Lords and takes the Conservative party whip.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

The hon. Member has made that point before. The chair of the OfS was appointed accordingly, and the director for freedom of speech and academic freedom will be as well. I hope that Members are reassured that the Bill already ensures the accountability of the director for freedom of speech and academic freedom, and the OfS itself.

Photo of Matt Western Matt Western Shadow Minister (Education)

This is a common-sense suggestion about engaging and involving the various sector bodies to assist the director. The director’s role will be a fairly lonely one, sat in a swanky office somewhere, and the amendment represents a constructive suggestion. As we have said from the start of proceedings on the Bill, we are trying to put forward ideas to mitigate some of the damage that the legislation may cause. Engaging those at the coalface, as my hon. Friend the Member for Kingston upon Hull West and Hessle put it, who see how the measures play out in practice, will be really important.

I do not accept the Minister’s suggestion that the director for freedom of speech is going to be an independent person, or that the chair of the Office for Students is independent. People can make all sorts of suggestions about the process that was followed, but the Opposition has profound concerns, as most people do, about how that was pursued. We also have concerns about what will happen to the director for fair access and participation when that position is filled in a matter of weeks. It seems as though there is a siege mentality at the OfS, and a very determined attempt to centralise powers. I wish to press the amendment to a vote.

Question put, That the amendment be made.

Division number 21 Higher Education (Freedom of Speech) Bill — Clause 8 - Director for Freedom of Speech and Academic Freedom

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Photo of Matt Western Matt Western Shadow Minister (Education) 10:30 am, 22nd September 2021

I beg to move amendment 79, in clause 8, page 11, line 23, at end insert—

“(d) providing an annual update made available to students’ unions and higher education institutions on—

(i) the number and nature of complaints made to OfS regarding freedom of speech; and

(ii) examples of what OfS believes to constitute unacceptable infringements of freedom of speech as set out in this Act.”

This amendment would help monitor this impact of the legislation and assist student unions and higher education institutions to stay within the law as set out in the Act by providing examples of bad practice.

The amendment stands in my name and that of my right hon. Friend the Member for Hayes and Harlington. It simply seeks an annual update that would be made available to student unions and higher education providers to enable them to understand the nature and scale of the complaints being made to the OfS about freedom of speech, along with examples that the OfS believes to be infringements of freedom of speech as set out in the Act. The amendment seeks to address the undefinable nature of the so-called chilling effect and help institutions and others to navigate this tricky territory. As Dr Bryn Harris noted,

“one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q169.]

Although the amendment does not relate to the guidance to be published by the OfS, it would inevitably form part of a wider subset of guidance that universities and student unions could look to to help them craft their codes of practice to try to make this work in reality—day to day, and week to week—on campus. That would, in turn, help student unions to reduce their budgets and the cost to their members, and it would help to reduce the costs for higher education providers as well, because they would be able to rely on what we imagine will be an expanding set of guidance examples. That is important because, as the Government’s own impact assessment states,

“SUs are the main affected groups that we expect to incur costs including: familiarisation costs; compliance costs: the direct costs of complying with the regulation and enforcement”.

My real concern is what the intended or unintended consequences of the legislation will be for the viability of our student unions. Irrespective of our political positions, we know that their vitality and viability is important to life on our university and further education campuses.

The amendment would also provide evidence of whether the Act was working. Thomas Simpson said in evidence:

“The test for success is in 10 years’ time, when it is more embedded.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 63, Q125.]

I am not sure we can wait that long. If it is to work—I do not believe it will—it needs to be effective immediately. We need to see some significant changes in the months of the first year. If the test for success means waiting 10 years, how can the Government claim to be meeting the test if there is insufficient data to back up the claim? That is why reporting is so important. As I have said before, the OfS already collates data on the number of events that are cancelled as a result of the Prevent duty. The amendment is simply an expansion of that duty.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I want to speak to the amendment because it is important that there is public understanding of what the amendment calls the “nature of complaints made”. I am not sure whether the amendment would add anything to the regular reviews and reports in the amendment proposed by my right hon. Friend the Member for South Holland and The Deepings, which the very thoughtful Minister—she has promised to do a lot of thinking following comments made during this Committee—is going to consider.

It is essential that there is a good, clear understanding of the deliberations of the director. I very much support clause 8 and having the office of an individual who is responsible for looking at this kind of issue. It is really important that there is clarity on the deliberations and decisions of the director about the concerns referred to him.

I want to highlight an example of the nature of complaint that we are talking about. Yesterday, after the Committee last sat, an article entitled “Oxford college run by former equalities head apologises for hosting Christian conference” appeared in The Daily Telegraph. It said:

“New case of 'cancel culture' as Worcester College acknowledges 'distress' caused to students.

An Oxford college run by the former head of the equalities watchdog has apologised to students for hosting a Christian conference…In what has been described as the latest incident of ‘cancel culture’ at British Universities, Worcester College acknowledged the ‘distress’ that it had caused students by hosting a Christian Concern training camp… Christian Concern held its annual week-long Wilberforce Academy at the beginning of September, whilst Worcester College was closed for the summer break. The evangelical… group says that more than 100 young people were ‘very warmly welcomed, including by the Provost, received many compliments from the staff, and were not aware of any complaints or concerns’.”

However, students, presumably from Worcester College, are

“understood to have complained that the curriculum for the residential camp was Islamophobic as it included a discussion on the ‘nature of Islam’”.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

The hon. Lady is describing an event that went ahead—it was not cancelled. Some students had complained about it and the college has acknowledged the hurt, but it is not proposing to cancel it in the future. So what is the point?

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

Actually, I think the endeavour is to cancel this in the future.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

No, but it is my opinion that the endeavour is to cancel this in the future.

The definition of Islamophobia was actually debated in this place just a few days ago. The Under-Secretary of State for Levelling Up, Housing and Communities, my hon. Friend Eddie Hughes, said:

“we cannot accept a definition of Islamophobia that shuts down legitimate criticism and debate. Freedom of speech is the foundation of a healthy society, allowing for debate and disagreement underpinned by the values that bind people together—tolerance, equality and fairness.”—[Official Report, 9 September 2021; Vol. 700, c. 204WH.]

It seems to me that the mere discussion of the nature of Islam, which seems to be the allegation here, cannot possibly be construed as Islamophobic.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I entirely endorse what my hon. Friend is saying. Once the master had apologised, it is unlikely that the conference would be run there again. That is the point. Often, the people who issue these apologies are not malign or malevolent, but weak and weary or befuddled and bemused. This master may not be the brightest spark in the fuse box—we do not know—but clearly he was not shining brightly on this occasion.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I thank my right hon. Friend for that comment.

Finally, the Wilberforce Academy has been held at Oxbridge colleges for the last 11 years. I have actually spoken at one of its conferences; the students who attend the conference are serious young people seeking to inform themselves about issues of the day. We need to encourage that, not shut it down.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

Amendment 79 would make the director for freedom of speech and academic freedom responsible for providing an annual update to higher education providers and student unions on the number and nature of freedom of speech complaints that the Office for Students has dealt with, as well as examples of unacceptable infringements of freedom of speech.

It is important that the OfS is accountable for the operation of the complaints scheme. That is why clause 4 provides that the Secretary of State may require it to include a special report in its annual report on matters relating to freedom of speech and academic freedom. Such a report must be laid before Parliament so that Parliament and the sector may scrutinise it. Equally, paragraph 12 of proposed new schedule 6A to the Higher Education and Research Act 2017 provides that the Secretary of State may request that the OfS conduct a review of the complaints scheme or its operation and report on the results.

As for what the OfS believes constitutes unacceptable infringements of freedom of speech, it will issue guidance to providers and student unions to help them to comply with their duties under the Bill. In particular, it will consult on and issue changes to the regulatory framework, under section 75 of the 2017 Act, which states that the OFS

“must include guidance for the purpose of helping to determine whether or not behaviour complies with the general ongoing registration conditions.”

That guidance may specify

“descriptions of behaviour which the OfS considers compliant with, or not compliant with, a general ongoing registration condition” as well as

“factors which the OfS will take into account in determining whether or not behaviour is compliant”.

Similar guidance will be included for student unions.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Does the Minister imagine that inappropriate apologies will now not be allowed under that guidance?

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

I do not want to get into the individual example, because I am not fully familiar with the details. My hon. Friend the hon. Member for Congleton said that she was concerned that that event would not happen in future because of that apology. I will look into the details.

Clause 4 also provides that the OfS may identify good practice relating to the promotion of freedom of speech and academic freedom and give advice about that to providers. The Government expect the OfS to work with the sector and a range of relevant stakeholders to ensure that there is clear and relevant advice to help higher education providers and student unions feel confident in fulfilling their duties. I therefore hope that Members will be reassured that the Bill ensures transparency in relation to freedom of speech functions at the OfS, and that guidance will be given to the sector to help it to understand how it comply with its duties. However, as I have previously committed, I will take away the issue of reporting and consider what more we can do on it.

Photo of Matt Western Matt Western Shadow Minister (Education)

I thank the Minister for her remarks, which I accept at face value. I look forward to seeing what form the reporting will take. We would be very open to having some input on how best we can make that work. We do not want to be burdensome in terms of placing bureaucracy on anyone, but I think both sides of the House agree how useful reports can be to help people understand how this legislation might work in practice, by providing not just data but examples. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Matt Western Matt Western Shadow Minister (Education)

I beg to move amendment 85, in clause 8, page 11, line 23, at end insert—

“(1A) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom 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.

(1B) The person appointed as the Director for Freedom of Speech and Academic Freedom may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.”

This amendment would ensure that the Director of Freedom of Speech and Academic Freedom had not donated to any political party in the last three years and that they may not make any further donations to political parties for the duration of his tenure.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following:

New clause 9—Appointment of the Director for Freedom of Speech and Academic Freedom—

“(1) 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.

(2) The Secretary of State shall when appointing the Director for Freedom of Speech and Academic Freedom have regard to the views of an Independent Advisory Body.”

This new clause would require the appointment of the Director for Freedom of Speech and Academic Freedom to be confirmed by the Education Select Committee, and for the Secretary of State to consult the Independent Advisory Body when appointing the Director for Freedom of Speech and Academic Freedom.

New clause 11—Review of the appointment process for the Director for Freedom of Speech and Academic Freedom—

“(1) The Secretary of State must conduct a review of the appointment process for the Director for Freedom of Speech and Academic Freedom within six months following the calling of a new Parliament.

(2) Any review conducted under subsection (1) must assess the suitability of the appointment process for selecting politically impartial candidates.

(3) The Secretary of State must lay the report of the review before Parliament.”

This new clause would require the Secretary of State to review the appointment process for the Director for Freedom of Speech within six months following the calling of a new Parliament, and lay the report of this review before Parliament. The review must include an assessment of the suitability of the appointment process for selecting politically impartial candidates.

Photo of Matt Western Matt Western Shadow Minister (Education) 10:45 am, 22nd September 2021

It is pretty obvious what little faith we have in the potential appointment of a director of free speech. Often in life, it is not a case of what is said but who says it. We can look at this legislation and then try to interpret what is behind it. It seems obvious that this is a clear next stage in the Government’s power grab over the supposedly independent Office for Students. Until recently, the OfS was genuinely independent, but that power grab is laid bare for all to see in the Bill.

To put that in a wider context, it is fair to say that the Government have widely abused the public appointments process. It is not clear whether the director of free speech will be recruited through open competition or essentially appointed by the Prime Minister. On numerous occasions, I have raised the appointment of Lord Wharton as chair of the Office for Students. He is a Conservative party donor and takes the Conservative party Whip. He is a political appointee, so it is not a good record. To clarify, people can of course be donors. But in this case a person is appointed to the independent Office for Students one month, and the next month, having taken a pay cheque from the Government, he pays £8,000 to the Conservative party.

I would like to see the director of free speech appointed through the Committee on Standards in Public Life. On the wider problem of political appointees, I read just a few weeks ago that another of the Prime Minister’s mates, Ewen Fergusson, who happens to be another Bullingdon lad, was appointed to the Committee on Standards in Public Life. The pattern that is emerging is not good for anyone across the political spectrum. It is vital that trust in all these systems is maintained, irrespective of who happens to be in power. That trust can be eroded quickly and we have to ensure that all of us do our best to uphold it.

Many academics view what is happening as a creeping appointment of Government Members, not just to these sorts of bodies but to museums as well. I mentioned earlier the resignation of Sir Charles Dunstone as chair of the Royal Museums Greenwich, which was prompted by the Government’s refusal to reappoint an allegedly decolonising trustee, Aminul Hoque.

Our cluster of amendments seek to limit the interventionist role of Government in supposedly independent positions in public bodies. The concern about that role was highlighted by Professor Biggar in oral evidence, when he said:

“someone like me, who thinks there is a problem—and I guess the Government do, given the legislation—wants a director who has a certain partiality of that kind.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 22, Q40.]

That is clear then, isn’t? We want a partial person to be going into the independent Office for Students to preside over this important role of the director of free speech.

Dr Ahmed said:

“There are always concerns with the regulator—that it has to be impartial—and there are also concerns in this particular case.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]

Dr Ahmed was a Government witness, and I think he was referring to the case of Lord Wharton. Another witness, Smita Jamdar, a lawyer from Shakespeare Martineau, said:

“you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner

Does the hon. Member agree that it is important that, although these individuals are independent, they are also accountable? Does he recognise, as I do, having been part of a number of confirmation hearings for individuals appointed by the Government to significant roles in which they are expected to exercise independence, that that public, cross-party scrutiny—in this case, through the Education Committee—ensures that individuals can be questioned, and that the concerns that have been highlighted can be addressed, before the person assumes office, and that that happens in public and in a transparent manner?

Photo of Matt Western Matt Western Shadow Minister (Education)

Of course, we all want to believe in those processes, but when the processes end up consistently with mates of the Prime Minister being appointed, it is pretty disturbing.

Photo of Kevan Jones Kevan Jones Labour, North Durham

What the hon. Member for Ruislip, Northwood and Pinner said about transparency is correct. There might be a Select Committee looking at the individuals, but unlike the US system, there is no power of veto to stop those individuals being appointed. If a party has a majority, it will have its person, whether other people like it or not.

Photo of Matt Western Matt Western Shadow Minister (Education)

My right hon. Friend makes a very important point. That is one of the failings of our process in this country. I came across that when looking at international trade and the trade deals that might be struck by the US representative body. In the US, a trade deal would go before another Committee, which would have a veto on the criteria of the deal and whether it should be approved. The same thing should apply to this as well.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

My hon. Friend might recall that the Education Committee did not approve the appointment of Amanda Spielman as chair of Ofsted, but that was ignored by the Government and she was appointed. It does not even say in the Bill that there would be scrutiny through the Education Committee, which is something the Minister could at least clarify.

Photo of Matt Western Matt Western Shadow Minister (Education)

I was not aware of the case of Amanda Spielman, but we are increasingly seeing this sort of interference across the board. I have mentioned the case of the museum, and there is also the case that my hon. Friend has cited. What we want to do is put checks and balances in the system. If we were in government, we would expect the Conservative party to be saying the same of us. An honest and appropriate approach is needed. My right hon. Friend the Member for North Durham mentioned the US system, which is far tighter than so much that we have in this country. I just do not understand how the US can be doing it so well, yet we are not.

Photo of Richard Holden Richard Holden Conservative, North West Durham

We have ended up in a discussion about the US system versus our system, but the US system also has substantial flaws. One thing on which we probably agree on both sides of the House is that we want to see a minimum rate of corporation tax across the globe, which looks like it will probably be held up by Committees in the United States. There is give and take in both the systems that we are looking at. The hon. Gentleman suggests that the US’s system is perfect or is something that we should be moving towards, but it actually allows vested interests to block really sensible proposals that are liked by many other countries around the world. I would like him to reflect on that in his comments.

Photo of Matt Western Matt Western Shadow Minister (Education)

I am not saying that the US has a perfect system; far from it. I am saying that the parliamentary process, or the process that involves bodies from within the democratic systems of this place, generally pales in comparison to the way the US does this.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree that the US system is not perfect, but would my hon. Friend support something like the NHS appointments commission, which the Labour Government introduced? It took Ministers and politicians out of the process of appointing people to health boards, and took as its bedrock the principles on standards in public life, which were the main criteria in taking decisions. Would that not be a better system, rather than allowing the Government of the day to appoint who they want?

Photo of Matt Western Matt Western Shadow Minister (Education)

I was not aware of that, so there is a gap in my knowledge, but I think that is exactly the right sort of approach. We need this appointment to have credibility.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I am not going to continue the debate about the United States, although there are some virtues in its system—appointments to the Supreme Court spring to mind. To bring matters back to hand, Dr Ahmed, whom the hon. Gentleman has quoted, was very clear. He said:

“There is no evidence that I am aware of that there would be any problems with the appointments process.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q37.]

When it comes to credibility, he said that what matters is having someone who has “guts and principles.” That is what we need in this role—someone who can grasp the nettle. The prickly nettle is the absence of free speech, which is becoming increasingly common in our higher education system.

Photo of Matt Western Matt Western Shadow Minister (Education)

It sounds as though we may be being slightly selective in our quotes from Dr Ahmed, because I take something slightly different from what he said. I take on board the point that the right hon. Gentleman has made, but I reiterate that, as Dr Ahmed has said:

“There are always concerns with the regulator—that it has to be impartial”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 20, Q36.]

That is where we have real concerns about the direction of travel with the OfS.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

To clarify, and to put this as succinctly as possible, we are asking for the person to be appointed on the basis of what they know, not who they know. That is pretty much what all these amendments amount to. I draw the Committee’s attention to the appointment process for the OIA chair, because it looks much fairer. It focuses on the need for relevant skills and expertise, and the chair is

“appointed through fair and open competition in line with the Nolan Principles because of the value and relevance of their skills and experience.”

The OIA is not Government-owned or funded, and the chair is appointed as an independent trustee. That is the kind of thing that we are looking at here. If we refer back to the evidence given by UUK and many others, including the lawyer, we can see that they were looking for someone with some kind of legal experience and knowledge of the sector, who was appointed independently. Everybody from those evidence sessions would say the same thing if they were sitting here: “Let’s have some independence in this process.”

Photo of Matt Western Matt Western Shadow Minister (Education)

I thank my hon. Friend, who has mentioned points that I was just about to come to.

Photo of Matt Western Matt Western Shadow Minister (Education)

It is absolutely fine, and I appreciate it. The Universities UK advisory board said quite explicitly that openness and transparency are needed in this appointment.

I wanted to come on to the models that we could be using to improve the appointment of the director for freedom of speech; we recognise that the Government are determined to have such a position. In the Office of the Independent Adjudicator, nine of the board of trustees, including the chair, are independent director-trustees. They are appointed through a fair and open competition in line with the Nolan principles, as my right hon. Friend the Member for North Durham has just mentioned, based on the value and relevance of their skills and experience. From what we heard in the evidence sessions, it was not absolutely clear what skills and experience the director for freedom of speech might need, but we certainly had some insight into the values that they might have.

In December 2016, the Cabinet Office published its governance code for public appointments, in which it was made clear that all public appointments should be governed by the principle of appointment on merit. I accept that there were conflicting views in the evidence sessions on whether the director should have legal experience—personally, I believe that that is necessary—but surely we can all agree that the position should be awarded on the basis of merit, as defined by the Government’s own governance code.

I mentioned the appointment of Ewan Fergusson, the friend of the Prime Minister. One hundred and fifty people were candidates for that position. The fact of a close friendship between Ewan Fergusson and the Prime Minister is a good reason for that person not to be appointed. Certainly, were I in that position, I would not be appointing friends, for the very reason that perception is everything—for credibility, perception is vital. I urge the Minister to consider the inclusion of our proposal in the appointments process for the director and to look further into how to protect the appointment from political persuasion. That was my final point.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 11:00 am, 22nd September 2021

The simple point is that this is possibly one of the most contentious appointments in government, because it deals with contentious issues. Without some element of robust non-partisan protection in the appointment process, the whole operation of the Bill might be undermined. That is why extra safeguards are needed to ensure a buffer between the individual and party political activity. That is what one of the amendments seeks to address.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Historically, universities were set up by royal charter, specifically to ensure that Governments of the day were not meddling in appointments at university and that free speech was thus preserved. That was the ancient, as well as the more modern right of universities. Surely there is a requirement for those principles to be extended to the body that will now interfere in the operation of universities. Otherwise, we undermine the whole principle of independence, autonomy and therefore free speech in our higher education sector.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I caution Government Members. There have been reports recently of a pattern of behaviour by Government of making appointments of, in effect, members of and donors to the Tory party—some have described them as cronies. That evidences, I think, an attitude in some parts of Government that overrides the very principles that my hon. Friend refers to and, to be honest, the traditional practice that we have come to expect of Governments. We are nearing a limit on that.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

It is worth pointing out that we have no written constitution in this country. Everything we have is based on practice and tradition, because of the lack of a written constitution. Our university sector has always acted as a counterbalance to any Government of the day in offering criticism and scrutiny, forming another counterweight in our democracy. Any attempt to undermine that by politicising it through a political appointment exercising the powers in the Bill should concern each and every one of us. Governments and parties change and, as I said before and was agreed with, the people sitting on the Government Benches would be very concerned if the proposals in the Bill were those of the Labour party and we were wishing to exercise the kind of political control over the universities of the day that the Government do with this Bill.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

To follow up on that point, we and a large number of organisations and individuals will be extremely interested in the appointment of this individual. If there is any whiff of a political appointment, it will completely undermine the Bill and the Government’s intentions, whether we agree with them or not—I caution them on that point. That is why building additional safeguards into the Bill is important.

I have been a strong supporter of the establishment and development of Select Committees. As shadow Chancellor, I argued for a greater role for Select Committees in the formal appointment of the Governor of the Bank of England and others. If we cannot secure the role of the Select Committee in the confirmation of an appointment, it would be valuable to hear the Minister’s views on a pre-appointment hearing. As the hon. Member for Ruislip, Northwood and Pinner said, that would at least provide an opportunity for greater scrutiny of the individual and the process.

I caution the Government. There is often an element in a piece of legislation that can unpick the whole of the legislation’s import. I think this is a banana skin waiting to be stood upon if the Government are not careful and do not ensure that the process is above reproach and free from any party political interference. That could poison the well altogether.

Photo of Kevan Jones Kevan Jones Labour, North Durham

As I have already stated, I have deep concerns about the Bill. It comes back to what we define as freedom of speech. In the evidence sessions, we found different views and different incidents, in terms of no-platforming and organisations being stopped from using buildings. The hon. Member for Congleton raised Christian Concern. I have read its website. It holds some quite extreme views, and I could understand why it would cause offence to certain students. In my opinion, it is down to the institution whether they allow such an organisation’s event to take place. For example, a gay student would be concerned that the organisation in question was questioning things such as the ban on gay conversion therapy. I understand why people might think that is what their institution should be about—disagreements.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I am actually very glad that the right hon. Member mentioned that point. That is the other issue that was mentioned in the press report that appeared to cause concern to the students who complained about it. Conversion therapy is going to be the subject of a Government consultation. It is a current, contentious issue, on which people have different views.

Photo of Kevan Jones Kevan Jones Labour, North Durham

They do. I think it is up to an institution whether they allow people to complain, if they want to complain about that. I am a bit concerned that Gerald Batten, a former UK Independence party leader, who has some quite horrific views on Islam, for example, wrote the foreword to one of the organisation’s documents. Putting that point to one side, people can complain about these organisations, which is good. I personally think it is down to the institution to decide whether it should allow its buildings to be used.

As I have said before, the reason the appointment is so important is that the individual will have a lot of power in deciding what is defined as freedom of speech. In the Bill, we skirt around the issue; we have not got a clear definition of freedom of speech. We know from the discussions that we have had in Committee that the definition varies between different individuals. The right hon. Member for South Holland and The Deepings, whom I have huge respect for, said that it is about people’s principles. That is what concerns me, because people’s principles are very different, and that is the problem. Today, it will be the Conservatives who can make political appointments, because they have a majority in this Parliament. They can appoint who they wish. But what happens if we have a Government of a very different complexion—they could be extreme right or extreme left—who want to put forward someone who will interpret the definition of freedom of speech? That could have a chilling—I will use that word again, because it is the in word—effect on the way the state or the Government of the day dictate to independent institutions what they can and cannot discuss, and what they can and cannot do. I say again that the Bill is very unconservative in that respect.

I do not think my hon. Friend the Member for Warwick and Leamington is asking for something radical. I know it is out of favour with the current Government, but he is basically saying that we should have a system underpinned by the Nolan principles. Sir Christopher, you are long enough in the tooth to know why those principles were brought in. Let us be honest: they were brought in during a very squalid period of our history in the early 1990s, when individuals connected to the Government of the day were involved in some quite unsavoury practices. I am always wary that things such as the Nolan principles should not become like tablets of stone. However, they have served us as a nation well, not just for national appointments, but in local government and other institutions. We should ensure that people are appointed on merit and because of their abilities and expertise in an area.

If the Government’s current direction of travel is to ignore the Nolan principles in large part, I would be quite relaxed about it, but we have a Prime Minister who is determined to put a Government stamp on an array of institutions, from museums right through to universities. It concerns me that we do not have safeguards in the Bill as regards an individual who will have a lot of power.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I am grateful to the right hon. Gentleman for his remarks about me, which he knows are reciprocated. He is always worth listening to and has great experience, both in this House and in Government. However, almost in the same breath, and certainly in the same intervention, he challenged the idea of principles—I was quoting Dr Ahmed about that, by the way—and then made a case for the Nolan principles. He is implicitly accepting that there is a series of measures that can be established and that are the proper means by which the new director can do his job. If we can devise and implement the Nolan principles, I am sure the new director would advise and implement principles in a similar vein.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I thank the right hon. Gentleman for his intervention, but he is confusing people’s political principles with the Nolan principles. If Dr Ahmed was suggesting that the Government believe passionately in the Nolan principles, I would have no problem with that, but I do not think that is a fair interpretation. Do the Government have form in this area? They clearly do in the appointment of Lord Wharton as the head of the Office for Students. I actually quite like the individual as an individual, but what are his qualifications for that job, apart from having been the former Member for Stockton South?

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

On the point about qualifications for the job, it would be helpful if the Minister could say whether those involve having legal knowledge and an understanding of the sector, which are things that much of the written evidence stated were needed.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Another qualification might be being a very keen supporter of the Prime Minister on Brexit. However, in response to my hon. Friend, yes, we need that, and we are flying blind on the job description. It is quite common for public appointments to have a job spec. I have been involved in appointments, and we usually use that in the process.

What usually happens, in the best of practice, is that the selection process is done blind—the names of the individuals are not included and just the CVs are looked at. I doubt that that was the case with Lord Wharton, because I am not sure he would have passed the tests for the individuals. Do I have a problem with political appointments? No, I do not—but say they are political appointments. That is fine, if the Government want to do that.

What is particularly important about this role, however, is that this individual will have a lot of power to determine interpretations of free speech and what is discussed on our campuses. When the Bill becomes an Act, it will tie the courts up for years, frankly, because case law will bounce backwards and forwards on some things, and the role of the director will be challenged on numerous occasions. With no disrespect to any lawyers in the room, anything that feeds lawyers I have a gut distaste of, and the Bill will do that. A blatant political appointment cannot be right.

The Bill will be stronger if it has a system to ensure that the individual is independent, using the Nolan principles. I cannot understand why the Government are opposed to that.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education) 11:15 am, 22nd September 2021

Amendment 85 seeks to ensure that the director is a person who has not donated to any political party in the last three years, and it would prohibit the director from making donations to political parties for the duration of their tenure. New clause 9 seeks to set out additional requirements for the appointment process of the new director for freedom of speech and academic freedom at the Office for Students, requiring approval by the Education Committee and that the Secretary of State take into account the views of an independent advisory body. New clause 11 would require the Secretary of State to conduct a review of the appointment process for the director within six months of the calling of a new Parliament. That review would assess the suitability of the process for selecting politically impartial candidates. The Secretary of State would be required to lay a copy of the review report before Parliament.

The director for freedom of speech and academic freedom will be appointed in the same way as other members of the board of the Office for Students, under the Higher Education and Research Act 2017 by the Secretary of State. I assure Members that that will be done in the usual way, in accordance with the public appointments process. I emphasise, as has been demonstrated in our sittings, that freedom of speech and academic freedom are fundamental principles in higher education; they are not the preserve of one political party.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

The Minister is genuinely very generous in giving way. She always lets me in, and I appreciate that. Will the job description for this brand-new role be written, as discussed previously, in consultation with the sector, including the National Union of Students, so that we get the right description to ensure that we get the right person?

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

Throughout my tenure as Minister of State for Universities, I have worked closely with the sector, listening to its views and its requirements for the role, as the Department has done. We will continue to do that.

Photo of Matt Western Matt Western Shadow Minister (Education)

On the appointment and the process, the Minister was in place as the Minister of State for Higher Education for the appointment of Lord Wharton. What were the skills and expertise that got him the job?

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

We are going very off topic. We have a lot of clauses to get through, so I will continue.

There will also be important oversight built into the system when the director has been appointed. The director will be responsible for reporting to other members of the OfS on the performance of the OfS’s free speech functions. That reflects a similar provision in paragraph 3(1)(c) of schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for

“reporting to the other members of the OfS on the performance of the OfS’s access and participation functions.”

That will not only ensure oversight of the role of the director for freedom of speech and academic freedom, but the rest of the OfS board will also allow the OfS to better co-ordinate and monitor its free speech functions.

I therefore hope that Members will be reassured that the appointment of the director will be in line with the usual public appointments process and that the role of the director is ultimately overseen by the rest of the OfS board.

Photo of Matt Western Matt Western Shadow Minister (Education)

This has been an important debate. As we have said, this will be way too much power invested in one individual. That will then lead to that individual’s interpretations of situations against their personal set of values and principles.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

Hopefully, the next time the Minister stands up she might be able to clarify whether the appointment of the director for freedom of speech and academic freedom will be subjected to a pre-appointment process with the Education Committee, in the way that Amanda Spielman was when she was appointed to Ofsted, for example, and in the way that the Committee deals with other educational appointments? Will we have that pre-appointment hearing?

Photo of Matt Western Matt Western Shadow Minister (Education)

Indeed. The purpose behind new clause 9 is to have a process whereby the appointment goes through the appropriate body in the House of Commons, which we suggest is the Education Committee.

The bottom line is that we do not see any safeguards in the process. We do not see any checks or balances to ensure that this individual does not abuse the power and influence that they may weald. It is important to have some trust in the appointment process, which is why new clause 9 says the appointment should go through the Education Committee, ideally with some pre-appointment consideration. There are many advantages to that, not just in terms of the power to veto.

The Education Committee should have more say anyway. It is important to empower these bodies, as my right hon. Friend the Member for North Durham described when he talked about the veto processes that exist in the US system but that we seem to ignore completely. Those are the sorts of checks and balances that we want to see introduced.

Photo of Emma Hardy Emma Hardy Labour, Kingston upon Hull West and Hessle

The reason for talking about the Education Committee is that people said in some of the evidence that they wanted democratic oversight. We are fully aware that the Education Committee is balanced by who has the majority in Government, so there would currently be a Conversative majority, but it is still an important democratic safeguard to have a separate body to scrutinise the appointment and have a veto. I hope that is something the Minister will take away and seriously consider.

Photo of Matt Western Matt Western Shadow Minister (Education)

I am sure that the Minister is listening to these points. I think the Education Committee should have certain powers and status, and its involvement in these processes would be useful. I would even widen this to a broader panel if possible, with sector involvement as well, because experience, expertise and understanding of the reality on the ground is important. Having someone parachuted in because their political persuasion suits the Prime Minister is not a good way to govern such an important part of our democratic landscape.

The concern is that there will be a clear differentiation between—

The Chair adjourned the Committee without Question put (Standing Order No.88).

Adjourned till this day at Two o’clock.