Higher Education (Freedom of Speech) Bill

Public Bill Committee, 15 September 2021.

Christopher Chope (Conservative, Christchurch)

We will now start dealing with amendments. These proceedings are being broadcast, and I think that the best way forward is for people to learn from their mistakes during proceedings, if they make any, rather than for me to remind them of the procedure at the beginning.

Clause 1 - Duties of registered higher education providers

Matt Western (Labour, Warwick and Leamington)

I beg to move amendment 50, in clause 1, page 1, line 8, leave out from beginning to “must” and insert:

“Every individual and body of persons concerned in the government or management of a registered higher education provider”.

This amendment expands the duty on a governing body of a registered higher education provider to take steps that are reasonably practicable to secure freedom of speech within the law to include any individual or body of persons concerned in the government or management of a registered higher education provider.

I thank you, Sir Christopher, and your co-Chair, Mrs Cummins, for your chairmanship up to this point. I also thank the Clerks for all their work keeping us in order and for putting everything together.

I have not checked the numbers this morning, but it is interesting that some 84 amendments and counting have been tabled. That underlines the fact that many of us, especially Opposition Members, have profound reservations not only about whether the Bill is needed but about its extent and its detail. If it was a dog’s breakfast before, it looks like a bit of a canine meal plan this morning.

Amendment 50 covers a small but important detail. We are here to be constructive and to try to make the best of the Bill, and this is the first example of that. We are seeking to broaden the meaning of the “governance” of an institution. We do not want it to be too narrow, or to simply mean the senate or board of trustees. Recognising the complex nature of modern higher education institutions, we want the term to reflect the wide array of professionals involved in university administration who should be subject to the legal requirement to uphold freedom of speech and academic freedom

It is important that we recognise the diversification of the management of the HE sector. It seems that the Bill’s wording is a carbon copy of the section 43 duty under the Education (No. 2) Act 1986. We have repeatedly heard from the hon. Member for Congleton about the need to develop the 1986 Act to reflect today’s reality, and that is what the amendment seeks to do.

All we are asking is that the legal duty be expanded to include anyone involved in the government or management of a higher education provider, rather than solely the governing body, as is the case in the Bill as drafted. The definition is far too narrow. It is the wording of yesteryear and does not reflect the complex nature and structure of the governance of the universities and higher education institutions of today. Indeed, Professor Stock said in her evidence that, thanks to the consumer dynamic, universities are presenting their best public relations face to prospective students, and that involves a plethora of people behind the scenes, including human resources professionals. Tom Simpson, likewise, in his evidence, stated:

“At the moment, the crucial question is the position of those involved in university leadership and administration.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 71, Q148.]

We wish to be constructive today and in the coming days, and will do our best to try to refine the Bill to make it workable. We do not believe clause 1 is absolutely necessary, but we will do our best to refine it and make it practical. That is what amendment 50 seeks to do.

Michelle Donelan (Conservative, Chippenham)

I, too, thank the Clerks for their work in facilitating this Committee.

Amendment 50 would reinstate the wording currently in section 43(1) of the Education (No. 2) Act 1986, where the freedom of speech duty applies to individuals and bodies involved in a higher education provider’s governance or management. The approach in the Bill, which is to impose the duty on the provider’s governing body, is taken for a number of reasons. A key plank of the Bill is introducing new enforcement measures, including a new Office for Students complaints scheme and a statutory tort. In the light of the potential for tortious liability, it would not be appropriate for the duties to apply to any individual in that management. It should be the provider that is held responsible by the OfS or the courts. Of course, the provider will generally be liable for the acts of its staff in any event, so the change in emphasis will not necessarily make any difference on the ground. The provider will require its staff to act in accordance with the duty, as it will be held liable for their conduct. This approach mirrors other statutory duties imposed on the governing bodies of higher education providers, for example under the Equality Act 2010. It therefore makes sense for the same body to be responsible for all relevant duties under consideration.

I hope that reassures the Committee that the amendment is not needed. The Bill ensures that responsibility for the freedom of speech duties will lie with higher education providers, and and that where they are found to be in breach of those duties, they can be held to account.

Matt Western (Labour, Warwick and Leamington)

I hear what the Minister says, but the amendment is not aimed at every individual in a higher education institution. It is specifically about every individual and body of persons concerned in the government or management of a registered higher education provider. The crucial point is that it absolutely is about those involved in the governance and wider management of the institution, not every individual within that university or higher education institution. I stand by the amendment and wish to push it to a vote.

Matt Western (Labour, Warwick and Leamington)

I beg to move amendment 51, in clause 1, page 1, line 9, leave out “importance” and insert “primacy”.

Christopher Chope (Conservative, Christchurch)

With this, it will be convenient to discuss amendment 43, in clause 1, page 1, line 10, after “speech” insert “and academic freedom”.

This amendment would require the governing body of a higher education provider to also have particular regard to the importance of academic freedom.

Matt Western (Labour, Warwick and Leamington)

As I said in my opening remarks, I believe that numerous small-detail changes to clause 1 that might make some difference can certainly be made, albeit that we believe that much, if not all, of this has already been written and is already in legislation. Nevertheless, changes can be made that could bring about a certain pragmatism and greater effectiveness to what is being proposed by the Government.

These two amendments involve just a couple of words. Amendment 51 relates to a perhaps slightly nuanced, but none the less important, interpretation. On the first Bill that I examined, I was in the company of the right hon. Member for South Holland and The Deepings, who was leading for the Government on their Bill on electric and autonomous vehicles. Listening to him and to others, I realised just how important language can be. The nuance of language is certainly important in both amendments.

Amendment 43 is quite specific and extremely important. I use the word “important”, and I am just about to examine the word “importance”. It is vital that we understand the significance of the amendment. The amendments address the relative importance of freedom of speech and academic freedom. We heard in the witness sessions that some people speak of a “chilling effect”, and it is interesting how language gets adopted and then becomes an assumed state. I think there is some appreciation that there are concerns out there and that things can and need to improve, but through the amendments I want to consider the weight we place on these two distinguishable concepts in the Bill, which arguably will affect how effective the Bill is at reducing the issues described by various witnesses.

Amendment 51 stresses the “primacy” of freedom of speech. Clause 1 inserts in the Higher Education and Research Act 2017 new part A1, which stresses that to secure freedom of speech within the law:

“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable”.

“Importance” is such an important word. Often, it is overly important and very subjective. What does it actually bring? As we heard during the evidence sessions, the importance that one person places on freedom of speech can vary, whether it be unparalleled—I am thinking of the evidence we heard from Professor Goodwin, and his desire to invite fascist groups such as the National Front to speak on campus, infringing upon the wellbeing of minority students—or limited. On the latter, I am thinking of the evidence from the vice-president of the National Union of Students, Hillary Gyebi-Ababi, and her explanation of the NUS no-platform policy for six proscribed bodies.

That is vague and subjective. We all think we know what is meant by importance or important, but how often have we read that something is important, when in fact we viewed it as not being so? That is why the concept of mere importance may be deemed to be too low a threshold. I propose to address that by elevating the threshold to one that is more objective and more concrete by using the word “primacy”.

In the oral evidence sessions, Professor Nigel Biggar, the Government’s own witness, addressed the concerns that freedom of speech would take primacy over academic freedom when the duty is balanced in practice. That is what I am seeking to address with my amendment. When asked by my hon. Friend the Member for Kingston upon Hull West and Hessle whether he would recommend that the Bill as written should deal with that imbalance, he replied: “Yes, I would.” That is pretty categoric. Primacy is absolute; that is the important thing. “Importance” is a value term, and that is why we will be pressing for “primacy” to be in the Bill.

Let me turn to amendment 43. Academic freedom and freedom of speech are of course interdependent, but they are also independent concepts. To avoid an imbalance of one in favour of the other, the values of both should be elevated to prime status, recognising the importance of both concepts simultaneously working with each other. That would address the policy objectives outlined by the Government in their Department for Education impact assessment: first, to

“embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus”

and, secondly, to ensure that

“staff are able to exercise freedom to question and test received wisdom”.

I believe that the two amendments are equally important, establishing primacy versus importance, but also stressing the vital nature of freedom of speech and addressing through this the policy objectives as outlined by the Government’s own Department for Education.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I thank all the Clerks for the work they have done on the amendments. I

Academic freedom came up from our witnesses time and again. I joked about it, but it is a truth that I managed to unite differing academics with wildly different opinions on many different issues on a single point: they all agreed that academic freedom was important and therefore should be on the face of the Bill. I will not keep the Committee long, but I am going to quote three of them.

Professor Stock “took it as implicit” that academic freedom was included within freedom of speech, but agreed that it was

“a bit confusing that ‘freedom of speech’ is the phrase.”

She went on to say that

“in terms of drafting, that could be clarified.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 12, Q20.]

When I asked whether we should have academic freedom in the Bill, she was supportive of the idea. Dr Ahmed agreed that if academic freedom was to be genuinely protected, it needed to be more explicit in the Bill. That was another of the Government’s witnesses.

Professor Biggar, another of the Government’s witnesses, said that

“academic freedom needs to have equal standing, because free speech and academic freedom are not the same things.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 29, Q54.]

He recommended that the imbalance in the Bill as written—that is, mentioning only freedom of speech—be addressed. He agreed with Taylor Vinters, whose submission has been referred to, that it was

“arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice”.

I hope that the Government will listen to their own witnesses who gave evidence on the importance of having both freedom of speech and academic freedom.

John McDonnell (Labour, Hayes and Harlington)

I rise to make a general point and a specific point. The general point is that you, Sir Christopher, have been around for longer than me and you know how these Committees work: we can either work together to improve the legislation or we can all turn up and allow individuals to speak while the rest do their correspondence. I hope that this Committee will be one that works together to improve the legislation.

I do not support the legislation in principle. It is unnecessary, over the top and a hammer to crack a nut, but the Government have a right to introduce their legislation. They have a big majority and therefore the legislation will go through in some form. The responsibility therefore falls upon us all to try to ensure that it does so in a form that is implementable and does not cause problems in the future. We have to take that attitude on the Bill, and work together to improve it. This first stage is part of that test.

We listened to a large number of witnesses, chosen cross-party by both sides. The Government brought their witnesses forward and the Opposition were able to insert some of the views of others as well. It was interesting, and at times entertaining, and it threw a fair amount of light on the overall process that the Bill would eventually implement as a result of the Government’s wishes to legislate in this field. One of the issues that came up, which my hon. Friends referred to, is the need to broaden the definition. What I heard from the witnesses was almost a consensus on that. Whatever political position they were coming from, they expressed the need to strengthen this aspect of the Bill.

We may well come back to that on Report, depending on the Speaker’s selection of amendments, but we could deal with it at this stage, and we might be able to build consensus on the Committee about designing a Bill that will deliver on the intention that we all have, I think, to ensure freedom of speech and guarantee academic freedom. That came from all the witnesses and all the contributions in our sessions so far, interrogating those witnesses. I hope that there will be a constructive response to a number of the amendments, rather than the traditional response that whatever the Opposition table has to be opposed, while everyone else sits on their hands and busies themselves with other matters.

Michelle Donelan (Conservative, Chippenham)

The amendments relate to the new aspect of the free speech duty that will require higher education providers to pay particular regard to the importance of lawful freedom of speech when considering what “reasonably practicable” steps they can take to secure it.

Amendment 43 would add a reference to academic freedom. The Bill refers to that in a provision on freedom of speech, which is a broad concept protected under article 10 of the European convention on human rights. Academic freedom is considered to be a subset of freedom of speech—a distinct element with particular considerations within the broader concept. As a result, there is no need for this provision to specify academic freedom separately, as it is already covered.

John McDonnell (Labour, Hayes and Harlington)

What harm would it do to insert it into the legislation, on the basis of the witnesses that we heard?

Michelle Donelan (Conservative, Chippenham)

I thank the right hon. Member for his question. There is no point in duplicating in the Bill, because academic freedom is a subset of freedom of speech. That is clearly accepted.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Will the Minister give way?

Michelle Donelan (Conservative, Chippenham)

I will continue a little bit. Amendment 51 proposes primacy instead of importance. The Government are clear that freedom of speech is a fundamental right. Indeed, the new requirement to have “particular regard” is intended to shift the dial in the balancing act that providers have to undertake in order to give more weight in favour of freedom of speech than currently. However, this does not mean that freedom of speech must always outweigh other considerations; rather, it indicates that it is a very important factor. This is the right approach. The Bill does not place on providers a requirement to prioritise freedom of speech over other rights, such as freedom of religion. The requirement to have particular regard to the importance of freedom of speech may, in a particular case, prompt a provider to prioritise freedom of speech over another right, but this would always be subject to the provider’s assessment of what is reasonably practical, and would need to be lawful. The Bill does not create an obligation on the provider to reach a particular outcome. It is vital to remember that, in context, the right to freedom of speech is not, and should never be, absolute.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I apologise for returning to the previous point, but is the Minister aware how remarkable it is to have a group of different academics agreeing on one issue? It is truly remarkable; we achieved the almost impossible by getting them united on the issue of academic freedom. Therefore, it does seem rather preposterous that we have a Bill claiming to be about freedom of speech that does not include the two words “academic freedom”. I wonder, with the greatest of respect, what the point was of having all those witnesses give evidence if everything they said is disregarded, and the Government intend to stick with what they already published before those sessions.

Michelle Donelan (Conservative, Chippenham)

I refute the point that everything in the evidence was disregarded. The Government reserve the right to stick by their opinion, which is that this Bill will protect academic freedom and freedom of speech. Academic freedom is a subset of freedom of speech.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Will the Minister give way?

Michelle Donelan (Conservative, Chippenham)

If I could continue, the Government recognise that a provider will be best placed to consider, on a case-by-case basis, how to fulfil its duties under the Bill while also meeting its other duties, including those under the Equality Act 2010 and the Prevent duty. The provision in the Bill requires reasonably practical steps alongside the particular regard duty, which allows for the balancing exercise to be properly done.

Once the Bill has completed its passage through both Houses, I expect that the new director for freedom of speech and academic freedom will issue comprehensive guidance to the sector on the expectations of the Office for Students. I am confident that providers will be well equipped to strike an appropriate balance when exercising their various duties. I trust that the Committee members are reassured that this amendment is not necessary.

John McDonnell (Labour, Hayes and Harlington)

Actually, I think there might be a bit of movement here. Can the Minister assure us that the Government will indicate to the director for freedom of speech and academic freedom that there should be a specific reference in the guidance to academic freedom?

Michelle Donelan (Conservative, Chippenham)

The director and the OfS will be publishing their own guidance, and it would not be appropriate for me to pre-empt that. I would, however, expect there to be a reference to academic freedom within that guidance. I hope the Committee is reassured that the Bill strikes the right balance.

Matt Western (Labour, Warwick and Leamington)

I thank my colleagues for their contributions, which flesh out these points. As my right hon. Friend the Member for Hayes and Harlington said, we have approached this Committee in a spirit of co-operation and constructive thought, to try and improve the Bill. As my hon. Friend the Member for Kingston upon Hull West and Hessle said, there was a surprising, perhaps staggering, consensus from the witnesses about the need to clarify the importance of academic freedom, from whichever side we sit on. The Minister may be right that academic freedom technically falls within freedom of speech, but this is a higher education Bill—legislation about higher education—so surely the emphasis must be on how freedom of speech relates to higher education. I urge us as a Committee to stress the importance of academic freedom in the Bill and give real emphasis to it.

John Hayes (Conservative, South Holland and The Deepings)

I am sympathetic to the hon. Gentleman’s view, and I entirely endorse the view articulated by the right hon. Member for Hayes and Harlington about how legislation is improved through scrutiny, and how these Committees can work at their best. When I was on the Front Bench doing the Minister’s job, I always adopted that approach with shadow Ministers and others. [Interruption.] I shall ignore the sedentary comment, although I will give way if it was not a sedentary comment.

John McDonnell (Labour, Hayes and Harlington)

I simply said that the right hon. Gentleman always spoke with literary skill as well.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful to the right hon. Gentleman. Like him, I certainly never compromised on what I believe.

On the point that was made—I invite the hon. Gentleman to acknowledge this—these things, generally speaking, are dealt with in guidance, as the Minister said, for the very reason that once the Bill becomes an Act, as we hope it will, and it beds down, we will need to refine precisely how universities interpret it, and the guidance will reflect that continuing work. I therefore think we have got a win in the Minister saying that she would expect the guidance to include that, and we should take that win and move on.

Matt Western (Labour, Warwick and Leamington)

I thank the right hon. Gentleman for that intervention. I genuinely respect him and would like to accept his point. However, I have profound concerns over the direction of the Office for Students and its leadership. He said that generally these things are put in place, but “generally” is not good enough for me, and I do not think it can be for any of us today.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Most pre-1984 universities have a reference in their charter to academic freedom as opposed to freedom of speech, and most post-’84 universities have it within their other governing documents. Is it not therefore important that the wording in the Bill reflects those governing documents, or at least ensures a clear dovetail, rather than leaving it ambiguous, which might cause greater problems, particularly if, as we know, the charter is used quite often in employment law and tribunals? These provisions, according to evidence that we heard, need to dovetail better into that process.

Matt Western (Labour, Warwick and Leamington)

My hon. Friend is right. His knowledge and experience in these matters greatly exceed mine, so I thank him for bringing that to the table.

The Minister said that she would expect the guidance to include academic freedom. Again, I cannot accept that “generally” or “expect” is good enough when it is so fundamental, vital and central to the work and role of our higher education institutions and academics. As my hon. Friend said in his intervention, the words “academic freedom” are written into the governance of universities and higher education institutions.

We are here to be constructive. I cannot stress that point enough. We accept that there is a huge majority on the Government side. They can do as they wish, but we are here for the coming four days to be constructive and to try to make the best of what we think is very poor legislation. I wish to press the matter to a vote.

Matt Western (Labour, Warwick and Leamington)

I beg to move amendment 52, in clause 1, page 1, line 18, after “premises” insert “or online platforms”.

This amendment expands the objective of securing freedom of speech within the law for staff, members, students and visiting speakers to include securing the use of online platforms.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 31, in clause 1, page 1, line 18, after the second “of” insert “or occupied by”.

This amendment expands the duty on higher education providers to not deny the use of any premises, including premises occupied by the provider, to the staff of the provider, the members of the provider, the students of the provider and visiting speakers.

Amendment 53, in clause 1, page 2, line 6, at end insert—

“(c) The financial cost of providing physical security for any individual or body, except where such a cost would be greatly disproportionate.

(4A) In circumstances where subsection (c) applies, the provider must ensure that an online platform can be used as an alternative.”

This amendment would ensure that the use of premises and the terms on which those premises are used are not limited by financial security costs, save where the costs would be disproportionate. In the event the costs are disproportionate, an alternative online platform has to be found by the provider.

Matt Western (Labour, Warwick and Leamington)

I may be bloodied, but I am unbowed. We press on.

I wish to speak in favour of all the amendments in the group. They seek to expand the free speech duty to online platforms, if that is where a speaker is being posted. This is pretty common-sense stuff, given that the past 18 or 19 months of the covid-19 pandemic have fundamentally changed the nature of teaching and hosting events. All of us in the Committee appreciate that online events have become almost a de facto norm when face-to-face meetings for teaching or other events have not been possible over this past year and a half.

That is the same for higher education settings. As we approach the new academic year, increased numbers of student are arriving on campus, following all the changes made to A-level examinations, placing greater pressures on our universities and higher education institutions to meet higher capacity needs, with real pressures arising where they are unable to, and also to support venues where there is insufficient ventilation. Online is therefore an important part of what happens in higher education, whether we like it or not. Some see it as a progressive change, while others might see it as unwanted, but on balance most would accept that it has enhanced the possibilities of higher education provision.

Amendment 52 reflects the fact that many meetings and events will continue to be held online and would ensure that the same law applying to those held in person on university premises would rightly apply to those held online. Clearly, we cannot and should not create a two-tier system where in-person meetings are required to uphold free speech—and yet people have to jump through hoops to facilitate that—while online meetings go unregulated. Professor Stock believes that

“the traditional problem of academic freedom has expanded. Several relevant factors are now in play that were not before, including the internet, which is the most obvious one, social media, academics being encouraged to engage online”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 5, Q1.]

I did not necessarily agree with a great deal of what Bryn Harris of the Free Speech Union had to say, but I entirely accept his point that

“There needs to be a joined-up approach between the various instances of reform. The danger is that we end up with an anomaly. For example, Twitter’s house rules under the online safety Bill will have to be consistent with Ofcom codes of practice. There is a danger that something might be perfectly allowable under Twitter’s house rules, but unlawful in some other way.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 82, Q174.]

In fact, the whole Online Safety Bill is a very important part of what we have been discussing in this Bill: it is fundamental to some of the issues faced by academics, students and wider society when it comes to what free speech is.

The DFE’s own impact assessment stated that one of the policy objectives was

“to embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus and online, within the law”.

In turn, the Regulatory Policy Committee’s review of the impact assessment commented—quite rightly, as this is so important—that

“The IA should discuss how the proposal interacts with other government policies and proposals such as those relating to online harms.”

To address and relate to online harms, beyond the premises where we can have issues—I mentioned Dr Bryn Harris—surely the duty should be extended to the online sphere as well. It seems anomalous for the Government not to wish to incentivise holding online instead of in-person meetings and for them not to accept the amendment. I very much hope that they will see that the amendment introduces a constructive, small detail that aims to improve the legislation in a way highlighted by the impact assessment of the DfE itself. The idea that the online sphere should be included has come from within the Government.

Amendment 53 seeks to build on amendment 52. It would ensure that when the financial costs of hosting speakers were unreasonable and disproportionate, a suitable online platform would have to be provided as an alternative. We have seen over the past year and a half how easily that can be done. Costs are much lower and more people can access the events. It gets around the significant costs of hosting an event.

The truth is that the cancellation of events on campuses has been incredibly rare. Since I assumed this role six months ago, I have been talking to universities and student unions. They have raised certain concerns with me, particularly about when the costs of accommodating a person on campus become prohibitive. Typically, that relates to the security costs of posting that—the security of individuals involved as well as the wider safety of those on campus. There was the case, to which frequent reference has been made, of the former Israeli ambassador, Mark Regev, who was prevented, I believe, from speaking at one university. I think we were talking about a five-figure number for costs. Security costs, whether they are established by the embassy or whether the police deem that a certain level of security is needed for the safety of the speaker and attendees, can be considerable, and I want to come on to that. For student societies, these are significant sums of money—as I said, they can be five-figure sums. When we think of higher education institutions it is all too easy to think of the larger providers where these events are perhaps more typical, but the legislation covers all higher education institutions, many of which have just a few hundred students.

Universities UK produced a report in 2011 entitled “Freedom of speech on campus”, in which it recommended that universities should have someone who was responsible for campus security and who would ensure that those making decisions based on campus security, academic freedom and freedom of speech were all aware of existing legislative duties. It is out there—there should be someone doing that, and they would be there to establish the impact, risk or threat of such an event.

Dr Bryn Harris, in his evidence, said:

“Ideally, what we would see here is an elaboration of what ‘reasonably practicable steps’ means. You could say it shall include a duty to cover such security costs as are necessary to enable an event to take place safely.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 79, Q166.]

While that comment is in relation to proposed new part A1, there is clearly support among Government witnesses for not allowing security costs to impinge on the duty to secure freedom of speech.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I shall be extremely brief, Sir Christopher. Yesterday, in a meeting with the Jewish Leadership Council, I was reminiscing about my time as shadow Universities Minister, when I met the Union of Jewish Students. One of the points that it wanted to reinforce was the difficulty it had holding events because of the extortionate costs that can result from security, given some of the speakers it wished to invite on to campus. I therefore hope that the Minister takes this amendment seriously, because it seems to be a very simple way of allowing people to invite speakers who could be deemed controversial and require extortionate security costs, and to continue their events in the online sphere.

John Hayes (Conservative, South Holland and The Deepings)

I very much welcome the tone that the hon. Member for Warwick and Leamington has adopted this morning, following the advice of his senior colleague—he is senior in so many ways—the right hon. Member for Hayes and Harlington. In particular, the hon. Gentleman made a profoundly important point about the online transmission of information, because of course that is pertinent given the events of the past couple of years. Many universities have taught exclusively online. Seminars and lectures have been provided by that means by necessity. Others have adopted a more flexible approach, and so on.

Nevertheless, mindful of that, I think the hon. Gentleman makes a good point. This is an improvement to the Bill. I had not given it as much consideration as I might have done until I read his amendment and heard him articulate it, but it seems self-evidently an improvement to the spirit and tone of what the Government are hoping to achieve. Far be it for me to teach the Minister to do her job—if I start doing that, I will get chastised by both her and my Whip, no doubt—but this is a very good example of where a Bill can be improved by sensible Opposition amendments. I hope we will have a lot more sensible amendments from them, and no wrecking or destructive ones.

Matt Western (Labour, Warwick and Leamington)

I very much welcome the right hon. Gentleman’s tone, too, and I thank him for it. This is absolutely about trying to do the best. I described the Bill as a bit of a dog’s breakfast. I do not know whether, in his experience, he has had a 17-page Bill to which so many amendments have been tabled, but this is certainly the first time I have come across quite so many per page. I would also welcome the right hon. Gentleman’s comments on amendment 31, which he is perhaps about to move on to.

John Hayes (Conservative, South Holland and The Deepings)

I am coming to that. The hon. Gentleman anticipates my next contribution—which will be brief, I hasten to add. I think that the point he makes with amendment 31 is also good. He is right that where universities deliver what they do is not a simple matter, not just because of the changes in technology and the way in which they operate, but in other respects as well. There are many premises, many different kinds of operators and many people involved in the university community. That has become increasingly true over time, and again I think the hon. Gentleman makes an extremely reasonable and valid point. I have been inspired by the right hon. Member for Hayes and Harlington to embrace the spirit of collaboration and helpfulness, and I hope that the Minister will do so, too.

John McDonnell (Labour, Hayes and Harlington)

I would not want the right hon. Gentleman to go too far, because I still think that it is a rubbish Bill. I want to address the issue of occupied premises; the online point has been made well by Members across the Committee.

The issue of the occupation of premises is important in a number of areas where the university is not sited in the constituency but uses, often temporarily, premises around the area. Without the amendment, the Bill will have a potential loophole that could be exploited. My hon. Friend the Member for Warwick and Leamington made a valid point about that.

On the online issue, if we do not build it in early, we will really miss a trick. The scale of online abuse that most of us receive is enormous—perhaps I receive more than others; I do not know—and if we do not venture into that territory and secure it, we will not be seen to be actually operating in the real world as it now is. Most of the universities that I have been dealing with recently are only now going back to any form of physical participation; virtually everything up until now has been online. They have also encouraged students to maintain some form of student life as well, such that where physical meetings cannot take place, student societies go online, using Zoom, Teams and so on. The Bill could make explicit reference to that. Failing that, I would welcome the Minister’s views on any alternative solution, but we need to be convinced that the issue is being addressed.

Michelle Donelan (Conservative, Chippenham)

Amendment 52 seeks to make clear that the duty of higher education providers to take reasonably practicable steps to secure freedom of speech applies in relation to the use of online platforms as well as physical premises. As drafted, section A1(3) requires that providers must take reasonably practicable steps to secure freedom of speech, including by securing that the use of premises is not denied because of the ideas, beliefs and views of an individual or body, and that the terms of the use are not based on such grounds.

Importantly, the provision uses the word “includes”. In other words, the duty in section A1(1) is not limited to what happens on the physical premises. Therefore, the requirement for a provider to take reasonably practicable steps may apply to online events hosted by the provider every bit as much as to physical events held by the provider.

Of course, it is important to be clear that the lawful speech of students, staff, members and visiting speakers in online spaces is covered by the Bill. The Government believe that the Bill as drafted achieves that aim, and I absolutely expect that the new director for freedom of speech and academic freedom will set that out clearly in the guidance in due course. I hope that I have reassured the Committee. However, I also commit to the Committee to keep this under further consideration.

Kevan Jones (Labour, North Durham)

I am concerned that a lot is going to be left to guidance. I want to explore the Minister’s role in ensuring that the commitment that she has given today will actually get into that guidance. If the operation of the Bill is going to be reliant on the guidance, that guidance is going to be very important.

Michelle Donelan (Conservative, Chippenham)

I have committed to the Committee today to consider this further as the Bill progresses through the House.

Kevan Jones (Labour, North Durham)

Over the past few years it has increasingly been the case that the bite is found in guidance rather than on the face of the Bill. I am trying to understand what the Minister or the Department’s input will be in terms of framing that guidance, because that is going to be very important in determining whether the Bill works.

Michelle Donelan (Conservative, Chippenham)

The right hon. Gentleman can be assured that I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation. It would be impossible for the Bill to detail all of the things that the guidance needs to address.

I now want to turn to amendment 31.

John McDonnell (Labour, Hayes and Harlington)

Will the Minister give way?

Michelle Donelan (Conservative, Chippenham)

I really do want to get to amendment 31, but I will let the right hon. Gentleman in.

John McDonnell (Labour, Hayes and Harlington)

I am grateful to the hon. Lady. I just want to get this clear, because I might have missed this: the guidance itself will be prepared by the director. That guidance will not be subject to parliamentary approval or amendment in any form, and therefore the opportunity for Members of the House to influence that guidance does not exist. That is my worry, and that is why having things on the face of the Bill shapes the guidance in due course. The hon. Lady has said that she will give this further consideration, but could I suggest that she offers the Opposition lead, my hon. Friend the Member for Warwick and Leamington, the opportunity to meet her and go through the potential for an amendment on this topic on Report?

Michelle Donelan (Conservative, Chippenham)

I am always only too happy to meet the hon. Member for Stretford and Urmston, and to discuss this Bill in particular, so I can commit to that.

Amendment 31 seeks to expand the duty on higher education providers to secure freedom of speech by not denying the use of its premises to an individual or group because of their ideas, beliefs or views. It seeks to do so by explicitly including premises that a provider occupies. The Bill strengthens and expands the existing freedom of speech duty on providers contained in section 43 of the Education (No. 2) Act 1986. The wording of this Bill—

“any premises of the provider”—

is effectively carried over from section 43 of that Act. The Bill requires providers to take “reasonably practicable” steps to secure lawful freedom of speech for its members, staff, students and visiting speakers.

In this context, proposed new section A1(3) to the Higher Education and Research Act 2017 deals with university procedures, namely room booking systems. It requires that the use of providers’ premises is not denied because of someone’s ideas, beliefs or views, and that the terms of use are not based on such grounds. If the provider is responsible for such decisions in relation to the premises, this provision will apply. That is likely to be the case when the provider owns the premises or is in a long-term leasehold, for example; “the premises of the provider” will apply in both cases, noting that the Bill does not say “premises owned by the provider”.

However, where a provider hires rooms on a short-term basis, it is unlikely to be within its control to decide who can access rooms owned by an external party and how those rooms are used. Accordingly, such premises would not be the premises of the provider under the Bill. Of course, as I have said, the provider must still take reasonably practicable steps to ensure that there is lawful freedom of speech, but that would not apply to booking decisions about external parties’ rooms.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I understand exactly what the Minister is saying, and the difficulty of requiring a university to secure premises that it might not directly run. The difficulty is that more and more higher education provision is done at a distance from the main location of the university, so while the university might make reasonable adjustments to provide that speaker or activity in its central location, that has the effect of denying a voice to speakers in a location that might be hundreds of miles away, and to students and staff who may never be able to access it. Making sure that there is a reasonable duty regarding premises that are “occupied by” a university does not specify a particular room, but does give an inference that the wider premises and the area occupied must be provided for. I understand that the wording of the amendment might not be the Minister’s preferred wording, but is this something she would come back to in order to ensure that there is a location-based understanding of this, as well as an ownership and long-term lease-based understanding of it, so that students who might be studying 100 or so miles away from the central premises of the university have in their locality the ability to hear and host external speakers, for example, or have lecturers who are able to have academic freedom?

Christopher Chope (Conservative, Christchurch)

That was a very long intervention, which I allowed in order to facilitate debate, but I do not want that to be a precedent for the future.

Michelle Donelan (Conservative, Chippenham)

Thank you, Sir Christopher. While I recognise the hon. Gentleman’s points, this Bill does cover accommodation that is in different locations. Multiple universities and higher education providers will have satellite campuses: this amendment is about who owns the premises, and the kind of lease it is. We cannot get into a predicament where universities are tied in bureaucracy and are being asked to be responsible for the freedom of speech of other organisations that hold leases on buildings.

Amendment 53 seeks to deal with cases where security costs required for an event may result in the event’s not being able to go ahead. It would require the amount of cost not to be taken into account when a provider is deciding on the use of its premises or the terms of its use, unless the costs are greatly disproportionate, in which case online provision should be made available. I agree it would be concerning if events could not go ahead because of security costs and I am aware of several examples reported in the media of that happening. I too have met some groups that have been impacted.

Higher education providers should not be no-platforming by the back door. The Bill already requires providers to take “reasonably practicable” steps to secure freedom of speech, and that duty will apply when providers are making decisions around security costs for the use of such premises. Notwithstanding that, I have heard and noted the reasonable concerns raised by hon. Members about amendment 53 and I commit to the Committee to look at this. I hope that will reassure the Committee that the amendments are not necessary.

Matt Western (Labour, Warwick and Leamington)

I thank those on both sides of the Committee who contributed to the debate. I think where we are coming from is increasingly being understood as constructive. If we were working through this legislation in September 2019, there would be a lot of stuff that we had not imagined would be required. These amendments seek to future-proof what might happen in the future evolution of higher education. Forty years ago, they might have been these fixed, established, campus-based city centre location universities. They had not spread and assumed sites in Singapore or other towns in the UK. They were not renting spaces and they did not have the plethora of private property that there is on campuses today. It was a very different situation. We need to think about how higher education has evolved over the last year and a half and how it will continue to evolve.

As my right hon. Friend the Member for Hayes and Harlington alluded to, mischievous organisations, societies or whatever we want to call them might seek out venues located within a premise or site that they knew would not be within the letter of the law of this legislation. I agree entirely that leaving so much to guidance must be a concern for us all. We are here, as parliamentarians, to make legislation and set policy, and I do not think it is healthy for too much to be left in the remit of, say, one individual, as would be the case with a director for freedom of speech and academic freedom.

I also agree with the point raised by my right hon. Friend the Member for North Durham. I think he was referring to the point that, as was suggested by certain witnesses in our evidence sessions, this guidance will be laid down by a person who is likely to be a political appointee and therefore the way that this guidance is formulated is extremely important. That is why more detail must be included in the legislation; and if that does not happen in this place, I am sure that the House of Lords will seek to do that.

I take on board the Minister’s positive comments, particularly on amendment 53. However, I would like to press amendment 52 to a vote.

Christopher Chope (Conservative, Christchurch)

Does the shadow Minister wish to move amendment 31?

Matt Western (Labour, Warwick and Leamington)

I take the Minister at her word and look forward to being able to work with her. At this point, I do not wish to move the amendment.

John Hayes (Conservative, South Holland and The Deepings)

I beg to move amendment 71, in clause 1, page 2, line 2, at end insert—

“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting.”.

The amendment draws attention to the concern that was expressed during our evidence sessions about the possible relationship between this legislation and existing statutes, notably the Equality Act.

The point was raised by witnesses and I am particularly mindful of what Professor Biggar said when he spoke to us. He said that,

“the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 30, Q59.]

We heard something on that in the evidence from the National Union of Students. When I challenged the witness on whether she believed in the right to disturb or to shock and offend, she claimed she believed in free speech, but went on to defend the idea of no platform. She talked about vulnerable people. It is hard to know who these vulnerable people are. We cannot be talking about shy or reticent people—after all, the meek are so blessed they are going to inherit the Earth, so it cannot have been them—but there is a concern that the broadening of the definition of vulnerability and harassment could inhibit the intentions of the legislation.

Of course it is true that we all abhor offensive, discourteous and other unsavoury or unpalatable kinds of speech, but in a free society it must be permitted if it is lawful. It is necessary sometimes, as several witnesses told us, to challenge orthodox thinking. If orthodox thinking becomes so narrow that it prohibits those who question the status quo and the zeitgeist, nothing would ever alter. Most innovators through time, from Socrates onwards, have done just that. It made him very unpopular with Athenians—in the end, so unpopular that it brought about his demise. Indeed, I was reading Socrates this morning, on just that point—on Meno’s paradox. Let us not go into that, Sir Christopher; you will no doubt not let me depart from the subject in hand to that degree.

The amendment is straightforward. It tries to address the challenge identified by Professor Biggar and others to reconcile the legislation with the other requirements that will affect universities in its interpretation. Indeed, other witnesses from the sector draw attention to this more critically than Professor Biggar, who is, broadly speaking, in favour of the legislation. They suggest that it is a problem with the legislation per se, and they feel that it cannot be reconciled with the need to balance their legal responsibilities. I do not share their view, because I think it can be reconciled. The Government can help with that by clarifying the different responsibilities on the face of the Bill, which is what the amendment is designed to do.

The spirit in which the Committee operates will, I hope, be one of helpfulness, collaboration and scrutiny, so that we can improve the legislation. I can tell from what the Minister has said that she shares that spirit, because she has already said that she will go and think about things afresh during the passage of the Bill. Moreover, the work that she does with the new regulatory regime will reflect such further consideration, given the comments from members of the Committee, and no doubt in the other place and on Report. I am most grateful to the Minister for adopting that tone, and I hope she will do just that when she deals with my amendment.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Before I start, I want to say that I genuinely hold the right hon. Member for South Holland and The Deepings in high regard, especially since we discovered a shared love of skills and FE. However, I think the amendment is gravely mistaken. It is perhaps worth reminding ourselves of the explanatory notes on what constitutes harassment under the Equality Act 2010, so that we know what we are talking about:

“The first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.”

I am not aware of any debate, discussion or event in a university that we could rightly say creates

“an intimidating, hostile, degrading, humiliating or offensive environment for the complainant”

or violates

“the complainant’s dignity”.

The second type is sexual harassment, which is

“unwanted conduct of a sexual nature”.

That is surely not something that we would want in a university. The third type is

“treating someone less favourably because he or she has either submitted to or rejected sexual harassment”,

which could indeed become the lecherous lecturers clause. The explanatory notes for the Equality Act 2010 give three examples of harassment:

“A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.

An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male.

A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion.”

That is what we mean when we are talking about harassment under the Act, so we need to think about whether we should amend it for universities. Do we really want to encourage this kind of behaviour? It is important to state that universities are not separate from our community or our country. Something that is permitted when people are inside a university cannot become something that is suddenly not permitted when they step outside the university grounds. In fact, the best types of universities are those that I call civic universities—universities that do not just exist in their communities, but are part of them. Therefore, why do we need a separate law? It would mean that people could be offensive within the university grounds but would suddenly have to remember to be polite to their same colleagues when they step outside. We need to think incredibly seriously when we are discussing using the Bill to amend something as important as the Equality Act 2010.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful to the hon. Lady for her introductory remarks about our mutual regard. The amendment does not do what she is saying. Clearly, universities have a responsibility under the Equality Act 2010 to counter, prevent and act on the kind of harassment that she describes, but Professor Biggar says that the risk with the Bill as it stands is in exaggerating harassment to include, as my amendment describes it,

“discussion of an academic or scientific matter”.

I entirely agree with the essence of what the hon. Lady said, but my worry is that the tension between the duties she has described and this legislation will be hard to reconcile for universities unless we are clearer in the Bill about that distinction.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I thank the right hon. Gentleman. I will not continue to give my opinion; instead, I sought legal advice on the amendment. The quote that I shall read is from the highly regarded human rights barrister and expert, Adam Wagner, who gave me permission to read out his statement in full:

“This is a bizarre and retrogressive amendment. All speech is already protected by ‘freedom of speech’, i.e. Article 10 of the European Convention on Human Rights, but that right is qualified and will always be balanced against the rights of others, the prohibition on discrimination and generally the interests of the public. The implication of this amendment would be that, for example, hostile and degrading antisemitic speech targeted at a Jewish individual—i.e. hate speech—during an ‘academic discussion’ would no longer be unlawful. A neo-Nazi could repeatedly refer to a Jewish speaker as ‘Jewish scum’ during an academic discussion and this could—on the face of it—be lawful, as would referring to a black speaker as ‘subhuman’ and so on. Hate speech has never been protected by free speech rights and I would not be surprised if this amendment, if it became law, was not ruled to be in breach of the UK’s human rights obligations by a court here and/or in the European Court of Human Rights.”

I completely respect what the right hon. Gentleman is trying to do with the amendment. Indeed, we need a full and frank discussion later on how we balance the different aspects of the Equality Act 2010 with the Bill and still allow free speech. With the greatest respect, however, the amendment should not be accepted.

Charlotte Nichols (Labour, Warrington North)

I want to follow up on my hon. Friend’s comments about what the Bill means in relation to the Equality Act 2010. As someone who is Jewish, one of my key areas of concern is what it would mean for Jewish students—an issue I have raised a number of times throughout the passage of the Bill. I have raised concerns about what it would mean for Holocaust denial, after the Minister appeared to suggest on the radio that that would be protected speech under the Bill. In fact, we heard from witnesses such as Professor Goodwin that he would invite a speaker from the National Front or the British National party, if they were available, to address his students. We have heard evidence that that is what some academics would seek to do, if the Bill were in place.

We need only look at the British National party. Nick Griffin, along with a number of members of the British National party and the National Front, has been repeatedly prosecuted for hate crimes, incitement to racial hatred and Holocaust denial. Inviting someone with those sorts of views to address students on campus—for example, in a politics lecture—might mean someone like Nick Griffin laying out all the reasons why he believes that anyone who is not white British should be repatriated to a different country, why he believes that the Holocaust did not happen, and so forth. Clearly, if he made those remarks outside a university setting, in a discussion that was not about an academic or scientific matter in a higher education setting, he could be prosecuted for that, as he has been repeatedly.

The amendment would allow a loophole for Nazis, fascists and people who hold absolutely objectionable views. As we have heard, those people have, in the public interest, always had their right to absolute freedom of speech, qualified by that public interest, libel laws, the Equality Act 2010 and so on. The unintended consequence would be to drive a wedge in the Equality Act. Our university campuses would become less safe spaces than the street outside them, where those rules would still be in place.

Like my hon. Friend the Member for Kingston upon Hull West and Hessle, I have nothing but respect for the right hon. Member for South Holland and The Deepings, but if his amendment formed part of the Bill, it could have really adverse consequences.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I became quite fond of the right hon. Member for South Holland and The Deepings during the evidence sessions, and during our discussions about the necessity for broader academic reform in our universities and about how tenure works. There is a lot of agreement on that. However, for three reasons, I am worried that the amendment creates an outcome that he is not actually seeking. First, Professor Stock described how her academic freedom and free speech was not limited just by—I would argue not at all by—the university and the institution, but by the harassment from colleagues, students and the academic community more broadly. They called her names such as TERF, which she found objectionable, and said that she was not academically rigorous. In effect, she described what we would call harassment, because she was exerting her right under sex protections to talk about sex, and they were harassing her for that. I disagree with her views on the sex agenda, but it is her right to express them without fear of harassment.

This amendment would be a harasser’s charter—a charter to harass her outside the university, making snide remarks online or in academic forums, degrading her and ridiculing her. We heard in the last evidence session—it feels like yesterday—how many academics feel mocked and ridiculed by their colleagues because of their activities, and that sometimes leads to harassment, because they have protected characteristics. This would be a charter for those academics to be harassed out of their practice. That would be very worrying. I do not think that is what the right hon. Gentleman wants, but I am worried that is what the amendment would do.

We also heard from Trevor Phillips, with whom I disagree on a number of matters, who said that the importance of the Bill is not about directing details but empowering a regulator to provide guidance about where these things need deliberation. Bizarrely, whereas the Minister has previously said, “This needs to be dealt with by the Office for Students”, and I have disagreed, on this issue I would take the line that the Minister has taken: this is an area where we need decent guidance from the Office for Students to ensure that universities are balancing that duty.

The right hon. Gentleman is right that sometimes universities incorrectly interpret the balance of where they should be on harassment and academic rigour. The clunky nature of this amendment might not fix that, but decent guidelines will change the way universities work, so I hope the Minister will say that she will push for them.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman is taking us towards some sort of Hegelian synthesis of my intention, which is to ensure that, as Professor Biggar said, universities do not over-interpret their duties and define harassment so broadly that it closes down debate, while ensuring, on the other hand, that universities do the right thing, in the terms that the hon. Member for Kingston upon Hull West and Hessle was describing, in protecting people from the kind of activities that the hon. Gentleman spoke of. Maybe, as he says, that is best achieved in guidance, because he acknowledges that there is a tension, or a risk of it, as I tried to point out,.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

The whole Bill is full of tensions, which is why many of us would say this is not best put in legislation; instead, it could be done through other mechanisms, such as guidance and support for universities, given that we already have the Office for Students. That is the Opposition’s whole argument on whether we need a Bill. However, we have a Bill, so we need to create a framework to ensure that those tensions are dealt with sensitively.

John McDonnell (Labour, Hayes and Harlington)

May I add to my hon. Friend’s note of caution? In 2010, when the equalities legislation was introduced by the then Conservative Government, there was extensive debate. He will remember the debates around what constituted an appropriate joke, and whether that was encompassed in legislation. We now have 11 years of experience of that legislation, and precedent has built up, after court actions. I am fearful to tread into an area where I think we have a settled opinion at the moment. This amendment could be counterproductive, because it would reopen that whole debate, which I thought we had comfortably settled.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I totally agree. Again, that is the importance of the guidance. The Office for Students can sit down with other regulators and work out a settled opinion, which might be that there is not enough guidance for universities to interpret things correctly.

The right hon. Gentleman has mentioned a number of times the no-platform policy of the National Union of Students. That is a policy that bans National Action, a proscribed, illegal organisation in this country. It is a policy that bans Hizb ut-Tahrir, an organisation that is prevented from entering campuses under Prevent. It bans only a small handful of organisations—literally fewer than 10.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Six.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Six—I thank my hon. Friend. Those bans usually have national governmental guidelines behind them, because the organisations are proscribed under Prevent or under other duties. We need to be careful when we lambast the no-platform policy of the NUS, because it is a policy that furthers Government policy and guidelines for keeping our campuses safe. Sometimes the phrase no-platforming is used, but it is actually a policy that is implementing Government guidelines.

John Hayes (Conservative, South Holland and The Deepings)

Of course the hon. Gentleman is right that, where organisations are proscribed or by law prohibited from operating or existing, they should not come. Furthermore, it may be that other organisations are not welcomed into particular forums, but he will know that, over the years, no-platform policies have been used in all kinds of different institutions to prohibit a much wider range of outside speakers, including in some cases speakers from the Conservative party and other perfectly legitimate and indeed noble political organisations of that kind.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

In a previous sitting, the Chair mentioned facing this issue when he was a student. That is exactly why the NUS has laid down a national policy that refers to six named organisations—so that individual student union branches or universities cannot erroneously put forward others. The right hon. Gentleman’s exact concerns have been implemented by the NUS, which has listed the organisations—only six, and all backed up by national guidelines. An individual student union cannot just say, “We do not like that Conservative,” or “We do not like that academic.” I agree with him that there is concern that that has been misapplied in the past. That is why we now have national guidelines. Again, that is an example of where these things are best settled under guidelines, through negotiations with the national unions and through the regulator, and not put in legislation, which might lead to unforeseen circumstances.

Matt Western (Labour, Warwick and Leamington)

I echo the comments of colleagues, who have made the case so well. We have profound concerns about the amendment, I am afraid. We understand what it is trying to do, but it could be very broad if accepted as it is. On Second Reading, the Secretary of State made it crystal clear that

“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010”.—[Official Report, 12 July 2021; Vol. 699, c. 49.]

The amendment could strip out that safeguard of harassment protection. The Minister, too, stressed the point on Second Reading. She said:

“To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination.”—[Official Report, 12 July 2021; Vol. 699, c. 120.]

We should be very careful about the existing duties, and we need to ensure that they are protected in future as well. That could be a real problem for us, if the Bill is amended.

Professor Stephen Whittle said:

“The Equality Act provides little protection for anybody who feels that their rights are being disturbed by somebody else’s freedom of speech. For example, if somebody is speaking and they are antisemitic, unless it directly relates to that person, unless they have some sort of standing, the Equality Act cannot protect them as such.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43-44, Q80.]

The Equality Act is already a fairly flimsy tool for interfering with freedom of speech, so I really want to know why the amendment should so brutally cut the legs from under the Act’s harassment provisions. Even Bryn Harris commented:

“I accept that getting into the Equality Act is very controversial and tricky terrain”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]

I fear the Government’s approach is a bit of a sledgehammer to crack a nut. The concern is about a fundamental change to the Equality Act. As the right hon. Member for South Holland and The Deepings said, universities are trying to do, or should do, the right thing. That is what has always been sought. In one evidence session, Professor Grant referred to the Chicago principles, under which a university can restrict expression that violates the law, that falsely defames a specific individual, or that constitutes a genuine threat or harassment. The amendment would be counter to those principles, which is why we will oppose it.

Michelle Donelan (Conservative, Chippenham)

Amendment 71 seeks to override the law on harassment so that higher education providers would be required to take reasonably practicable steps to secure freedom of speech in scientific or academic discussions, even where that would constitute harassment under the Equality Act 2010. Freedom of speech, which generates rigorous debate and advances understanding, is vital. To uphold freedom of speech in higher education, students, staff and members must be able to express their ideas within the law that may be controversial, unpalatable or even deeply offensive. That is how students develop the ability to think critically, to challenge extremist narratives and to put forward new and controversial ideas.

As is the case now, providers must consider each case on its own facts, and work collaboratively with those involved to ensure that there is an appropriate balance across the range of relevant duties, including in relation to equality protections. It is already the case that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in article 10, and academic freedom. Guidance has made it clear that the harassment provision within the Equality Act cannot be used to undermine academic freedom. I expect that that will be reiterated in the new Office for Students guidance.

Students’ learning experience may include exposure to course material, discussion or speakers’ views that they find offensive or unacceptable. That is very unlikely to be considered harassment under the Equality Act. Also, if the subject matter of a talk is clear from the material promoting an event, people who attend are very unlikely to succeed in a claim for harassment arising from views expressed by the speaker. At the same time, if speech does constitute harassment, it should not be tolerated, even in the context of academic discussion in higher education. Any form of harassment is abhorrent and unacceptable anywhere in our society, including in universities. It is vital that the Bill makes clear that it protects only lawful free speech. Although I hugely respect my right hon. Friend the Member for South Holland and The Deepings—as, it seems, does the Committee—I must ask the Committee to agree that the amendment is unnecessary. The Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom.

John Hayes (Conservative, South Holland and The Deepings)

The Minister may persuade me to withdraw the amendment, in the spirit that has pervaded the Committee so far, if she addresses the issue raised by Professor Biggar and other academics, who said that at the moment, universities may be over-interpreting their responsibilities in respect of the Equality Act. Professor Biggar made clear that they are interpreting it in a way that the courts would not. All I ask is that universities stick to the law and what the courts would do on harassment, rather than over-interpreting in the way that Professor Biggar suggested. If she included that in her remarks and in the subsequent guidance, I would be happy to withdraw my amendment, but I will wait to hear what she says.

Michelle Donelan (Conservative, Chippenham)

I wholeheartedly agree with my right hon. Friend that neither universities nor anybody else should be over-interpreting the Equality Act. That will be made clear in the guidance that the Office for Students will bring forward, and I fully expect that to help clarify the situation and ensure that freedom of speech is prevalent on our campuses. With that in mind, the Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom, but absolutely does not, and should not, provide a vehicle for people to harass one another.

John Hayes (Conservative, South Holland and The Deepings)

With that hearty recognition of my point, I will happily withdraw the amendment. I take the points that have been made on both sides of the Committee about how vital it is to protect students from all the things that I think we would all regard as fundamentally unacceptable. In the light of the comments from Professor Biggar and others on the need to get the balance right, and with the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Matt Western (Labour, Warwick and Leamington)

I beg to move amendment 55, in clause 1, page 2, line 7, at end insert—

“members and visiting academic speakers”

This amendment would ensure that the objective of securing freedom of speech within the law includes securing the academic freedom of members and visiting academic speakers.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 29, in clause 1, page 2, line 36, at end insert—

“references to “members of the provider” include any affiliated academics and any other person holding an academic position at the provider;”

This amendment widens the definition of academic members to include affiliated academics and other individuals holding academic positions at higher education providers.

Amendment 56, in clause 1, page 2, line 36, at end insert—

‘“visiting academic speaker” shall mean any individual who is an academic member of another registered education provider or equivalent institution or organisation.’

This amendment defines academic visiting speaker.

Matt Western (Labour, Warwick and Leamington)

I am conscious of time so I will not spend too much of it on this. I really hope that amendment 55 is yet another constructive, common-sense tweak to the Bill, to ensure that there is comprehensive coverage of who a member or speaker may be. The amendment would ensure that the protection of academic freedom is provided to academic speakers as well. Many of the events that the legislation covers are most relevant to external speakers, so it should be very clear and obvious that the amendment should be included. If the Government are seeking an end to no-platforming, we need to ensure that existing academic speakers are included in that.

Tom Simpson put it this way in his evidence:

“The coverage of the duty is currently specified as the staff of the provider, members, students and visiting speakers. In academic life, there is a really important category of what you might call affiliated academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]

That is quite obvious. Increasingly, there are many more guest scholars or people on visiting fellowships who are not necessarily members of the university. Currently, the wording does not make it plain that such people would be included, and they need to be.

The issue has also been raised with me by various representative bodies and institutions, and they urge that my amendments 55 and 56, which define a “visiting academic speaker”, be included. The amendments are not controversial; they are common sense, and I hope that they will be adopted by the Government.

Fiona Bruce (Conservative, Congleton)

I tabled amendment 29, as other Members have tabled other amendments, on a constructive basis, seeking to improve a Bill that I strongly support.

Amendment 29 would clarify that

“references to “members of the provider”—

that is, the higher academic provider—

“include any affiliated academics and any other person holding an academic position at the provider”.

Why is this important? It is to ensure that those who are undoubtedly intended to be covered by the Bill, such as visiting fellows, research associates, life fellows, guest scholars and emeritus fellows do not fall outside the scope of the Bill’s protection. Many within the higher education sector would not view these categories of affiliated academics as “members”, on the basis of what I understand is a commonly accepted understanding of that word. The simple remedy provided by amendment 29 would be to clarify and broaden the meaning of “members” to include affiliated academics and anyone held to be occupying an academic position within the university.

I will just refer to two remarks from witnesses who gave evidence to the Committee. Associate Professor Tom Simpson told the Committee:

“In academic life, there is a really important category of what you might call affiliated academics—people with visiting fellowships or emeritus professorships, guest scholars or life fellows. The wording does not make it plain that such people would be included.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]

And Professor Matthew Goodwin told us of academics being “disinvited from workshops”, who I rather think might not necessarily be a member of the higher academic provider, when he said that

“speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q185.]

I do not propose to press this amendment to a vote, but I hope that the Minister will confirm in her closing remarks that she will consider taking this matter away for consideration as the Bill progresses through the House.

Michelle Donelan (Conservative, Chippenham)

Amendment 29 seeks to expand the notion of who is a member of a higher education provider to include affiliated academics and other individuals holding academic positions. Amendments 55 and 56 seek to extend academic freedom to members and visiting academic speakers.

Clause 1 will insert part A1 into the Higher Education and Research Act 2017. Part A1 (1) and (2) require registered higher education providers to take “reasonably practicable” steps to secure lawful freedom of speech for their

“staff…members…students…and…visiting speakers.”

Turning to amendment 29, we have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, because not all of those who work at a provider have an employment contract or employee status. To be clear, expanding the protections to these individuals is a key aspect of the Bill and ensures that all academic staff have access to redress. It is important to note that the term “staff” is already used in the current definition of academic freedom in the Higher Education and Research Act, so it is an understood term in this context. Similarly, “members” is a commonly used term in the sector, as well as in legislation. It is included in the existing provision in the Education (No. 2) Act, which is carried over into the Bill to ensure that individuals who are currently covered do not lose that protection. Members of a university include members of the governing council, for example.

I now turn to the proposed extension of academic freedom to members and visiting academic speakers in amendments 55 and 56. As already defined in the Higher Education and Research Act and strengthened in clause 1, academic freedom is necessary for academic staff who may be at risk of losing privileges and jobs or with reduced likelihood of securing a new academic role because of their views. Visiting academic speakers will therefore have academic freedom in relation to their own universities. A visiting speaker who speaks controversially at another university will have the benefit of the provision at their own university, but they do not need it at the university they are visiting, as they do not have a job or promotion prospects at that university that they are at risk of losing.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Very often, an academic seeking promotion has to demonstrate that they have published work and have spoken at an event external to the institution that they work in. If they are unable to prove that they have spoken at a number of events, they are unable to secure promotion. Therefore, the protection that the Minister talks about is a protection in the institution, but if academics are not protected in external institutions they will not even be able to apply for promotion. Does she understand that there does need to be an extension, and would she consider how that could be done?

Michelle Donelan (Conservative, Chippenham)

Importantly, they will be covered by the overarching protections in relation to freedom of speech when they speak at other institutions. As for members, they are specifically covered under proposed new part A1(2). Strasbourg case law has confirmed that, in determining whether speech has an academic element, it is necessary to establish whether the speaker can be considered an academic. To the extent that a member of a university could also come within the category of academic staff will be a question of fact. Quite simply, if they are covered they will have academic freedom as defined in the Bill. I hope that reassures members of the Committee that these amendments are not needed, as the members and types of academics mentioned can already be assured that they will be protected under the Bill.

Matt Western (Labour, Warwick and Leamington)

I am reassured by what the Minister says. It seems there is coverage for visiting academic speakers. On that basis, I beg to ask leave to withdraw the amendment.

Fiona Bruce (Conservative, Congleton)

I beg to move amendment 59, in clause 1, page 2, line 9, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Judith Cummins (Labour, Bradford South)

With this it will be convenient to discuss the following:

Amendment 61, in clause 1, page 3, line 26, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 62, in clause 4, page 5, line 31, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 63, in clause 4, page 6, line 1, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 64, in the schedule, page 13, line 8, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 65, in the schedule, page 14, line 9, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 66, in the schedule, page 14, line 36, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 67, in the schedule, page 15, line 16, after “staff” insert “and students”.

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Fiona Bruce (Conservative, Congleton)

I rise to speak to amendment 59. Freedom of speech and academic freedom are the lifeblood of higher education. Without the protection of these freedoms, and recognition of their value to society, universities risk losing the ability to be centres of intellectual debate, where prevailing norms can be challenged and where academics and students are able to pursue unconventional lines of inquiry. This is an issue of critical importance. Universities function as critical influencers across society. The students of today will be the leaders of tomorrow, who will shape—and hopefully improve—society as a whole.

The Government have rightly sought to ensure that the meaning of academic freedom is clarified in the Bill to include the ability of academic staff members to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of being adversely affected, either as a result of losing their jobs or privileges or reducing the likelihood of future promotions or other employment opportunities.

However, we heard in evidence from several witnesses that academic freedom is a right that needs to exist to protect not only academic staff but students, who are often more vulnerable to pressure and self-censorship. They may worry, for example, that they will be marked down and that their expression of unpopular or unfashionable views will have an adverse impact on their educational progress.

I will give a few examples. In his evidence, Professor Biggar mentioned a junior research fellow who would attend one of his events only on the condition that he was not photographed or named. He feared there would be repercussions for his present academic pursuits and future career if he associated in any way with Professor Biggar. That was a junior research fellow. How much more a student, who may feel a greater pressure to acquiesce to the prevailing culture and refrain from rigorous academic pursuit to ingratiate himself with his academic supervisor?

Another, deeply concerning case in the press last year involved Julia Rynkiewicz, a 25-year-old Catholic midwifery student, who was suspended from entering her programme’s hospital placement phase after her university learned of her leadership of a pro-life student group. She was subjected to a four-month fitness to practise investigation in 2019. Ultimately, she was completely vindicated of any wrongdoing and received an apology from her university, but she had already lost one year of her academic studies, and was, understandably, deeply distressed.

In their evidence, Professors Goodwin and Kaufmann were clear that the protection of academic freedom should apply not just to established academics, but to doctoral students. Indeed, their evidence was that students are the most likely to self-censor. Students do not want to irritate their colleagues or suffer reputational or educational consequences that will harm their career prospects. Professor Goodwin told the Committee:

“we know clearly from the King’s study…that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q186.]

My concern is that the very welcome clarity in the Bill concerning the protection of academic freedom for staff will function as a double-edged interpretive sword by excluding academic freedom for anyone who is not a staff member. Without the express inclusion of students, there is a risk.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

The hon. Lady is making an important point for research students. I am just not quite sure how these points relate to all taught students. Being a taught student sometimes requires instruction in order to learn the basics. Although we like to think higher education institutions are purely about thinking and knowledge generation, the reality is that the first year and the foundation years run out of universities are instructional and directive. That is important because students have to understand the basics of current academic knowledge before they can challenge it. I am just worried. Does the hon. Lady see the amendment including instructional elements for students so that they could reject information about, say, how lenses work, if they are studying to be optometrists? Or does she mean research students and other students involved in the creation of knowledge? Would an amendment that explicitly said “students involved in the creation of knowledge” therefore be better?

Fiona Bruce (Conservative, Congleton)

I hear what the hon. Gentleman says. I would like to think that the very concerning case of the midwifery student is a case in point.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I recognise the point that the hon. Lady is making. My concern is with the definition of academic freedom applying to academics and therefore not being applicable to students. I draw her attention to my amendment 44, which would insert the words

“and in the conduct of research”

to cover PhD students and other students involved in research. The point my hon. Friend the Member for Brighton, Kemptown was making was that we cannot say that academic freedom, in its entirety, which belongs to academics, can apply to every student, whereas students involved in the conduct of research behave more like academics, so it could apply to them. That is my issue with the amendment.

Fiona Bruce (Conservative, Congleton)

I thank the hon. Lady for that gracious intervention. It is a pity that I cannot speak to amendment 60 in the same moment, because I think that would help clarify my reasoning for this amendment. I am concerned that without the express inclusion of students, there is a risk that those most vulnerable to self-censorship and adverse consequences in academia, such as being marked down, will remain unprotected.

There is the argument that freedom of speech, as referred to in the Bill, is sufficient to adequately cover students without the need to cover them through the term “academic freedom”. However, I would question that, as demonstrated by the examples I have given involving Professor Biggar and the midwifery student. I look forward to the Minister’s comments and ask her to consider the amendment as the Bill progresses.

Matt Western (Labour, Warwick and Leamington)

It is a pleasure to serve under your chairmanship, Mrs Cummins. I listened to what the hon. Member for Congleton said. We have to be wary of where the amendment could take us in terms of the status conferred on academics by the term “academic freedom”. As the Minister herself said, it is a subset of a freedom of speech, but it is a really important one. That is why we sought to eke that out earlier, in order to make it sacrosanct: it stands alone, but it is linked to freedom of speech.

As regards the notion that students in their third week on campus could gain the status of academic freedom, I am not entirely sure, speaking from personal experience, that it would have been right for me to have been given that status when I had a degree of naivety about a particular subject, but I would be under the hon. Member for Congleton’s amendment. I do not think that that is right, because we are essentially putting students on the same level as those who have gone through a process of academic rigour to arrive at a position where they deserve this particular freedom and status.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

rose—

John Hayes (Conservative, South Holland and The Deepings)

rose—

Matt Western (Labour, Warwick and Leamington)

I will give way to my hon. Friend first.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

We all agree that we want freedom of speech to apply to students. I wonder whether, as the Bill progresses, we might find an alternative place to make specific reference to them.

Matt Western (Labour, Warwick and Leamington)

I now give way to the right hon. Gentleman.

John Hayes (Conservative, South Holland and The Deepings)

I am very grateful to the hon. Gentleman for giving way. I take his point about the technical difficulties with what is proposed. He is right about the different status and, indeed, different challenges faced by students and teachers. None the less, as my hon. Friend the Member for Congleton said, there is an issue—we heard this in evidence—about students self-censoring, and students may fear that they cannot say what they think. That could be outside teaching or it could be in seminars and so on. Therefore we do need to address the issue of students. Whether or not this proposal is the best vehicle to do so, I am sure the hon. Gentleman would agree with that.

Matt Western (Labour, Warwick and Leamington)

I thank the right hon. Gentleman for his point and, likewise, my hon. Friend the Member for Kingston upon Hull West and Hessle for hers. I accept that there is a need for protection under freedom of speech. The differentiator for me is about academic freedom. I totally concur that all students, whether they be postdoctoral students or students in week two, arriving on campus in September or October of this year, have the right to freedom of speech, to say what they wish to say—with responsibility. But there is an area where I differ, and this was what I was edging towards in my questioning to various academics during the two witness sessions. What Professor Stock actually said was interesting. She made this very distinction. She thinks that

“the difference between academic freedom and freedom of expression”—

I am quoting her word for word—

“assuming there is one, can only be in principle grounded in expertise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q17.]

That is the case however we wish to define that expertise. And there is a problem, actually, about how people might consider what expertise is. I would say that the expertise is much more to do with methodology and understanding of academic rigour and discipline and how an academic arrives at a process of thinking, which a student is not necessarily—

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

A student is learning.

Matt Western (Labour, Warwick and Leamington)

Yes, learning—going through that development. That is why students are attracted to going into higher education. It is to understand about the process of that academic rigour and methodology.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Some of the evidence that we heard from a number of the Government and Opposition witnesses was that, actually, part of the problem is the commercialisation in higher education, whereby students see themselves as customers and consumers and then demand more and demand their rights. There are some advantages to that, but there are clearly some disadvantages to it. There is a danger, is there not, that if this were used in the consumeristic mind of certain students, it could prevent the instruction of certain basics that students must accept to progress? Students could claim, “You’re not letting me progress even though I reject the way light moves through a lens.” It is perfectly legitimate for an academic to do that at a higher level, but if someone is teaching optometry, they require the student to accept certain basic principles to be able to progress and to look into people’s eyes. There is a danger that, with a consumeristic mind and with a more litigious mind, some students might end up shutting down academics and actually stopping them doing their instructive part rather than their research part.

Matt Western (Labour, Warwick and Leamington)

I thank my hon. Friend for his, as ever, valuable contribution—and specialism of optometry. I always try to look through a rose-tinted lens. More seriously, the point he makes is made very well—[Interruption.] I missed that point. To be serious for a moment, my hon. Friend’s point is well made. It is about consumerism. I guess one of the things that motivated me to get into politics was that, as a kid of the 1960s and ’70s, I enjoyed education and access to all sorts of things without the privilege of money. We need to row back on how consumerism is becoming so corrosive of relationships between all sorts of authorities—I am not talking only about universities. How people view public service, in whatever manifestation, seems somehow to be about getting one’s money’s worth, whether on council tax or, in this case, educational fees.

To my mind, it is important that anyone who is able and keen to go to any form of higher education understands that it is a privilege, whatever they choose to study. That does not somehow give them the right to do or say certain things, just because they are paying £9,000—or £30,000 or £50,000 in total over three years—for that privilege. We need to disconnect that consumerist mentality from that kind of thinking, because it is damaging to relationships between academics, institutions and student cohorts.

Fiona Bruce (Conservative, Congleton)

Will the hon. Gentleman reflect for a moment on the position of doctoral students, which was mentioned by Professors Goodwin and Kaufmann? A student studying for a doctorate has considerable expertise in their field and, at the same time, might be tutoring some more junior students—undergraduates. Is it not a somewhat distorted situation and a strange irony that they could claim the protection of academic freedom for anything said in the tutoring, but not as a doctoral student?

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

rose—

Matt Western (Labour, Warwick and Leamington)

I will give way to my hon. Friend, and respond to the interventions together.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I am sorry, Mrs Cummins, I did not realise that in declaring our interests we had to say what our partners do. My partner is at the University of Hull doing degree apprenticeships, which I am very proud of.

To respond to the hon. Member for Congleton, our amendment 44 includes the words

“and in the conduct of research”,

to close the loophole that she has just mentioned, of a doctoral student involved in research. We would like to close the loophole with that amendment.

Matt Western (Labour, Warwick and Leamington)

I thank the hon. Member for Congleton and my hon. Friend for their interventions. Yes, there is a differentiation between doctoral and undergraduate students.

Vitally, with academic freedom, special status is conferred. It is not something someone gets just because they turn up on a campus, or sign up to the Open University or whatever; it has to be conferred on those individuals who are, in essence, academics in the traditional sense. What they have is founded on their research—that thinking, the methodology, the scholarly debate. Ultimately, because their work is peer reviewed, it is understood to have a robust methodology. They have earned that—I used “earned” in the witness sessions, which was perhaps slightly the wrong word, and there might be a better word. It is an appreciation that the academic has gone through the academic thinking that has led them to express a particular thought or piece of research and outcome.

To my mind, that is the essential element, the primacy of academic freedom, which is why it is so important to separate it out from freedom of speech—hence our points this morning. Academic freedom defends the right to express ideas based not simply on opinion, but on academic research. I stress that point.

In the evidence session, the hon. Member for Congleton said:

“I am thinking not only that academic freedom is important generally for anyone at a university, but that some students, such as doctoral students, may also be tutoring.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q196.]

As she said earlier, that is an important distinction because that role has been given to them by the university. It has conferred on that person a status, and there is a responsibility that goes with it. That is a very important distinction.

John McDonnell (Labour, Hayes and Harlington)

I really do think that the hon. Member for Congleton has a point. The issue is how we define that point. I hope that it applies retrospectively as well, because I would not mind challenging some of my essay marks from about 50 years ago.

The point is that the only way that a large number of students can finance their PhD research is by doing separate tutoring at the university, and therefore they have an academic status. Somehow we must find a form of wording for this Bill that protects them. At the moment, it is too loose. Colleagues have tabled other amendments—actually, I have tabled amendment 45, which focuses on innovative research. I am fearful that someone who, like me, is a pain could challenge their mark for a particular essay purely and simply because they disagree with what is being taught, even if they are wrong.

One of the biggest contentious issues at the moment is climate change. There are rows going on while academics are trying to identify a whole range of the causes of climate change as well as some solutions to it, and it is incredibly contentious. Lecturers and professors do have a responsibility to point out where they think something is wrong or ludicrous, and mark it down on that basis.

John Hayes (Conservative, South Holland and The Deepings)

The right hon. Gentleman makes an extremely important point. It is easy to mistakenly see this through the prism of political ideas. However, it is actually not just about political ideas, but about all kinds of challenges to orthodoxy. Some of those challenges will be scientific, some will be technological and some will be about philosophical principles, which are not to do with the politics we enjoy here. The right hon. Gentleman is right: innovation is a much bigger subject than political debate.

John McDonnell (Labour, Hayes and Harlington)

There are even elements in science itself where there are really contentious issues and we know that some scientific theories are being brought forward for political motives—we have seen that around race in the past, about genetics linked to racial groups and so on—but an academic would throw the whole essay out on that basis. There are some really contentious issues here.

The hon. Member for Congleton is right to point out the issue of non-inclusion of students, but we must find a definition that enables us to ensure that there is a level of academic expertise at which the student should be operating, which qualifies that person to have academic freedom and the right to free speech. I think that is very difficult.

To come on to the point made by my hon. Friend the Member for Brighton, Kemptown, in academia, people are now extremely litigious. They will challenge individual gradings or the award of the degree classification. What we often find now—ask any university—is that a large amount of money and time is being spent on defending the awarding of degrees due to this sense of being a consumer, of buying a product. It is as though they are challenging the quality of the degree awarded as though it were a washing machine. There is a real issue here.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

My right hon. Friend makes some good points about the litigiousness, but also about the ability that people have to challenge the status quo to create knowledge. That is when they then take part in research, and that is when they then take part in the production of knowledge.

For undergraduates, however, and even sometimes in taught masters programmes, particularly for professional qualifications, it is about instruction. Very often, in that purpose of instruction, students should be able to make an argument that is not their own. Their teachers want to say to them, “If you just make your own argument, I am going to mark you down.” We talked in the evidence sessions about debating societies. Teachers want to say to their students, “If you produce an essay which is your own argument, that is not going to be highly regarded. I want you to produce something you might vehemently disagree with, but that is the point of this exercise.”

There is a danger that, if students are given personal academic freedom, they will say, “Well, that is not my view. I have got an academic freedom to express what my view is.” The distinction must be between taught and research, and between the creation of knowledge and instruction. The flipside is a researcher or university member of staff enrolling in a course for academic interest, and then taking on a different role as a student and being instructed. The freedom does not stay with the person; the freedom is the role that the person is undertaking at that moment.

John McDonnell (Labour, Hayes and Harlington)

Right, I am waiting for the Minister to say that this will be covered in guidance. On this occasion, I might well support her, because it is complicated. It is a combination of the level of the degree and the content and status of the research. In some instances, there will be very specific examples and we will see it playing out in individual cases and challenges setting a precedent. If we are not careful, I can see the vista being lawyers making a huge amount of money at the expense of universities.

The hon. Member for Congleton has raised a genuine issue and we should address it with subtlety, recognising that it could open the doors to a whole range of activities that would burden universities and confuse the individual academics and students themselves. I look forward to the guidance.

Michelle Donelan (Conservative, Chippenham)

It is a pleasure to work with you today, Mrs Cummins. These amendments seek to extend academic freedom protections to students as well as academic staff. Where clause 1 provides that higher education providers must take reasonably practical steps to secure freedom of speech for staff and members, as well as students and visiting speakers, this includes securing the academic freedom of academic staff. Academic staff have studied and researched for many years to reach the positions they hold. It is wrong for them to fear for their jobs or career because they have taken a minority view or put forward a controversial opinion.

I am pleased to reassure Committee members that the Bill goes further than previous legislation, broadening the definition of academic freedom so that it will include promotion and new applicants for academic positions. Indeed, it goes even further, in that all academic staff, not just employees, will have the benefit of academic freedom. That means that the Bill covers those who hold honorary positions, whether they are paid or not, as well as PhD students who teach undergraduates.

I must be clear that the additional protections afforded by academic freedom are relevant only to the academic staff of a provider. That is because the provision is about the risk of losing one’s job or the possibility of promotion, which are not issues that apply to students.

Fiona Bruce (Conservative, Congleton)

I am listening very carefully to my hon. Friend, as I did to the right hon. Member for Hayes and Harlington. It was refreshing to hear him make common cause with me, and I appreciate it. If academic freedom is not to be extended to students, would freedom of speech under this Bill have covered the situation of the midwifery student who lost a year of her academic life? It is a very important point and I would appreciate it if the Minister reflected on it.

Michelle Donelan (Conservative, Chippenham)

While it would not be appropriate for me to outline how the Bill would apply to a retrospective individual case, I can give guarantees that in broad terms it will be comprehensive, and freedom of speech will cover students in a range of scenarios, so it is not necessary to include academic freedom for students. However, I have listened to the arguments that have been made today, and I will keep them under consideration.

Fiona Bruce (Conservative, Congleton)

I thank the Minister for her promise to keep under consideration the points that have been made today by Members on both sides of the Committee, and I look forward to her returning to this issue as the Bill progresses. I beg to ask leave to withdraw the amendment.

John Hayes (Conservative, South Holland and The Deepings)

I beg to move amendment 80, in clause 1, page 2, leave out lines 9 to 14 and insert—

“(6) In this Part, ‘academic freedom’, in relation to academic staff at a registered higher education provider, includes their freedom within the law—

(a) to question and test received wisdom,

(b) to put forward new ideas and controversial or unpopular opinions, and

(c) to design and deliver their own teaching, notwithstanding direction as to the topic or occasion of their teaching,”.

This amendment affirms the freedom of academic staff to exercise their professional judgment in the design and delivery of their teaching. It allows that Departments may nonetheless direct academic staff as to the topic on which they should teach, and when.

Judith Cummins (Labour, Bradford South)

With this it will be convenient to discuss the following:

Amendment 28, in clause 1, page 2, line 10, leave out from “provider” to the end of line 16 and insert “includes freedom—

(a) to question and test received wisdom,

(b) to put forward new ideas and controversial or unpopular opinions, and

(c) to express opinions about a registered higher education provider, including without limitation opinions concerning its curricula, governance, affiliations and the teaching and research conducted at the provider,

without unlawful interference, and without being adversely affected (or being placed at risk of being adversely affected) in any of the ways described in subsection (7).”

This amendment would enshrine the protections afforded to academics under ECHR case law (Article 10) to speak about their institution without unlawful interference.

Amendment 27, in clause 1, page 2, line 11, leave out

“within their field of expertise”.

This amendment aims to ensure that the definition of “academic freedom” is not restricted by a requirement for it to be exercised within an academic staff’s “field of expertise”.

Amendment 45, in clause 1, page 2, line 13, after “new ideas” insert “, innovative research”.

This amendment would expand the definition of academic freedom to encompass innovative research carried out by academics.

Amendment 46, in clause 1, page 2, line 14, at end insert—

“(c) to freely pursue chosen topics for teaching and research without government or institutional interference, and

(d) to express their opinions in relation to higher education providers, including that at which they are employed,”.

This amendment would expand the definition of academic freedom to encompass an academic’s ability to freely pursue chosen topics for teaching and research, free from external interference, and express an opinion in relation to a higher education provider.

Amendment 49, in clause 1, page 2, line 14, at end insert—

“(c) to criticise or otherwise express opinions about—

(i) the governance of the higher education institution, and

(ii) decisions taken by the higher education institution, including decisions about affiliations with other bodies,”.

This amendment would provide protection to academics, under the auspices of academic freedom, to express opinions about the governance, decisions and affiliations of higher education institutions.

Amendment 47, in clause 1, page 2, line 20, after “the provider” insert “or other providers”.

This amendment seeks to expand the ways in which an academic cannot be adversely affected due to an exercise of their academic freedom, to include loss of their job or privileges at any other provider.

Amendment 48, in clause 1, page 2, line 20, at end insert—

“(c) the denial of a just and open path for career development, including fair procedures for appointment”.

This amendment seeks to expand the ways in which an academic cannot be adversely affected due to an exercise of their academic freedom to include the denial of a just and open path for career development.

Amendment 60, in clause 1, page 2, line 20, at end insert—

“and

(c) adverse impact on educational progress.”

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

Amendment 57, in clause 1, page 2, line 28, leave out

“and within their field of expertise”.

This amendment is consequential on Amendment 27.

Amendment 58, in schedule, page 15, line 17, leave out

“and within their field of expertise”.

This amendment is consequential on Amendment 27.

Amendment 68, in schedule, page 15, line 27, at end insert—

“and

(a) adverse impact on educational progress.”

This amendment seeks to protect the right of academic freedom for students in addition to academic staff.

John Hayes (Conservative, South Holland and The Deepings)

My amendment would have been pertinent in any case, but it has been made more so by the debate we have just had and the progress of the Committee so far, which has drawn our attention to the distinction between freedom of speech and academic freedom. That was made clear in the evidence sessions by a variety of witnesses, and it has been amplified today by speakers from both sides of the Committee. My amendment attempts to revisit that matter and add it to the Bill.

This is not a straightforward affair, as has been widely acknowledged by the Committee. As the Minister has made clear, freedom of speech is a broad term, and it might be said to be sufficiently broad to encompass a range of liberties, including academic freedom. But there is something specific about academic freedom, and this is rooted in the very principle of university learning. I could wax lyrical about John Henry Newman and the idea of a university, but you would not allow me to do so, Mrs Cummins, and the Committee would not thank me for doing so. The Whips certainly would not, given that it would prolong our proceedings unduly.

The essence of university education is giving academics the space to innovate, as the right hon. Member for Hayes and Harlington made clear in his last contribution, but it is also about fuelling intellectual curiosity, which leads to creativity. That could be in all kinds of spheres of work. We are inclined, because of who we are and the job that we do, to see this through the prism of political discourse, but it is much wider than that. We really do need to recognise that academic freedom is a fundamental part of allowing that curious creativity, if I can put it in those terms, to flourish in our places of learning. There is some evidence, from what we have heard, that that is being restricted—being stymied, one might say. That is partly because, in the words of Professor Goodwin, many academics

“no longer feel particularly welcome, safe, secure, or ultimately able to say what they really think, and for every one of me, there are 20 or 30 people behind me who do not feel able to come and speak and voice their concerns”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 100, Q208.]

as he did when he gave evidence. There is a concern that some academics feel as though their academic freedom is being restricted.

We also heard from witnesses what that academic freedom amounts to, and I have tried to reproduce those ideas in my amendment. They include the freedom

“to question and test received wisdom…to put forward new ideas”

and have those scrutinised, too, even where they are unpopular or controversial. The hon. Member for Brighton, Kemptown said that one of the tests of a good student is their ability to make a case that they do not believe in. By the way, I could say the same about a good teacher. When I taught at university before I became a Minister in 2010, I would often advance arguments that bore no relation whatsoever to what I thought, because I was teaching government and politics. All good teachers do that, all the time, and students should be tested on that basis too, exactly as the hon. Gentleman describes. That is what a vital and creative learning environment is all about. I think Members on both sides of this Committee would want to see that reinforced by the provisions of this Bill, and that is precisely what I am trying to do in my amendment.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

Will the right hon. Gentleman give way?

John Hayes (Conservative, South Holland and The Deepings)

I will in a moment, but now that I am flowing poetically I do not want the hon. Gentleman to break into the stanza. [Interruption.] All of these things are a matter of opinion, John. There is also a point about what I might describe as top-down pressure. We know—Members who have been involved in higher education, including many on this Committee, will be familiar with this—that there is often a tension between university management and particular university departments; between the academic staff and the senior management team who are often long detached from their original academic roots. It is a concern that sometimes university authorities will instruct academics to teach particular things, possibly even in a particular way. Defending the integrity of the people at the academic coalface is really important, and that is what the second part of my amendment seeks to do.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

rose—

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

rose—

John Hayes (Conservative, South Holland and The Deepings)

To whom should I give way first? I am terribly old fashioned, so I shall give way to the hon. Lady.

John McDonnell (Labour, Hayes and Harlington)

Don’t fall for it!

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

As a former teacher who had the statutory national curriculum and regular reviews from Ofsted on the best way to teach x, y and z, there is part of me that reads the right hon. Gentleman’s proposed paragraph (c) and thinks, “Wonderful! Yes, the passion and the ability to teach in the way you want on the subjects you want”. However, as has been alluded to—and this is where we get to the detail of it—there are subjects at university that require things to be taught in a particular way to get through a certain amount of basic knowledge components on that course. It might be suitable for some courses, such as government and politics, where there can be greater freedom, but studying medicine, for example, might need to be more instructive. Therefore, much as in my heart I am with him, in my head I find that, as it stands, it is not quite the right sentiment.

John Hayes (Conservative, South Holland and The Deepings)

I am pretty certain that the hon. Member for Brighton, Kemptown is going to make a similar point, but I will let him do so when I give way to him.

Of course, the hon. Member for Kingston upon Hull West and Hessle is right that it cannot be a free-for-all. Every academic knows what their professional duty is: to transmit a body of knowledge, but also to stimulate a range of ideas, to stimulate people to think freely and openly about the subject matter, which they are missioned to teach and their students are missioned to study. I take the hon. Lady’s point. The amendment is not saying, “Do what you like and it really does not matter”, because in the end academics have a responsibility to their students. That is an important professional duty as well as a responsibility. We must not be too permissive in our approach to what academics can or cannot say and do. However, I am just as concerned—in fact, I am more concerned—about the character of leadership in some universities.

We have talked informally outside this Committee about governance and accountability within universities. When the Minister has a spare moment after getting this Bill on the statute book and is looking for her next Bill, I think that all of us across this House, including those on the Front Bench, should spend time reflecting on and considering the very important issue of university governance.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I broadly agree with what the right hon. Gentleman says and with the subsequent amendments, some of which say similar things. My problem is around academic rigour, which universities must ensure is provided. Would he address the issue as it relates to basic instructional courses such as optometry, or any of the life sciences. I mention optometry because the University of Bradford has a very good optometry department. I have mentioned my connections with the University of Bradford, the University of Sussex and University and College Union before, and it is on the Register of Members’ Financial Interests. It might be dealt with better in regulation than on the face of the Bill, but might there be something to be said for the freedom of the academics to sit around the table and work out their plans without interference from management, rather than the freedom of an academic to decide what they do?

I put that forward because academics sit down together and work out a course of teaching, so they have a duty to sometimes challenge each other and say, “You need to teach this. You might not want to, but we need to get through it.” Could the wording around that be better? It would also address some of the right hon. Gentleman’s points on how academics have been removed from the management of course design over the years, and could restore their role at the heart of course design and teaching and learning. That would be a move forward.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman is of course right about the changing balance of power within universities. Many senates no longer play the role they once did routinely. If anything, universities have become more pyramidical in their management structure. It is and always has been important to ensure rigour in the disciplines he describes, and validation of courses, including external validation, is an important part of assuring that rigour. I have been involved in that myself.

I take the hon. Gentleman’s point, but my worry is that these days there may even be ideological top-down instruction, so that one has to sanitise one’s curriculum in a particular way. It might be politically motivated, but it might be, as the right hon. Member for Hayes and Harlington implied, about all kinds of other things. It is not all about politics; it is sometimes about non-political orthodoxies. The whole point about academic freedom is that one can challenge what are assumed to be a priori assumptions. That is what the greatest among us have done over time.

I think I can find further agreement with the hon. Gentleman. The wording added may require further work to reflect the sentiment he articulated, but my purpose in tabling the amendment is to get the Government to think again about the relationship between freedom of speech and academic freedom, which populated quite a lot of the evidence we received from witnesses. The concern that we, across the Committee, and the witnesses shared is that academic freedom should, of itself, be placed at the heart of the consideration. The Minister has been reassuring about that, and what she has said so far publicly and in Committee encourages me, but I wonder if we need something in the Bill to reinforce the point.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

As I said, my heart is definitely in agreement with the principles being outlined, but one of the depressing realities we face—I know this from a particular university—is universities having to drop courses because they are not as marketable and attractive to students and they cannot get the people on. Universities are making decisions to wipe out entire courses, because it costs too much to run them. I would love to say that, yes, academics should have complete freedom to design and deliver courses however they want, but we have to be mindful that there is a cost involved. There have to be some conversations with the management team about whether the course they are putting on will make ends meet and will not end up costing university more in the long run. I wish we did not have to talk about this.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Lady now really is opening a hornet’s nest with the issue of money, how universities are motivated, and how far that is skewed. I have struggled against the narrow interpretation of learning as an entirely utilitarian matter for all my political career, including my ministerial career. As Committee members will know, I was a stout defender of adult and community learning, not because it was necessarily and directly linked to employment, but because it fed societal wellbeing. Let us make the case for the glory of learning for its own sake.

The hon. Lady provoked me into that digression, Mrs Cummins, but she is right to say that sometimes universities are driven by those utilitarian purposes, hence my point about senior management. We have recently heard about money from outside sources—China was mentioned in our witness sessions, and rightly so, given recent revelations. There are all kinds of ways in which what is taught and learnt at universities can be altered by factors that go well beyond the interests of either academics or students. I am concerned about the matters that the hon. Lady has raised, and the Government will have a watchful eye on all that, too.

I have a fundamental disagreement with Opposition Members, in that I think the Bill is welcome and a good thing. I know that they have reservations. However, I am equally sure that if the Bill is to be effective, it needs to be as well drafted as it can be. That is precisely what scrutiny is designed to do. In that respect, drawing out and codifying the distinction in some way seems to me to have value. I make no definitive judgment about how that should be done; my amendment is very much a first stab.

I should not say before the Minister has spoken that I will not press the amendment to a Division, or I will extract no concessions from her. Instead, I shall hang on, hold fire, and hear what she has to say. The amendment is very much designed to push and probe the Government, but if she says it is a complete load of nonsense, I will have to test the Committee’s view.

I feel some responsibility to reflect the fact that the amendment is one of a group. There are some very good amendments in the group, tabled by Members on both sides. I will not name them all, but amendment 48, in the name of the hon. Member for Warwick and Leamington, is helpful, and amendment 60, in the name of my hon. Friend the Member for Congleton, brings value to what we are doing. A number of strong amendments in the group are designed in a constructive way to hone and improve the Bill. I will not go through them all because that would be tedious and people can speak for themselves, but there are some good amendments worthy of further consideration by the Committee and the Government.

Matt Western (Labour, Warwick and Leamington)

I thank the right hon. Gentleman for his remarks and his amendment, which has generated a huge amount of debate. It is interesting that several of us have had a go at the same provision to embellish and improve it. The definition of academic freedom is loose and hard to pin down. The fact that three amendments are addressing it emphasises how concerned we all are about how it is defined.

The right hon. Gentleman’s amendment seeks to expand academic freedom to encompass how a teacher delivers their classes. The amendment tabled by the hon. Member for Congleton goes a little further in seeking to protect academics under the umbrella of academic freedom whenever they express an opinion about the practices of a provider. I guess that this is where we get into subjective interpretations of what academic freedom should be.

During my research I came across part 6 of the UNESCO definition of academic freedom, which guides my thinking and that behind amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington. Under the UNESCO definition, the concept of academic freedom is broken down into five parts: freedom of teaching and discussion; freedom in carrying out research and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work; freedom from institutional censorship; and freedom to participate in professional or representative academic bodies.

My concern about the amendments tabled by the right hon. Gentleman and the hon. Member for Congleton is that they are trying to nail down a definition, but may have left out a couple of crucial components. Amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington, is a compromise with the position of the right hon. Gentleman and the hon. Lady. It touches on two of the most of crucial elements in providing that clarity: freely pursuing chosen topics and expressing views of their institution. Interestingly, the University and College Union favours an amendment in the realm of ours. It is also deeply concerned that narrowing the definition of academic freedom will limit the ability and willingness of education staff to speak out on wider social or political issues, or indeed against their employers. An amendment such as ours would offer expansive protection for the academic freedom of staff, including from pressure and censorship by public authorities like the Department for Education and the Office for Students or by employers.

The amendments would offer protection against redundancies targeted at particular academic disciplines or those perceived to be politically motivated.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

My mistake, Mrs Cummins, for not realising that the amendments are grouped and that I should be talking about all of them. An aspect of academic freedom and the importance that we want the Bill to place on the role of academics is illustrated by amendment 27, tabled by the hon. Member for Congleton. We should not restrict academics with the narrow definition including:

“within their field of expertise”.

We do not know who will make the definition. That is an important issue, too.

Matt Western (Labour, Warwick and Leamington)

I thank my hon. Friend and I shall address that important point shortly.

Amendment 47 would protect academics against not securing promotion in respect of different jobs in other institutions. It aims to ensure that academic freedom is protected across the range of roles that someone may hold, not simply where an issue may arise. For instance, an academic may be employed by two HE institutions or hold various visiting professorships. The amendment would ensure that an institution cannot punish an academic for disagreeing with research or published work at another institution.

This links with open, transparent career development —an honest approach. We heard from Tom Simpson that decisions on research grants and appointments are made in the culture of the office. To a certain extent, that is inevitable. That is the reality of how organisations work, but I get what he was trying to say. Amendment 48 would prevent a university from denying training opportunities. as a way to punish an academic for the views they hold. The essential difference from our amendments is that they seek to protect those who can benefit from academic freedom.

Amendment 60, tabled by the hon. Member for Congleton, on the inclusion of adverse impacts on educational progress, implies that academic freedom ought to be given to students. We had a long debate about that. I have reservations about it, and I am not convinced by the argument that was made in the previous debate. The experience that I have gleaned from discussions with higher education institutions in the past six months is that many assessment methods are anonymised. Each student is given a unique number and papers or their equivalent are marked by several academics to avoid discrimination. Institutions do their utmost to ensure that discrimination does not prevail and damage students’ progress.

For those who can and should benefit from academic freedom, I have sought to expand the definition to include innovative research. Amendment 45 would ensure that the definition of academic freedom includes the world-class innovative work carried out in our universities. The current definition in the Bill simply covers new ideas or controversial or unpopular opinions, but most of the socially or scientifically beneficial or prize work conducted by academics is innovative, rather than falling into those narrow categories. The right hon. Member for South Holland and The Deepings expanded on that point, and said that it would be valuable to include that, mentioning Galileo and Darwin, who conducted innovative research centuries. The two go hand in hand. Think about Rosalind Franklin and the ground-breaking work she did in the face of a counter-view in society about genetics; she clearly did incredibly important research. More recently, we have Oxford’s work on vaccines. That kind of work has to be protected at all costs.

One of our witnesses, Dr Ahmed, believes that certain forces are leading academics not to pursue lines of research that they think might be fruitful. Research is fundamental, and it is important to protect it. I can well understand the perspective of institutions on the work that is done and why they seek to have some sort of direction over research and teaching wherever possible. Various Members, however, spoke about how institutions present themselves in what has become an incredibly marketised sector. The institutions did not create that situation; it is the result of what was put in place years ago, and they have to respond not just to a UK market but to a global market for higher education. They are trying to appeal to the needs of the UK, what students wish to study and what research is needed, as well as looking at trends, approaches and the needs of global society.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I risk straying from the Bill, so I will be quick. The evidence that we heard and our discussions today show that the marketisation of higher education has had a negative impact on the student experience. I hope that the Minister takes that evidence seriously, as well as the remarks that Members on both sides of the Committee have made about the impact of marketisation on education, so that in a future Bill Committee we can secure consensus on an alternative model.

Matt Western (Labour, Warwick and Leamington)

I thank my hon. Friend for her intervention. I totally agree.

In response to the point raised by right hon. Member for South Holland and The Deepings about the detransitioning research at the University of Bath, Professor Whittle said that

“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]

The amendment would incorporate innovative research under the academic freedom duty, which would push the likes of the University of Bath towards exploring further how such research proposals can be encouraged.

The issue goes both ways and cuts across the political divide, as we have heard. A briefing I received from Ruth Pearce from the Center for Applied Transgender Studies revealed examples of where research has been disrupted by aggressive anti-liberal voices. That included Peel and Newman’s survey on legal gender, which received an uptick in polarised, confrontational responses after being shared on a UK anti-trans forum. Stein and Appel describe how a survey on young LGBTQ people’s experience of cyber-bullying in Germany was derailed, with nearly every dataset containing expletives and hate speech.

That work needs to be protected under the legislation, and most academics would agree that this kind of work falls within their academic freedom. Amendment 47 would also bring us in line with the German model, which is based on the Humboldtian approach and focuses on the unity of teaching and research, with both staff and students able to enjoy academic freedom. It is important to include innovation within the definition of academic freedom in the Bill.

Amendment 27 addresses the point about field of expertise, which was raised by the hon. Member for Congleton. I share some concerns about this, as do my colleagues. Indeed, my hon. Friend the Member for Kingston upon Hull West and Hessle commented in the evidence session on the submission from Professor Anderson, saying:

“His concern is around changing the wording in the Bill from ‘freedom within the law to question and test received wisdom’ to ‘freedom within the law and within their field of expertise’.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 10, Q17.]

I have concerns that a Bill allegedly intended to promote academic freedom could limit it if people are limited to what their field of expertise is.

John Hayes (Conservative, South Holland and The Deepings)

rose—

Matt Western (Labour, Warwick and Leamington)

And speaking of expertise.

John Hayes (Conservative, South Holland and The Deepings)

I entirely agree, and I wanted to say that on the record. Professor Biggar made that point, too, as the hon. Gentleman will remember. The problem is how we define someone’s field of expertise. If we define it too narrowly, they will not be covered. The Minister, I know, will have an explanation of this and a counter-argument that may satisfy us, but I am concerned, as witnesses were and the hon. Gentleman is, that we risk getting this wrong in the Bill unless we take account of the fact that people’s field of expertise is often broader than the definition of what they do professionally. Expertise is a complex thing. I think we need to look again at this. I am sure the Government will have heard what the hon. Gentleman and others have said.

Matt Western (Labour, Warwick and Leamington)

I thank the right hon. Gentleman for his intervention. Yes, we heard virtually all the academic witnesses and others express the importance of this point. Dr Ahmed, referring to Professor Stock, spoke about Professor Richard Dawkins, saying:

“theology is not his area of expertise. Many…would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q18.]

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

This is crucial. This small amendment would remove five words from the Bill; it is incredibly small and very easy for the Minister to agree, but incredibly important. If the Bill is what it is claimed to be—a Bill on freedom of speech and academic freedom—and if the Minister honestly believes that that is what is written here, she will accept the amendment to remove

“within their field of expertise”,

because that is a limitation on academic freedom. It is clear, and no future guidance will change it. If those words are left in the Bill, academic freedom is limited. I cannot put it any more strongly than that. All the evidence we heard made the same point. I hope the Minister will accept the amendment.

Matt Western (Labour, Warwick and Leamington)

I thank my hon. Friend again for a valuable intervention.

John Hayes (Conservative, South Holland and The Deepings)

Is this not about areas of interest versus fields of expertise? An academic may have areas of interest that extend beyond the strict and narrow definition of their expertise in their subject. By using that sort of term—I am sure the lawyers will go one better—we might be able to solve the problem.

Matt Western (Labour, Warwick and Leamington)

I thank my—I was about to say hon. Friend. I thank the right hon. Gentleman for that point. I am sure that my hon. Friend the Member for Kingston upon Hull West and Hessle will elaborate.

The reality of the academic community in higher education is that their areas of work are fluid. They do not see themselves as necessarily specialists in one field or another. As we heard in our evidence session, a statistician is a mathematician, but a mathematician could become a specialist or well versed in issues such as migration or epidemiology—medical science, in essence. How does one define “their area of expertise”? We have to be extremely careful. The right hon. Gentleman’s suggestion may well be in the right area, but much more consideration is needed, and for the purposes of the Bill we have to remove these words.

I will not expand on what Professor Nigel Biggar said. That has been done already.

Charlotte Nichols (Labour, Warrington North)

On amendment 27, I am interested in what form of words other than

“within their field of expertise”

could be used to act as a safeguard, because we might see cases in which academics are picked up for use of their freedom of speech more widely, but there is a distinction between freedom of speech and academic freedom.

Matt Western (Labour, Warwick and Leamington)

My hon. Friend is quite right. We have not proposed anything that necessarily refines that. At this stage, I think, it is important to remove the words, and minds greater than mine—perhaps in the House of Lords—may come up with an alternative. It is a really important area that needs to be defined.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

My hon. Friend has already developed the phraseology and wording in his comments about research and academic interest. Were a matter within an academic’s research and interest areas, that would be their definition. It would be broad enough; it would also go to amendment 80 and the right to teach in areas of their academic interest and research, and resolve my concerns about that amendment. It would be good if the Government were to reflect on that phraseology.

Matt Western (Labour, Warwick and Leamington)

I totally agree.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

The original definition of academic freedom did not have these five additional words. The Government chose to add them. I do not believe we need to rewrite or put in words. Originally, the definition of academic freedom was:

“freedom within the law to question and test received wisdom…put forward new ideas and controversial or unpopular opinions, without placing themselves at risk”.

The Government added the unnecessary words

“and within their field of expertise”.

Matt Western (Labour, Warwick and Leamington)

My hon. Friend is right. I sense that we agree across the Committee—

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Some of us.

Matt Western (Labour, Warwick and Leamington)

Some of us are agreed that it should not be in there, and I think the House of Lords should explore whether further definition is required.

From talking to academics over the last six months and more, I want to stress how incredibly fluid the areas of research they work in are. They go through wholesale change in areas of interest and exploration. That is the kind of innovative research we want, and it is one of the great things about our institutions. People talk about UK universities being the best in the world in different categories, but we genuinely do have a very strong reputation for higher education globally. It needs to be protected.

We support the amendment by the hon. Member for Congleton on the removal of those words. We will, of course, support the amendments standing in my name and that of my right hon. Friend the Member for Hayes and Harlington.

Fiona Bruce (Conservative, Congleton)

I will speak to my amendments 26 and 27 and, very briefly, to 60. I had hoped that the short but crucial amendment 27 might attract support from both sides of the Committee. Judging by some of the comments from Committee members today, not least the hon. Member for Kingston upon Hull West and Hessle, I continue to live in hope. I had hoped even the Minister might give a positive response to the amendment.

The hon. Member for Warwick and Leamington has already made the point that the Bill is intended to protect and promote academic freedom, but may in fact restrict it if academic freedom is defined as an academic’s freedom to express views only within their field of expertise. There are real problems with this phrase. We have heard some of them already, as my right hon. Friend the Member for South Holland and The Deepings has said.

To elaborate on some of the comments made, an initial difficulty is that of defining an academic’s field of expertise. Giving evidence, Dr Ahmed raised the very good example of Professor Richard Dawkins, who is an expert in evolutionary biology. Dr Ahmed said that one could argue that theology is not within his field of expertise, or even competence, yet his freedom to critique religion and contribute to the debate on God should not be denied to him merely due to an arguable lack of specific expertise.

John Hayes (Conservative, South Holland and The Deepings)

Or just because he is wrong.

Fiona Bruce (Conservative, Congleton)

My right hon. Friend may have his view, but I could not possibly comment.

Without another look at the words “field of expertise”, academics could find themselves with fewer free speech rights than those in other vocations, since straying outside of their perceived field of expertise might lead to more complaints, increased disciplinary action and dismissal—outcomes clearly at odds with the intention and purpose of the Bill.

A second difficulty is that an academic’s expertise often stretches over a variety of fields. A biologist could have an insight into economics, and a theologian may well have useful musings about sociology. The interaction between a variety of subjects is often how ideas are tested from fresh perspectives, leading to innovation and thought-provoking insights for the benefit of society as a whole. A requirement to stay within one’s field of expertise could have an unintended chilling effect, which I will elaborate on when I speak to amendment 28. Academics, particularly junior academics, might seek to modify their speech and academic inquiry in a bid to ensure that they qualify for protection under the law.

It cannot be right to penalise an academic simply because he opines on the issues of the day. The issues may be completely outside his field of expertise, and he may speak from a political perspective or with faith-based views, such as on marriage or being pro-life, but is not deliberating on issues of the day a key part of university life?

Charlotte Nichols (Labour, Warrington North)

I am interested in the examples that the hon. Member has raised as things that should be protected as part of academic freedom, but I would draw the distinction back between academic freedom and freedom of speech.

Just because someone is an academic, for example, does not mean that any topic that they choose to wax lyrical about should necessarily be protected, particularly if they are engaging in harmful stereotypes, discriminatory behaviour and so on. As much as I agree with the broad thrust of taking this out, I think that we need to reflect in the legislation a way in which we might draw that distinction between academic freedom and freedom of speech. Does the hon. Member not agree?

Fiona Bruce (Conservative, Congleton)

The objective of the Bill is to secure freedom of speech within the law. We are saying that, provided that someone speaks within the law—whether about their field of expertise or not—they should be covered by the Bill. They should have the freedom, as academics, to express views and not be penalised if those are unpopular, unfashionable or not mainstream. I hope the Minister will look at amendment 27 very seriously, above all those I have put down, and consider it in a positive light as the Bill progresses.

Amendment 28 is self-explanatory, setting out a number of factors that need to be covered and clarified in the definition of academic freedom. Not the least of those is the importance of academics being able to set the reading matter for subjects that they are teaching. I will set the amendment in context, underneath amendment 27.

A deeply concerning trend has emerged in our universities that has seen academics lose their jobs, students suspended from courses and refused affiliation with their unions, and visiting speakers refused a platform, due only to their expression of non-mainstream viewpoints. Some are not, in fact, non-mainstream. In his evidence, Matthew Goodwin, a professor of politics and international relations, told us he was an outlier when speaking of Brexit, with only 10% of academics sharing his support of it. However, Brexit was actually voted for by over 50% of those who voted in the referendum across our country.

We also heard of instances of academics being subject to vilification or discrimination for exercising their right to academic freedom and freedom of speech within the law. Although we did not hear of these instances in evidence, I will give two examples. In 2019, I raised in this House the well-publicised and worrying experience of respected academic John Finnis, an emeritus professor of law and legal philosophy who had taught at the University of Oxford for some 40 years at that point, yet students were calling for him to be removed from office simply for holding traditional Catholic views. Much more recently in the press, we had the case of David Palmer, a Catholic who was denied recognition by Nottingham University for the post of chaplain due to comments he made on social media expressing no more than the Church’s traditional views on euthanasia and abortion.

Professor Goodwin told us:

“This is how it typically works: a group of students will make a complaint about an academic. They may take that academic’s words out of context. They may imply that something was said that may not have been said—who knows? That academic is typically investigated and, as we saw in the case at Edinburgh recently, they are suspended and asked to leave campus for six weeks or so while the case is investigated. There is a reason why academics say that the punishment is the process. The reputation of that academic is now in tatters. Nobody will hire that academic. His or her chances of getting a research grant are probably minimal, and those of getting published have been severely damaged. That individual is tainted.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q197.]

Given that Professor Kaufmann told us how there can be over 100 applicants for any post in academia, that is a serious disadvantage that can be experienced and suffered. We were also told by more than one witness that self-censorship by academics is the most pervasive impact of all—the so-called “chilling effect”.

We heard about that from several witnesses during the course of evidence. The case of Dr Ahmed is particularly instructive. We heard how he struggled to get just 25 signatures of people willing to put their name publicly to a motion on whether to change the wording of a university’s policy. That goes directly to the reason why we need amendment 28. Once it was put to a vote by secret ballot, it passed by 80%. Some witnesses spoke of staff and students refraining from saying things they considered to be important or not pursuing lines of research they thought would be fruitful, because they feared adverse consequences, such as disciplinary action or another form of marginalisation or vilification.

Amendment 28 seeks to augment and clarify that academic freedom should include the freedom to express opinions about a university, including its curricula, governance, affiliations, teaching and research, without the risk of being adversely affected. Amendment 60 seeks to ensure that students do not suffer any impact on their educational process, such as being marked down. We have already had a good debate on amendment 59, with which amendment 60 is linked, so I will leave that with no further comment, save the hope that the Minister will reflect on amendment 60 with amendment 59.

John McDonnell (Labour, Hayes and Harlington)

I want to repeat my declaration of interest as an honorary fellow of Birkbeck, University of London, which is the same as the hon. Member for Ruislip, Northwood and Pinner. I failed to declare that my wife is an educational psychologist and is now a part-time tutor at the Institute of Education at University College London. I just want to make sure that our register of interests is full. I cannot think of any other family who are involved, but at least I will get that on the record.

Before considering the amendments, I want to reflect on the fact that we have come a long way since section 28 in the 1980s. We are no longer tolerating any Government interference in matters—for example, at that stage, in just talking in an educational setting about LGBT rights. It is interesting and gratifying that we have come this far.

Charlotte Nichols (Labour, Warrington North)

The Minister may find herself promoted and able to follow through on the assurance she has given today, so perhaps the vote is the right way to make sure that we sort that out.

John McDonnell (Labour, Hayes and Harlington)

Given the way that heads are toppling at the moment, anything could happen. The guillotine is out there, certainly.

I now come to amendments 45, 46 and 48 in the name of my hon. Friend the Member for Warwick and Leamington, to which I also put my name. I want to be completely honest about this: those amendments have come from discussions that we have had with individual academics and trade unions. Those matters also came up in the evidence sessions. One issue that came up time and again is employment protection for academics. Their biggest anxiety is not just their ability to exercise freedom of speech and academic freedom but retaining their jobs, having access to appropriate promotion and so on.

Michelle Donelan (Conservative, Chippenham)

Amendments 80, 28, 45, 46 and 49 seek to set out the type of speech that the definition of academic freedom in clause 1 covers, and to ensure it includes the right of academic staff to express opinions about the curricula, governance, affiliation and the teaching and research at their provider, to design and deliver their teaching and do innovative research. Amendment 28 would also remove the limitation in the current provision that it covers only law speech that is within the person’s field of expertise, and makes other changes that I will discuss shortly.

As currently drafted, the definition of academic freedom includes the freedom to put forward new ideas and controversial or unpopular opinions. To be clear, that includes the right of academic staff to put forward opinions about any issue, including the curricula, governance, affiliation and teaching and research of their provider. It would also include the right to put forward research proposals that some might see as controversial or to pursue a range of methods when designing and delivering high-quality course material. There is therefore no need to specify in the Bill the type of opinions and speech that are covered, since all opinions and speech are covered as long as they are within the law and one’s academic field of expertise—a point I will return to in a minute. Of course, I shall consider once again the comments made in the debate.

Amendment 28 would make other changes to the definition of academic freedom. The first is the requirement that academic freedom means freedom within the law, which is a vital qualification in the Bill. Let me be clear once again that the Bill does not cover unlawful speech. The amendment would remove the qualification, but I do not see why the lawfulness of speech should not apply to academic staff as it does to anyone else on campus. Amendment 28, as well as amendment 80, would also remove the requirement that the protected speech should be within an academic’s field of expertise.

I commit to the Committee that I will take the topic away. We have heard a very compelling case from both Opposition Members and Government Members today. I want to outline why the provision is in the Bill, but I commit to taking the topic away.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Does the Minister commit to taking away the topic relating to amendment 28? Or was it amendment 27?

Michelle Donelan (Conservative, Chippenham)

Sorry; I commit to taking away the topic of field of expertise, which is covered in amendment 28, as well as amendment 80.

I will outline the reason why the topic is in the Bill in the first place. Academic staff will have extra protection under the Bill, in addition to the more general protection for freedom of speech. That is the reason that the additional protection only covers speech where an individual has expertise. For example, a maths professor should not have greater protection than a non-academic colleague or a student when they are speaking about matters unrelated to their role as an academic, but in that case the professor would still benefit from the same freedom of speech protections.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I understand exactly what the Minister is trying to say, although there is some advanced maths that could move into philosophy and so on, depending on how deep we want to go. It is about the word “expertise”. That is why I put forward the idea of academic “interest”, which is a much lower bar and means that someone just needs to demonstrate that they have had an academic interest or research in that area. Would she go away and think about the bar that the word “expertise” sets—who proves that expertise?—compared with other qualifications that might fulfil the Minister’s purpose, but give people the right to explain a broad range of academic interests?

Michelle Donelan (Conservative, Chippenham)

I thank the hon. Member for that helpful point. I commit to taking away that very topic.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I take the commitment, but it does not have a lot of detail. A commitment to do what? A commitment to rewrite those five words? A commitment to reassess whether those five words need to be in there or not? I would like a little more detail on what the Minister is committing to.

Michelle Donelan (Conservative, Chippenham)

I and the Government commit to taking the topic away, listening to Members from across the Committee today and their very valid points and concerns on the topic, and to look at the topic again.

On the rationale behind the topic, the Government intend the definition to be interpreted broadly, so that a maths professor who uses their mathematical or statistical skills to analyse a non-mathematical subject would be covered, for example—that references the point made by the hon. Member for Brighton, Kemptown. It would also cover situations where an academic discusses teaching generally or the governance of their department—all that is within their area of work and subject expertise.

The wording reflects Strasbourg case law, where it has been held that academic freedom is not restricted to academic or scientific research, but also extends to an academic’s freedom to freely express their opinions in the area of their research, professional expertise and competence. Our courts must take this judgment into account when considering the question of what academic freedom is.

Further on amendment 28, I will move on to the inclusion of the wording that seeks to clarify that academics should enjoy academic freedom without “unlawful interference”. That is unnecessary, because any such interference with academic freedom will by definition be unlawful, which does not need to be stated in the Bill.

Finally, amendment 28 adds “without being adversely affected” to the definition. Being placed “at risk” of adverse effect is already covered by the Bill. It would be sufficient for an academic to show that they were at risk of adverse effect. It would not be necessary to go further and show that there had actually been adverse effect. Even a threat to damage an academic’s career, for example, could be sufficient. Therefore that aspect of the amendment is not required, as the current drafting is actually wider.

Amendments 27, 57 and 58 all seek to broaden the definition by removing the requirement for speech to fall within an academic’s field of expertise—once again, we shall cover this topic. Clause 1 provides that higher education providers must take reasonably practicable steps to secure freedom of speech for their staff and members. This includes securing the academic freedom of academic staff. As I have already said, this means that academic staff will have particular extra protection, in addition to the more general protection that the Bill offers for freedom of speech. This will allow academics to bring complaints to the Office for Students or a tort claim before the courts, which will reflect the high level of importance that the courts have consistently placed on academic freedom. I have outlined our rationale behind the “field of expertise” requirement and that it should be interpreted broadly, but as I have already stated to the Committee, I will take away and consider the issues raised regarding this topic.

John McDonnell (Labour, Hayes and Harlington)

I hate to raise this subject, but it was suggested that someone in any field of academic expertise would somehow be denied the ability to talk about or comment on Brexit. Can we just clarify that?

Michelle Donelan (Conservative, Chippenham)

This particular element of the Bill does not deny people the ability to speak on anything, because as I have already stated, academic freedom is a subset of the broader term “freedom of speech”, so they would be covered by that as well.

Matt Western (Labour, Warwick and Leamington)

I heard the Minister’s point about committing to go away and discuss this issue and so on. Things are clearly moving quite fast in the reshuffle. I would like to think that she will still be in her post and perhaps will not have been promoted—perhaps she wishes to be promoted—but the essence of this is so important that I think it goes beyond the words of this Minister because in two weeks’ time we could have a very different person actually handling this particular issue.

Michelle Donelan (Conservative, Chippenham)

I can see what the Opposition are cleverly trying to do here to push me to go further than my words, but I am sure that the hon. Member will understand that the words that I am using today will be on the record in Hansard for ever more and for any future Ministers in my position or, indeed, me to revisit in a few weeks’ time.

Amendments 60 and 68 seek to extend the concept of academic freedom to students as well as academic staff. There are long-standing reasons why academic freedom for academic staff is considered so important and particularly worthy of protection under article 10 of the European convention on human rights. Academic freedom for academic staff is a long-standing concept that is already used in legislation—including the Higher Education and Research Act 2017—and is understood in the sector. It has also been considered in an international context. An example is the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. As is clear from that recommendation’s title, academic freedom concerns teaching personnel, not students. Strasbourg case law also confirms that, in determining whether speech has an “academic element”, it is necessary to establish whether the speaker can be considered an academic.

Accordingly, the academic freedom provisions in this Bill are relevant only to those who are academic staff. That will include those who are employees of the provider, but also those staff who do not have employee status. That could include staff who undertake teaching or research as part of an honorary appointment for which they are not paid. Similarly, it will mean that PhD students who teach undergraduates at the provider can be considered to be academic staff for that purpose. However, as I have committed to this morning, I will consider this topic once again.

A first-year undergraduate student would not be considered to have the particular protection afforded by academic freedom. But I reiterate that all those on campus, whether a student, a member of staff, members of the provider or visiting speakers, are nevertheless covered by the freedom of speech duties placed on providers. That is made very clear in the Bill. I hope that Committee members will be reassured by what I have said and understand the rationale behind maintaining that the additional layer of protection for academic freedom should be reserved for academic staff, but I will, as I said, consider this.

Amendments 47 and 48 relate to the definition of academic freedom, making specific provision regarding opportunities to move to another job or another university and career development. As regards amendment 47, proposed new section A1(8) and (9) of the 2017 Act, in clause 1 of this Bill, already set out a new duty on higher education providers to protect external applicants for academic posts. An external applicant must not be adversely affected because they have previously exercised their academic freedom

to question and test wisdom, or put forward new ideas or controversial or unpopular opinions. It must not be the case that an individual’s career journey grinds to a halt because they are seeking new opportunities at another university. Academic freedom is not enough if a person only has it within their own institution.

Equally, as regards amendment 48, proposed new section A1(7)(b) to the Higher Education and Research Act 2017 already sets out a new provision that academic freedom covers not only the risk of losing one’s job or privileges—as is currently the case under that Act— but the risk of not securing promotion or another job within one’s university. Again, academic freedom is not enough if it only prevents a person from losing their job, and does not allow them to progress their career.

John McDonnell (Labour, Hayes and Harlington)

I apologise to the Minister for interfering again. I want to be absolutely clear about these amendments, though, because at the moment, I am not. She has dealt with amendment 45; could she make it absolutely clear that, even if she will not accept the amendment to include “innovative research” on the face of the Bill, the Bill does encompass protections for innovative research?

With regard to amendment 46, the Minister has made no reference to the protections against Government interference in academic work. Again, it would be helpful to get assurance about that, and if we cannot get that assurance I would urge my hon. Friends to press amendment 49 to a vote, which is about protections enabling members of staff, academics and others to criticise their own institution.

Michelle Donelan (Conservative, Chippenham)

Academic freedom would indeed cover academics’ own research; the research of students would be covered by the broader freedom of speech. If it were the Government interfering with an academic’s freedom of teaching or research, that would be covered in just the same way as if it were the institution interfering. I hope that reassures the right hon. Member.

I understand the concerns that have been raised today, and I assure Members that it is not our intention to unnecessarily limit the right of academic freedom. I therefore will, as I have already stated, commit to exploring this issue, particularly as regards the field of expertise.

John Hayes (Conservative, South Holland and The Deepings)

I have heard what the Minister has said. I am not entirely satisfied, although I appreciate her point about taking this issue away and looking at it again. There is a debate to be had about how explicit legislation should be, and there is a case to be made—and the Minister has made it well—that much of what we are asking for is implicit: that freedom of speech is a sufficiently broad term to allow those who will have the power to oversee these matters, particularly the new regulator, to take into account many of the points that have been made by Members of this Committee. However, I am inclined to the view that we do need to be more explicit in respect of academic freedom, and I am mindful of what the witnesses have told us and Members from both sides of the Chamber have reinforced: that, if there is indeed a climate of fear and a culture of silence given expression by self-censorship, as we heard from Professor Goodwin, Dr Ahmed and others, we need to be crystal clear about the protections that the Bill will afford.

Nevertheless, mindful of the integrity of the Minister and her assurances, I hope she will look at this issue again, and on that basis I am happy to withdraw the amendment that stands in my name in order to facilitate our progress. In doing so, let me just say that I also welcome her assurance about the amendment in the name of my hon. Friend the Member for Congleton in respect of fields of expertise. I do think that “areas of interest”, or some such similar phrase, might be more appropriate, and would deal with some of the points that have been raised by Members. Furthermore—the right hon. Member for Hayes and Harlington knows I have form on this subject—I am very happy to support his remarks about the need to protect employees’ interests from employers. My views on that are just as deeply held as his, as he knows from previous exchanges that we have enjoyed. It is important to take that away and think of it afresh, as the Minister has suggested she will. On that basis, I beg to ask leave to withdraw the amendment.

Charlotte Nichols (Labour, Warrington North)

I beg to move amendment 32, in clause 1, page 2, line 20, at end insert—

“(7A) The objective under subsection (2) does not apply to any person or body that—

(a) has made any statement in public that amounts to the denial of genocide; or

(b) intends to make any statement that amounts to the denial of genocide within the premises of the provider or to any students of the provider.”

This amendment ensures that the objective of securing freedom of speech within the law does not cover those who make statements that amount to a denial of genocide.

Judith Cummins (Labour, Bradford South)

With this it will be convenient to discuss the following:

Amendment 69, in clause 1, page 2, line 36, at end insert—

““denial of genocide” means the malicious condoning, denying or trivialising of an act of genocide;

“genocide” has the meaning set out in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.”

This amendment defines genocide denial against Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide Amendment 54.

Amendment 33, in clause 1, page 3, line 28, at end insert—

“(2) For the purposes of this section, “freedom of speech” and “academic freedom” do not extend to any statement that amounts to the denial of genocide.”

This amendment ensures that the objective of securing freedom of speech and academic freedom do not cover those who make statements that amount to a denial of genocide.

Amendment 34, in clause 2, page 4, line 13, at end insert—

“(4B) The objective under subsection (2) does not apply to any person or body that—

(a) has made any statement in public that amounts to the denial of genocide; or

(b) intends to make any statement that amounts to the denial of genocide within the premises of the students’ union or to any members of the students’ union.”

This amendment ensures that the duty on students’ unions to secure freedom of speech within the law does not cover those who make statements that amount to a denial of genocide.

Charlotte Nichols (Labour, Warrington North)

It is an honour to serve under your chairmanship, Mrs Cummins. The amendment would make it clear and explicit in the Bill that the legal protections afforded to academics for their freedom of speech would not cover denial of the holocaust or other genocides recognised by the UK Government, namely the subsequent genocides in Rwanda, Darfur, Cambodia and Bosnia.

As I have previously explained, I feel that my concern is justified by the Minister’s comments on the radio about how holocaust denial constitutes lawful free speech, however objectionable everyone in this room would find it. There was a swift back-pedalling on that, with the newly sacked right hon. Member for South Staffordshire (Gavin Williamson) saying in the Chamber that freedom of speech would not protect holocaust deniers. However, I am not sure that assurances will be enough, and that is why it needs to be explicit.

One of the witnesses who came before the Committee, Professor Goodwin, stated that he would invite a speaker to address his students

“from the British National party or the National Front”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q187.]

Mr Griffin has a degree from the University of Cambridge, so he could potentially argue that he would be covered by academic freedom when promoting his views. Clearly, this is not an extreme hypothetical; this is someone who has been invited to address a number of universities, including my own, the University of Liverpool. He has also addressed the Cambridge Union society, taking part in a panel debate with Abu Hamza. When we consider the academic rigour of courses and the benefit of what students are being taught, I am not sure that any of us could argue that there was academic rigour in a debate between an Islamic fundamentalist and an out-and-out renowned Nazi. Mr Griffin has engaged in holocaust denial on a number of occasions, including at the trial for his 1998 public order offence, where he said:

“I am well aware that the orthodox opinion is that six million Jews were gassed and cremated and turned into lampshades. Orthodox opinion also once held that the world is flat.”

Over the course of our debates on the Bill, we have heard a lot about the need to challenge certain orthodoxies: that such debate is healthy in an academic setting and improves academic rigour, allows students to develop their critical thinking and debating skills, and so on. However, there must be a limit. Professor Goodwin made it clear that, if the Bill were enacted, he could invite someone such as Nick Griffin on to his campus. That is why it needs to be explicit in the Bill that, if he were to do so and his university provider tried to cancel the event, that is not something for which Mr Griffin would be able to seek damages against the university.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

My hon. Friend is making an absolutely excellent speech. To pre-empt what the Minister will say—“Well, everything is allowed unless it’s unlawful”—I refer back to the evidence given to us by Sunder Katwala, who said:

“Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 101, Q209.]

So having a definition of allowing speech unless it is unlawful is not enough to stop holocaust denialists coming and speaking at universities.

Charlotte Nichols (Labour, Warrington North)

I thank my hon. Friend for that really important contribution. As we have heard from a number of witnesses, holocaust denial—as I said, I am sure that everyone present finds it objectionable—is, in fact, lawful free speech that could be protected under the regulations currently in the Bill, unless we ensure that the limitations of free speech and academic freedom are spelled out explicitly on the face of the Bill.

As we have talked about a lot over the past couple of days, it is really important that speakers, academics and students have academic freedom. Clearly, other pieces of legislation that are in place—not least libel law, the limits that are set out in the Prevent duties that universities have to abide by, and the limits set out in the Equality Act 2010—must be read alongside the Bill, but none of those is sufficient to prevent holocaust denial. I am particularly keen to expand the definition of holocaust denial to genocide denial. Just as we not only commemorate the Nazi holocaust of Jews, disabled people, Roma and Sinti, LGBT people, trade unionists and other minority groups within Europe on Holocaust Memorial Day every year, we also commemorate the subsequent genocides in Rwanda, Darfur, Cambodia and Bosnia.

We have spoken about universities trying to appeal not only to a market within the UK, but to a global market. If there are no limitations on free speech, what message would it send to students from places such as Rwanda, Darfur, Cambodia and Bosnia? What would it say to students from Germany, where they have much more robust laws in place to ensure that holocaust denial and denial of other genocides—which is of course a disgusting desecration of all those who lost their lives and who suffered in those genocides—is not perpetuated within higher education institutions? The duty of care that institutions have towards their students is incredibly important, and it is something that we need to ensure is not lost as a result of the unforeseen consequences of passing a Bill that does not have the limitations that I have set out in amendment 32. The following amendments, which are in the name of my hon. Friend the Member for Warwick and Leamington, clarify some of the technical points throughout the Bill to ensure that amendment 32 can stand.

I think that any right-minded person would want to ensure that protections are in place. It is something in which there is a clear public interest, because it is objectionable that universities might have to spend money to fight legal cases against genocide deniers who demand a right to a platform on their campuses. There is also a really important public order point, because when people from the far right are invited to speak on university campuses, there is often, naturally, a reaction from the student body, who protest their presence. Nick Griffin turning up on various campuses over the years has meant skirmishes. Sometimes, such people bring along heavies with them, who will cause problems, start fights with students and make students on that campus fundamentally less safe while they are there. Of course, they are there to radicalise people and bring them round to their far-right cause. They are there to recruit, so the idea that it is an academic exercise is for the birds—these are people coming on to campuses to radicalise young people.

We expect a vote shortly and we want to discuss a lot of other things, but I want to ensure that the amendment is given proper consideration and that those safeguards are put in the Bill to make sure that the well-meaning, I am sure, assurances of the Government do not turn out to be meaningless in effect.

Matt Western (Labour, Warwick and Leamington)

Briefly, I thank my hon. Friend for her clear and considered speech in support of the amendments, some of which are in my name, given that we were not entirely sure how they would fall over the four days of the Committee.

In the evidence sessions and on Second Reading, we heard just how concerned people are. My hon. Friend the Member for Kingston upon Hull West and Hessle mentioned the evidence given by Sunder Katwala, but I am think too of the moving comments by my hon. Friend the Member for Leeds North West (Alex Sobel) about his experience at Leeds University and the prospect of having the likes of David Irving or Nick Griffin coming on to campus to speak. I will also just pick up on the point made by Professor Whittle:

“If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 39, Q73.]

The amendment seeks to draw a line under the question, what constitutes reprehensible but lawful speech that is inimical to academic freedom? I cannot see any academic benefit to denying any genocide, and it would do great harm to an academic were such views espoused on campus, as well as to the wider academy, let alone damaging student welfare.

Michelle Donelan (Conservative, Chippenham)

Amendments 32 to 34 and 69, taken together, seek to exempt providers and student unions from the duty to secure freedom of speech of persons who speak or intend to speak to deny genocide. The Government, however, are clear that genocide denial, including denial of the holocaust, is abhorrent and morally reprehensible. The new director will produce extensive guidance to assist universities, further to the points made by hon. Members. That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights. As such speech is intolerable in a democratic society, and that holocaust denial, even if dressed up as impartial historical research, must be seen—

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

I refer the Minister to the evidence given by Sunder Katwala:

“Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 102, Q209.]

He complimented—if that is the right word—the Government on trying to get universities to adopt the International Holocaust Remembrance Alliance definition; likewise, we support that. However, that is still a “lawful position”. What this amendment would do is to make that, even though it is within the law to hold those opinions, we do not want them in our universities.

Michelle Donelan (Conservative, Chippenham)

If the hon. Member will forgive me, I will carry on and respond to her point regarding the balancing act that universities will perform.

Holocaust deniers often have clear links with neo-Nazi extremism, and with antisemitic violence and intimidation. As I said on the Floor of the House, the Government are clear that there is no place in our universities for an extremist view that is a complete work of fiction and one that grotesquely seeks to misrepresent our global history.

Let me once again be clear that nothing in the Bill encourages providers or student unions to invite speakers who have denied or deny genocide. The Bill will not give anyone the right to a platform, and on that I am categorical.

Charlotte Nichols (Labour, Warrington North)

As we have heard about the broad range of individuals and organisations covered by the Bill, any student society that sought to invite a holocaust denier or genocide denier on to campus could technically have protection under the Bill as drafted. For example, if a free speech society wishes to test the absolute limits of what its university would tolerate regarding free speech and decided, as the Oxford Union did, to invite Abu Hamza and Nick Griffin along, I think it would be irresponsible of the university to allow such events to go ahead. There is nothing to say that the university has to invite them, but clearly there is nothing to say that a society or the students union could not invite them, or what would that mean for the university if it chose to intervene accordingly.

Michelle Donelan (Conservative, Chippenham)

Two points are being made. One is about the right to a platform, whereby an individual can, in essence, demand to speak at a university. In no way does the Bill give anyone the right to a platform.

The second point that the hon. Member is referring to is if an individual is invited by a society, a union or a university itself. With regard to that, freedom of speech is not an absolute right; it does not include the right to harass others, or incite people to violence or terrorism. The Bill requires reasonably practicable steps to be taken to secure freedom of speech within the law. That is the crucial point. The Bill is not about unlawful speech.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

But the Bill does require student unions to allow students to set up societies regardless of their viewpoints; such societies must be able to be registered and cannot be denied. There could be a group of three students—three deluded, holocaust-denying students—and the student union would not be able to deny them an affiliation, according to the Bill, and they would be given a right to speak in the student union. I am just trying to be clear, especially because of the tort element. That is the particular problem here, because that is not in regard to the Office for Students; it is separate to the courts. If there is not a protection here in the Bill, can the Minister give assurances that no group of three students can take a student union to court for tort, for being denied a room to preach genocide denial?

Michelle Donelan (Conservative, Chippenham)

The hon. Member is absolutely incorrect, because universities and student unions will only have to take reasonably practicable steps to ensure that freedom of speech exists. University student unions or other bodies will also have to balance that with the Equality Act, with the public sector equality duty and with the Prevent duty, and also criminal law may apply. This is about balancing competing duties, not about giving primacy to freedom of speech, which was in fact the aim of the Opposition amendment.

Judith Cummins (Labour, Bradford South)

I invite Members who have not already done so in this session to declare their interests for the record.

John Hayes (Conservative, South Holland and The Deepings)

I draw the attention of the Committee and others to my entry in the Register of Members’ Interests, which cites my professional connection to the University of Bolton, where I am a professor.

John McDonnell (Labour, Hayes and Harlington)

I register my interest as an honorary fellow of Birkbeck College, and my wife is a tutor at University College London.

David Simmonds (Conservative, Ruislip, Northwood and Pinner)

Similarly, I am an honorary fellow of Birkbeck.

Lloyd Russell-Moyle (Labour/Co-operative, Brighton, Kemptown)

I have a professional connection with the University of Sussex and the University and College Union, and I am a trustee of the University of Bradford union.

Matt Western (Labour, Warwick and Leamington)

I wish to register that my wife works at a particular higher education provider.

Emma Hardy (Labour, Kingston upon Hull West and Hessle)

Again, my partner works at the University of Hull’s degree apprenticeship course.

Written evidence reported to the House