Schedule - Minor and consequential amendments

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee at 2:15 pm on 22nd September 2021.

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Amendments made: 17, in schedule, page 13, line 25, leave out from “subsection (1),” to end of line and insert—

“for ‘a provider’ substitute ‘a registered higher education provider, or a students’ union,’”.

This amendment is consequential on Amendment 18.

Amendment 18, in schedule, page 13, line 27, leave out “provider,” and insert—

“registered higher education provider or of a constituent institution of such a provider,”.

This enables costs recovery from constituent institutions in connection with the complaints scheme.

Amendment 19, in schedule, page 14, line 6, after “provider” insert “, constituent institution”.

This amendment is consequential on Amendment 18.

Amendment 20, in schedule, page 14, line 43, at end insert—

“(aa) after the definition of ‘a fee limit condition’ insert—

‘“constituent institution”, in relation to a registered higher education provider, has the same meaning as in Part A1 (see section A3A(4));’;”.

This defines “constituent institution” for the purposes of Part 1 of the Higher Education and Research Act 2017.

Amendment 21, in schedule, page 15, line 46, leave out sub-paragraphs (2) to (4) and insert—

“(2) In paragraph 1, for the words from ‘in relation’ to the end substitute ‘where under section 73 the OfS imposes a requirement to pay costs on—

(a) the governing body of a registered higher education provider,

(b) the governing body of a constituent institution of a registered higher education provider, or

(c) a students’ union.’

(3) In paragraph 2—

(a) in sub-paragraph (1)— in sub-paragraphs (3) and (5), after ‘governing body’ insert ‘or students’ union’.

(i) after ‘governing body’ insert ‘or students’ union’;

(ii) for ‘73(1)’ substitute ‘73’;

(4) In paragraph 3(1) for ‘of a provider’ substitute ‘or students’ union’.”.

This amendment is consequential on Amendment 18.

Amendment 22, in schedule, page 16, line 15, at end insert—

“(1A) In subsection (1)—

(a) in paragraph (b), omit the final ‘or’;

(b) after paragraph (b) insert—

‘(ba) a constituent college, school or hall or other institution in England or Wales of an institution within paragraph (b), or’.”.

This amendment aligns section 31(1)(b) of the Counter-Terrorism and Security Act 2015 with the concepts used in the Higher Education and Research Act 2017, in order to facilitate the Minister’s other amendments to Part 2 of the Schedule.

Amendment 23, in schedule, page 17, line 4, leave out from “provider” to end of line 7 and insert—

“or a constituent institution of such a provider has the meaning given by section 85(6) of the Higher Education and Research Act 2017;”.

This amendment and the Minister’s remaining amendments to Part 2 of the Schedule clarify how section 31 of the Counter-Terrorism and Security Act 2015 applies in relation to constituent institutions of registered higher education providers.

Amendment 24, in schedule, page 17, line 13, at end insert—

“‘constituent institution’, in relation to a registered higher education provider, has the same meaning as in Part A1 of the Higher Education and Research Act 2017 (see section A3A(4) of that Act);”.

See the explanatory statement to Amendment 23.

Amendment 25, in schedule, page 17, line 22, leave out from “provider” to end of line 24 and insert—

“(aa) a constituent institution of such a provider, and”.

See the explanatory statement to Amendment 23.

Amendment 26, in schedule, page 17, line 28, at end insert—

“(e) after the definition of ‘qualifying institution’ (inserted by paragraph (d)) insert—

‘“registered higher education provider” has the meaning given by section 3(10)(a) of the Higher Education and Research Act 2017.’”.—(Michelle Donelan.)

See the explanatory statement to Amendment 23.

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

I beg to move amendment 70, in schedule, page 17, line 36, at end insert—

“14A After section 32, insert—

‘32A  Section 26(1) duty: exception for higher education providers

For the purposes of section 26(1) of this Act, the obligation to have due regard to the need to prevent people from being drawn into terrorism shall not apply to any decision made by a registered higher education provider that directly concerns:

(a) the content or delivery of the curriculum;

(b) the provision of library or other teaching resources; or

(c) research carried out by academic staff

We have had a useful debate on the principles of the Bill. A difference between us has emerged during that debate, which is essentially the difference between those of us who think the Bill is essential, because we think there is a prevailing problem that we need to address—that was reflected to some degree in the evidence we received from Professor Biggar, Dr Ahmed, Professor Kaufmann, Professor Goodwin and so on—and those who take the opposite view, that there is not a problem and, if there is, it can be dealt with by existing means.

My anxiety in all of these matters is to bring clarity to the Government’s intentions. I have made that point throughout. We have been reassured by the Minister a number of times that she is listening to the Committee and will go back and reflect further on the points that have been raised. We have also heard that much will be made clearer in guidance. That is not uncommon in this place. Over many years, as a shadow Minister and Minister, I have encountered many occasions where the implementation of a Bill, particularly when breaking new ground, has required that guidance be issued. It is right and important—if I were the Opposition, I would be making this point—that that guidance is made available at a time that allows it to be scrutinised. I understand that argument, and it is a perfectly reasonable one.

However, equally, from the point of view of good governance, it is important that the guidance—based on the discussions and consultations that will no doubt take place, as the Minister has assured us, between the sector and Government—is iterative and that it reflects those discussions and marks those consultations. I am not as concerned about that as some, because I assume a degree of good will in that respect.

My view about the Bill and the Committee is that, as was said by Members from across the House, our task is to improve the legislation during its passage. That is precisely what I have tried to do in the amendment. For me, it is about certainty and clarity and about establishing an environment where universities and others will be confident that the new regime is one that will deliver the outcomes we want, which is to facilitate and, indeed, to guarantee free speech on campuses across the country.

I am a supporter of the Bill, and the amendment, as hon. Members will see, is a helpful one. It is not designed to do anything other than to improve the legislation. I am also mindful that all Acts are rather different from the Bills they begin as. No Act of Parliament is quite like the Bill that is published; they all metamorphosise during their passage and improve as a result of that metamorphosis. So, the amendment, which is straight- forward, is designed to provide greater clarity, build the certainty I have described and also mark the progress of the Bill. Once the Bill becomes an Act we need to measure its effect. I have argued throughout the Committee for greater clarity, for greater certainty and for more information to be provided.

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

The amendment talks about the Prevent obligations, which are not an Act in themselves so are subordinate to Acts, not being applied for purposes of research, delivery of the curriculum or teaching. Can the right hon. Gentleman give some examples of how he would want this to be applied? We are not quite yet clear on this side of the Committee about whether that is something we would be positively happy with because we are not clear on how the he sees it being implemented.

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

The hon. Gentleman has not only anticipated fully my preliminary remarks, but the essence of my amendment and my speech. I was about to say that my efforts are to improve the legislation and ease its passage to create the certainty and clarity I described. The hon. Gentleman will not necessarily know this, but as Minister for Security at the Home Office, I introduced the Prevent duty. Prevent was a long-standing part of our strategy to deal with counter-terrorism, as he will know, but I introduced the change to oblige local authorities, schools, the health service, community organisations and others to identify, where they might, people who were vulnerable to the overtures of terrorists or who were possibly dangerous already in those terms. We are talking here about potential terrorists and the hon. Gentleman will know that the way the Prevent duty works is that when those people are identified, a process begins, which may end up in them being referred to the Channel programme. The Channel programme is designed to counter the activities of extremists and others who wish to groom those individuals.

I emphasise this for the sake of clarity. The process by which terrorists are recruited, either directly or, especially these days, through the internet, is a grooming process. I use that word advisedly. It is not unlike the process employed by sexual predators; lonely individuals are often identified and, through the activities of those who seek to corrupt them, are drawn into activities that can be so serious that they end in terrorist violence. The Prevent duty was designed to identify those people.

There is some evidence that it is being interpreted very differently by different organisations. There was a very recent case, and I shall not comment too much on it because it is still sub judice in an employment tribunal, of a school chaplain who preached a sermon and amazingly—extraordinarily—was referred to the Prevent programme by the school management. He may have had contentious views; he may indeed have even caused offence. I talked at the very early stages of our consideration about the right to cause offence, to alarm, to disturb. That is an important part of freedom. It is not something we would necessarily want to do ourselves, but it is an important part of a free society. However, he certainly was not a potential terrorist by any means or measure.

The matter was taken no further, I hasten to add, because Prevent co-ordinators are well equipped to gauge and judge whether such a reference is appropriate or mischievous. Nonetheless, it is really important that we are clear that the Prevent duty should not be used in that way, and that we separate—as this amendment does —the provisions of this Bill from any misunderstanding, and that we are absolutely clear about the parallel legal imperatives associated with the provisions of this Bill and the Prevent duty.

As I said, I hope to improve the legislation. This is largely a probing amendment, so I do not anticipate dividing the committee, as the Front Bench will be pleased to know.

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

I see the Whip is nodding. It is important that we are clear about how the Prevent duty operates in practice; the intent of that duty; and the relationship between that and the provisions of this Bill.

We have already spoken about the necessary consistency in the application of these provisions. We have also spoken about the interaction, the interface between these new legal responsibilities and existing law, particularly in respect of the Equality Act 2010. More generally, it is important that this fits with other legislation when it becomes law. That is always a challenge for the Government because Ministers and Governments inherit a statutory landscape not of their making. That is not always a straightforward process. However, by improving legislation in this metamorphosis we can address that issue. That is what I am trying to do with the amendment. I do not know whether it is perfectly worded; I do not know whether it could be improved.

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

The right hon. Gentleman has clarified his thinking for me, which is very useful. I am not sure about some of the detailed wording, but that is the point of a probing amendment, is it not? I wonder if he would like to reflect on the interesting contradiction that the Prevent duty does not apply to student unions, but it does apply to the institutions. This amendment applies to both. When the right hon. Gentleman was Minister, did he consider why the Prevent duty was only on the institutions? Why did he not extend that duty to the student unions, and why is he now supporting this Bill, which does the opposite?

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

I spend a good deal of my time contemplating what I think now, and I occasionally contemplate what I thought once. However, the longer one has lived, the harder that becomes. I could not say with absolute conviction that I recall the considerations I made in years gone by. It is complicated, in my case, by the fact that I have held a lot of different ministerial offices, and dealt with a lot of legislation over a lot of years. I said to the Labour spokesman that I have sat many times where he sits today, and, while it is tough being a Minister, it is pretty tough being a shadow Minister too.

I hope I have made it clear that my intention is positive; good Committees are about responsible progress being made—to that end I do not want to delay the Committee any further. This is a probing amendment to clarify, and make straightforward, the relationship between these legislative imperatives, so that the universities know precisely what is to be done. Finally, I send this signal out again: the Prevent duty is not about curbing free speech, it is about identifying potential terrorists. It is no more or less than that. It should not be under-interpreted, because we need to find those people before they do harm. However, it should not be over-interpreted as a backdoor means of closing down free and open debate.

Photo of Matt Western Matt Western Shadow Minister (Education)

I thank the right hon. Member for South Holland and The Deepings for the clarification in the points he has put forward. I found reading what he was proposing a bit troubling, but I understand much more, having now listened to him and to the responses that have been made by colleagues. The right hon. Gentleman had already alluded to the fact that, under Prevent duties, specified authorities are required to have a due regard to the need to prevent individuals being drawn into terrorism. This applies to higher education institutions, local authority schools and further education institutions, as well as the health sector, prisons, probation and police services. I may have got this wrong, but my understanding was that there was a provision prior to the coalition Government’s introduction of the Prevent duty, and it was an enhancement of this that came in through the office of the right hon. Gentleman.

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

The difference was the statutory basis of what we did. I think there was a provision prior. Prevent is a longstanding part of the Contest strategy, which is the means by which counter-terrorism efforts are delivered. We specified in statute a new duty—that is the difference.

Photo of Matt Western Matt Western Shadow Minister (Education)

I thank the right hon. Gentleman for the clarification. As he has said, in essence this was a policy introduced by the coalition Conservative Government. I am interested to hear what the Minister’s view is in response to this amendment.

I have read that, in the view of Corey Stoughton, director of advocacy at the human rights organisation Liberty, the tactics of the strategy for monitoring campus activism has had a

“‘chilling effect’ on black and Muslim students, provoking self censorship for fear of being labelled extremist.”

We have to be very careful here, because blanket exemption is just as bad as blanket application. I have looked through the responsibilities of universities, which already have done very well to balance freedom of speech with the Prevent duty. My hon. Friend the Member for Brighton, Kemptown and I have discussed how the Nottingham Two incident—the right hon. Gentleman may be familiar with it—played out, and how such situations can be avoided. There must be an obvious method of ensuring that academics can research these subjects, whether it be the cultural impact of drugs or the impact of certain political movements, without the police knocking on the door. I would have thought that an obvious way of avoiding problems and difficult situations on campus would be to introduce processes to allow academics to make their governing bodies and departments aware of their work.

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

I believe I understand what the right hon. Member for South Holland and The Deepings is trying to do with this amendment, but I return to our previous point that the big problem with this Bill is how it interacts with other pieces of legislation, and what impact it will have. That is why we talked about putting into the Bill the other pieces of information that we have mentioned. I am sure the Minister will refer us to guidance that is coming shortly to deal with this. The Bill does not exist on its own, so, as my hon. Friend says, the implementation will be incredibly complex. That goes back to the points we made this morning about who the person will be who has to try to decipher this very complicated piece of additional legislation.

Photo of Matt Western Matt Western Shadow Minister (Education)

Exactly that—it is about how this Bill will play with existing legislation and how the responsibilities will be balanced. The fact, and the overriding argument, is that institutions in the higher education sector have done an amazing job of balancing the obligations and the competing freedoms that exist on our campuses, and they have done so with very few problematic exceptions. It will be interesting to see how this individual and their department will handle that. I do not hold out a huge amount of confidence and hope in what they will do, but I will be interested to see what the Minister says in response to the amendment, and we will hold fire until we have heard her words.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I have a problem with the amendment, because I think there is a lot of misunderstanding around the Prevent agenda. It is one of the four p’s—prevent, pursue, protect and prepare—which are, as the right hon. Member for South Holland and The Deepings has just said, part of the Government’s Contest counter-terrorism strategy. The principles that underpin it are democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs, and of those who hold none. I do not understand how it would be a problem for the director or any other institution to have to take into account issues surrounding Prevent.

It would be problematic if we started to take people out of legislation. Prevent is clearly designed to identify individuals who are at risk, and having met—in another role—the people who co-ordinate Prevent, I know that they are very skilled at ensuring that only those who need the programme are put through it. I accept what the right hon. Gentleman said about the vicar, but I am not sure that the amendment would prevent him—pardon the pun—from being referred anyway; that is more about training and ensuring that those whose duty it is to operate Prevent actually understand it. Will we get the odd case of people being referred when they should not be? Possibly, but that does not mean that those cases will be taken any further. I am sure the vicar was not taken any further just because somebody thought that he had failed in the Prevent duties.

I do not think there is any need for the amendment. The principles underpinning Prevent go to the core of the Bill, which talks about freedom of speech, democracy and everything else.

If we were to try to carve this out, I would not want to weaken the Prevent programme in any way. It has its many critics—some who do not understand it, and others who, for their own reasons, want it to be undermined —but there should clearly be a duty for institutions to train staff and ensure that they know their duties under Prevent, so that people do not get referred wrongly. I do not think the amendment would help, and I cannot see any problem at all with keeping the existing Prevent regulations alongside the Bill.

The amendment is unnecessary and would create problems, because people would have to interpret whether someone should be referred to Prevent, and that would be difficult. I have met individuals who run Prevent programmes in different guises, and they are experts. If someone is referred but does not meet the criteria, they will soon not be part of the Prevent programme. I do not think there is any danger of people being put forward in error.

In the light of the example that the right hon. Member used, I suggest that he stops reading certain newspapers. We have a tendency whereby if someone says X, suddenly it is a huge problem. Well, perhaps it was for the poor vicar who was referred, but it did not actually end anywhere. It is like when we read sensationalist stories about people taking stupid cases to court for compensation. The cases have no foundation in law and are thrown out, but the headline is about someone taking the council to court over some spurious claim; rarely does the story explain the background of the case or the fact that the court threw it out. The same would be the case for many of the referrals. In my experience of speaking with the people who run Prevent, people who are referred but who do not meet the criteria do not go any further, so I do not see any need for the amendment.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown 2:45 pm, 22nd September 2021

I declare my usual interests with the University of Bradford, the University of Sussex, and the University and College Union.

When I first saw the amendment, I was slightly confused —[Interruption.]

Sitting suspended for a Division in the House.

On resuming—

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

When I first saw the amendment, I was slightly confused about its purpose. The idea that the Bill ought to refer to contradicting or overlapping—however one might phrase it—legislation and sets of guidelines is something that we have proposed in previous amendments, which I feel were slightly better worded.

I put it to the Minister that we need in the Bill a recognition that there are contradictory guidelines and that there will be guidelines to explicitly outline how duties and laws at universities will interact. That would relieve of a lot of pressure. We want surety that the guidelines will have that element to them in perpetuity, so that whatever new Government or office comes in, the guidelines will always outline how the Acts and duties interact with each other.

In that sense, I understand and agree with the spirit of the amendment, but the Bill probably needs something that goes further and has more detailed wording. I also understand that there have sometimes been cases in which either the Prevent duty as it is now, or the Prevent programme as it was, was used and had a chilling effect. We have heard that from different organisations. The Nottingham Two have been mentioned; that was a case of a PhD student researcher and a lecturer at the University of Nottingham. The university felt that it was its duty to report them to the police; they were arrested for downloading and disseminating the al-Qaeda manual and were refused bail for a period of time. There has been a lengthy court case on that. Compensation was paid to the two individuals because they were researching how terrorists radicalise people—the very thing we need researchers to be working on.

The law has helped to correct itself through the court process. I am not diminishing the awful effect it must have had on the two researchers, but they have received compensation and to some extent, unfortunately, these things do happen. Most institutions have already corrected their reporting mechanisms to ensure that that kind of thing does not happen. I am sure the example right hon. Member for South Holland and The Deepings gave us of the chaplain will be a one-off example that will help us to correct in the other direction as well. Those correction moments are sometimes needed, rather than using statute or legislation to do it.

One thing that should perhaps be included in guidelines is some idea of a process for when you are dealing with contradictory things, such as something that might breach the Equality Act but is necessary to talk about difficult issues that are discriminatory, or that might breach the Prevent programme in a literal reading, rather than its intended spirit. It is the same in universities when dealing with issues that might trigger a safeguarding process; a lecturer or researcher would write to the university to explain what they plan to do in order to get prior authorisation.

Photo of Kevan Jones Kevan Jones Labour, North Durham

There are no key principles for how somebody gets referred to Prevent; it is actually about assessing someone’s vulnerabilities and a pattern of behaviour. There may be an example raising one issue that would automatically get people put into Prevent, but I think the structure is already there.

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

I totally agree. However, an example might be if a lecturer wishes to run a course about Islamic radicalisation. They might say to the university, “I need some extra safeguards put around this course because of the students it might attract and the topics we might be dealing with. It is important to teach this course for academic rigour, it is important to understand these issues, but it might attract people to join the course for undue reasons.” That is not to stop them from doing it; it is just to make sure there is a safeguarding approach. All of that kind of stuff needs to be in the guidelines, not here. I hope that that is what the Minister will say. I think a safeguarding, prior notification approach is what is needed here.

I did want to touch on the interesting contradiction brought up by this amendment. Prevent—although there is debate about its understanding and its use, I do not think that is relevant here—is an important programme to try to safeguard and stop the radicalisation of people in our country. However, it applies to the institutions, and the institutions cascade to bodies that work within them, such as student unions. It does not apply directly to student unions in terms of the duty. This does, which is an example of where this Bill overreaches.

If the Bill is going to have a deeper, more intrusive reach than the Prevent programme, we need either to revisit the Prevent duty or to say that this Bill is a bit of an overreach, that it is not necessary for it to be regulating as deep down as student unions and student clubs. This amendment helps to highlight that. That is an argument I have made many times in this Committee, so I will not go any further on that point.

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

Under amendment 70, higher education providers would not have to comply with certain academic decisions such as those concerning delivery of curriculum or research in relation to the Prevent duty. The Government are clear that the Prevent duty should be used not to suppress freedom of speech but to require providers, when exercising their functions, to have due regard for the need to prevent people from being drawn into terrorism. There is no prescription from Government or the Office for Students on what actions providers should take once they have that due regard.

Specific guidance has been published by the Home Office on how higher education providers should comply with the Prevent duty. The legislation imposing the Prevent duty in higher education already specifically requires that providers have particular regard to the duty to ensure freedom of speech and the importance of academic freedom. That means that providers already have special provisions on the application of the Prevent duty to enable them to take proper account of academic freedom, so there is no need for this amendment to go further.

The Government have commissioned an independent review of the Prevent duty and are looking at how effective the statutory the Prevent duty is, to make recommendations for the future. I hope that reassures the Committee.

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

I find the Minister perpetually reassuring, so that is a good starting point. The anxiety is that research is curbed, materials that might be accessed by students are in some way constrained and activities on campus are curtailed, particularly around research and new courses that, by their nature, are contentious. We have heard some examples so I will not repeat them. There are fears in universities that the authorities will not allow academics to run a course in a controversial area or commission research that might be deemed by some to be awkward or embarrassing. That is not in the spirit of academic freedom that I think we all want to engender in our universities. My intention with the amendment was to protect that academic freedom.

There is a problem with Prevent; I am a great supporter of it, as is the right hon. Member for North Durham, but there is an issue on which the review of Prevent might focus. It is the number of referrals and whether all those referrals are appropriate. That is a different debate for a different place, with different people.

On the basis of the Minister’s reassurance, the healthy debate we have had on the subject and that we need to make progress, with my mission to clarify and bring certainty to this legislation, I happily beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule, as amended, be the schedule to the Bill.

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

The schedule contains minor and consequential amendments to other legislation and is brought to effect by clause 9. As we discussed, the consequential amendments are necessary to give effect to the main provisions of the Bill and make all the legislation work together seamlessly and consistently. Therefore, it will contain amendments to other legislation that are necessary for the operation of the many measures of the Bill.

Question put and agreed to.

Schedule, as amended, accordingly agreed to.