Amendments made: 5, in clause 4, page 6, line 2, after “providers” insert “and their constituent institutions”.

This amendment and the Minister’s other amendments to clause 4 make clear that the OfS’s new functions relating to freedom of speech extend to constituent institutions of registered higher education providers.

Amendment 6, in clause 4, page 6, line 3, after “providers” insert “and their constituent institutions”.

See explanatory statement to Amendment 5.

Amendment 7, in clause 4, page 6, line 8, after “providers” insert “and their constituent institutions”.—(Michelle Donelan.)

See explanatory statement to Amendment 5.

I beg to move amendment 73, in clause 4, page 6, line 8, at end insert—

‘(2A) The OfS will compile an annual review of registered higher education providers, ranking their compliance with their duties under sections A1 to A3; to be made publicly available by such means as the OfS considers appropriate.”

In moving the amendment, I draw attention to my entry in the Register of Members’ Financial Interests, which details my role as an academic at Bolton University.

I was speaking at the weekend at a dinner with a group of friends who are academics. We addressed in conversation how we could ensure that universities will comply with the terms of the Bill, should it become an Act, as I expect it to do. I talked about the amendment we debated earlier––I will not seek to do so again, Mrs Cummins, because you would not let me––in which I recommended a periodical report. I suggested quarterly, but I am open-minded about what that period might be and its precise terms.

There is an alternative that I now suggest in the form of an amendment to this clause, which is for the OfS and, in particular, the new director, to provide information annually about compliance with the duties in new sections A1 to A3 and to make that publicly available. It would be less onerous, so it would pass the test that the Minister set of not being excessively bureaucratic, which was the argument that she used—in my view rather surprisingly—in resisting my first amendment, although she said that she would give it further consideration, for which I am grateful. It would certainly pass that test, but also give reassurance that universities will be expected to respond, and respond consistently.

My doubt about the legislation is not about its principles––I agree with them entirely. It is not about the practice, which I expect to be effective. It is more about the universities and how they respond. I suspect that, if we are not careful, it will be a variable response. Some will feel that they can comply with these duties more straightforwardly than others and some may even be reticent to do so. I am very keen to avoid creating what might be described as a littered landscape of all kinds of universities acting in all kinds of different ways.

I recognise the point that the right hon. Gentleman is making about how when a list is compiled, it can be influential on students choosing a university. They often look at rankings. My concern about the amendment is with the resource implication. I have mentioned before about higher education provided by FE. How much resource would student unions have to comply with this duty by putting on these kinds of events? Could smaller universities or colleges be downgraded in the ranking he referred to because they do not have the resources to offer the greater breadth that, for example, Oxford or Cambridge would be able to offer?

It was at Cambridge that I had the discussion with the academics that I mentioned, by the way. I am involved with some postgraduate work there, which is not registered in the Register of Members’ Financial Interests because it provides no financial reward, so it is not a pecuniary interest, but I mention it in passing for the benefit of the Committee and others.

The hon. Lady is right that there is a challenge in respect of smaller providers, and I accept that. A good point was made in the earlier part of our consideration about FE colleges and about thresholds. There does seem to me to be an argument around thresholds. I would hope that that would become clear in the guidance. The hon. Member for Warwick and Leamington made a good point about that. Good practice will necessitate the new director establishing some protocols that do not allow the free for all that he suggested might be the consequence of not being clear about the sort of things that would stimulate his interest and lead to further steps. To be honest, I think that the good practice detailed in the Bill would include the director making clear his expectations of universities. The Minister will no doubt confirm this when she speaks, but I find it inconceivable that the director will not set those expectations out in guidance. He is missioned, after all, to provide advice, and it is inconceivable that that advice will not include some mention of the kind of circumstances in which universities might want to draw matters to his attention.

There is an argument to go further and to say that, if universities are going to take any steps which they think might inhibit free speech, they should, before doing so, report to the director. That might also be included in guidance. If there were an issue about the curriculum, where a course was in the eyes of some people contentious and there were changes to practice which were unconventional—all things that we have debated previously in our scrutiny—there is an argument that that ought to stimulate some report to the director. That is not what I am suggesting here. You will recognise that, Mrs Cummins, and call me to order if I carry on talking about it too much.

What I am proposing is very straightforward: simply, that there is an annual review of registers of higher education providers and that they are publicly ranked. This is not uncommon for universities; indeed, they are well used to that approach. Student satisfaction, for example, is gauged and universities are ranked accordingly. Over time, we have become more accustomed to universities being required—helpfully, I think—to be very open about what they are doing and how well they are doing it. It helps students to make informed choices and it helps others to assess the success and effectiveness of the regime in different places of higher and further education.

The Minister might find this amendment altogether more agreeable. Last time, I said that I anticipated her seizing on my amendment with enthusiasm and, frankly, I was a little disappointed that she did not. The response was rather less fulsome than perhaps I had hoped. This is a more modest suggestion; it is in line with her concerns about bureaucracy and in keeping with the idea of the existing practice of the OfS, but it would provide more structure and the prospect of greater consistency. I am hoping that both the shadow Minister and the Minister will recognise the amendment as a helpful addition to the Bill, entirely in the spirit of its purpose, but one seeking to improve it in terms of compliance and consistency. On that basis and awaiting that enthusiastic response, I will leave it there and reserve the right to speak again and decide whether to press my amendment.

I wish to grab the amendment with some enthusiasm, but maybe in the wrong direction from what the right hon. Gentleman is hoping for. I do worry about bureaucracy, particularly among smaller institutions, and the general cost and responsibility and burden that falls with it. As I said the other day, I believe that the demands that the Government are looking to place on institutions through this legislation is just another example of the head office wanting yet more reports from various institutions. It will be another form to fill in, and the Government will do what they want with it—maybe just sit on it, like so many reports.

I struggle with the amendment, because I think it misjudges the benefit of bureaucracy. As the right hon. Gentleman knows, we have tabled amendments on looking for best practice. We want to understand what is good out there, as well as examples of events being cancelled unduly. That is of interest to all across the sector, it is right and it is proportionate, but ranking universities according to their obligations under the Bill would be impractical and undesirable. I will expand on those two points in just a moment.

I understand what the right hon. Member for South Holland and The Deepings is trying to do. Would it help him to know that there were consultations on the national student survey—the annual review of student satisfaction—and that one of the questions looked at related to free speech? Might that satisfy his aim, without having a negative impact on smaller providers, which will end up further down the rankings because they lack the resources to put on the events that wealthier institutions can?

I thank my hon. Friend for that suggestion.

What the amendment proposes is impractical. In evidence, we heard about the undefinable nature of the chilling effect. One of the Bill’s stated aims is to erode that effect, but how can the OfS be expected to rank universities on how they do that? As my right hon. Friend the Member for North Durham put it:

“Getting your head around the idea of self-censorship is like having blancmange in your hands.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 95, Q194.]

How is it substantive? How is it made quantifiable and therefore a true measure?

On that point, I want to get to the bottom of this issue of good practice. As the hon. Gentleman knows, clause 4 already states:

“The OfS may…identify good practice relating to the promotion of freedom of speech and academic freedom”.

As well as giving advice—dealt with in the next paragraph—the identification of good practice will end up ranking universities, because where good practice is identified it will be clear, and where it is absent it will be equally clear.

I thank the right hon. Gentleman for that point of clarification, but even where good practice is identified, that is a qualitative judgment being made, in this case, by an individual or perhaps a small team of people; and while that is accepted and understood, and most people recognise good practice when they see or hear it, how it is quantified into some measure is a concern. Is it a matter of giving five points for this and three points for that? How is a genuinely substantive and transparent ranking system that people can understand to be arrived at? I understand the right hon. Gentleman’s intention, but I believe there are better ways of under-standing where there is good or bad practice. One of the witnesses, Sunder Katwala, said:

“self-censorship and chilling effects are cultural points”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 103, Q214.]

When you need to do some quantitative analysis, how do you quantify what is essentially a cultural phenomenon?

The point made by the chief executive of the OfS was that

“Regulatory burden is not necessarily a bad thing,” unless “it is disproportionate.” She added:

“The way through this is to ensure that our response is proportionate and risk-based”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 113, Q245.]

I would say that what is coming from the OfS is some direction. They might want some sort of reporting, but it has to be proportionate to identifying risk, rather than some sort of beauty parade showing how different universities are performing.

In their impact assessment, the Government claimed that non-legislative work, including the OfS-led review and guidance is not sufficient to solve the problems identified. Non-legislative proposals would not have the desired effect because they are based on a voluntary approach. The amendment is fundamentally illiberal, putting the OfS in the position of an ombudsman that sits above the sector. Dr Greg Walker, the former chief executive officer of MillionPlus, was concerned about the OfS becoming an arbiter. He described it as being much like the British Board of Film Classification. How would that work? The Association of Colleges reminded me in our meeting that the OfS is provider-blind. How, then, can it be expected to rank institutions? The former Secretary of State, Gavin Williamson, said on Second Reading:

“The OFS will also play an important role in identifying best practice and providing advice in relation to the promotion of these rights.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]

Why have not the Government put that in place more, rather than potentially wasting thousands of pounds on implementing this legislation?

The amendment goes beyond identifying best practice and advice and into intrusive review and value-based judgments on a university’s attempts to navigate freedom of speech issues.

The hon. Gentleman is being generous in giving way. What he describes is not uncommon when we look at universities. We heard earlier that student satisfaction is measured. Student satisfaction is, by its nature, a subjective judgment: students gauging their view of their university—the teaching, care and stewardship. Of course those judgments are subjective, but they are none the less valuable.

I understand that. My understanding of that student survey is that they complete it and assign a score, on different categories and measures, to how the university has met their expectations, to try to quantify that experience. It covers teaching, accommodation and how the curriculum has been delivered compared with their expectations. That is a positive thing.

The Opposition do not believe that there is a need for ranking. It is a qualitative measure and I think it is a stick to beat and bully those the Government may not like. I have real fears about the Bill. Increasingly, I sense that it is the work of the McCarthyite tendency, and the amendment would simply aid them in their subjective assault on the sector.

It is a pleasure to serve under your chairmanship, Ms Cummins. I say to the right hon. Member for South Holland and The Deepings that God loves a tryer. He has come back with another amendment to try to quantify the need for the Bill. As I said last week, I feel uncomfortable with the Bill’s intervention in areas where it should not go.

I look back, possibly with rose-tinted spectacles, to the halcyon days when Conservatives argued for smaller states, less intervention and less red tape. The Bill—and the right hon. Gentleman’s amendment—puts more red tape and bureaucracy on institutions. We have just had a discussion on tort. I look back fondly to great Conservative speeches that argued for less regulation and how we should keep lawyers out of things wherever possible. Today we have a Government who argue for giving a freedom charter to lawyers, which I have never been in favour of.

There is a—perhaps inadvertently—useful part to the amendment: it might produce the evidence for the need for the Bill in the first place. One of the problems with the Bill is that we have seen very little evidence, in terms of figures, for why it is required. If the amendment is an attempt to provide that, it seems to put the cart before the horse. One problem, as my hon. Friend the Member for Warwick and Leamington said, is how we quantify this, because these will be value judgments that vary from year to year for institutions. Let us be honest: the institutions themselves will have no control over them at all, because student unions and other organisations will invite speakers and get challenged, which will be problematic.

I understand what the right hon. Member for South Holland and The Deepings is trying to do in terms of justifying the existence of the Bill, but I am not sure that the amendment will do that. I also, like my hon. Friend the Member for Warwick and Leamington, do not understand how we would do the ranking and how we would quantify it. What we found throughout the evidence sessions is that, although we have such things as the Chicago principles in terms of freedom of speech, it becomes a very subjective test. Trying to rank universities simplistically like this would be very difficult.

Also, if we agree that limitless legal actions could be taken against universities and institutions, lumbering them with financial burdens, we will put more burdens on them if they have to quantity these things every year to the Government. I think that would be unwelcome to our university sector. The sector is telling us that it has gone through a very difficult time during covid and that it needs more money. I do not think that any of us would not argue for more money for the education sector, but we are giving them additional burdens.

I come back to the point made by my hon. Friend the Member for Brighton, Kemptown: these institutions are not one size fits all. There are some very small organisations that will find having to do this every year burdensome. I accept that the right hon. Member for South Holland and The Deepings has moved from where he was last week in terms of wanting it on a more regular basis, but there will be huge burdens. It would be unfortunate to tie up academic time and money in compiling lists that I am not sure will be the top thing that students will look at when they decide which academic institution to go to.

As discussed, the amendment seeks to introduce a requirement on the Office for Students to publish an annual report that would assess and rank higher education providers on their compliance with their freedom of speech duties. Schedule 1 to the Higher Education and Research Act 2017 sets out existing reporting requirements placed on the OfS. Paragraph 13 of that schedule requires it to prepare a report on the performance of its functions during each financial year. That annual report already summarises the regulatory activity of the OfS as undertaken in that year. Following the Bill, that report will be able to include the regulatory work that the OfS has undertaken in relation to the new registration condition on freedom of speech and academic freedom, as well as information on the operation of the new complaints scheme.

In that context, proposed new section 69A in clause 4(2) of the Bill also provides that the Secretary of State may, by direction, require the OfS to report on specific freedom of speech and academic freedom matters in its annual report, or in a special report. Both those reports must be laid before Parliament, so they will be subject to scrutiny and can be considered by the sector itself. Members should be aware that another provision of the Bill—paragraph 12 of proposed new schedule 6A in clause 7(2)—requires the OfS to conduct a review of the complaints scheme or its operation and to report the results to the Secretary of State at the Secretary of State’s request. To impose further reporting, as required by the amendment, could be overly bureaucratic. However, as previously discussed, I am happy to reconsider the reporting requirements. I hope that that will satisfy my right hon. Friend the Member for South Holland and The Deepings. I will take the matter away and continue to consider it.

The Minister is becoming increasingly characterised by her willingness to listen, and that is the mark of any good member of the Government. All people who have been Ministers know that Bills improve through scrutiny—I am thinking of the right hon. Member for North Durham, and I am looking around for others. The right hon. Member for Hayes and Harlington was an aspirant Minister—an aspirant Chancellor, indeed. Governments that listen usually end up with better legislation, so it is of great credit to the Minister that she is listening to the scrutiny and responding with the tone that she is.

The hon. Member for Warwick and Leamington said that freedom is hard to quantify and that the measures in the Bill will be hard to measure. Freedom is like happiness. Neither is absolute, both are hard to define, but the pain of the absence of either is keenly felt and better cured. That is what the Bill tries to begin to do. I am anxious that it has the effect that the Government desire, and keen that we produce some means by which we measure that effect. The amendment may not be the ideal way of doing so, but I am grateful for the comments that have been made from across the Committee recognising that my attempt is to make the Bill as consistent in its application as possible, and as clear to those who will have to work with it.

On the basis of the Minister’s welcome willingness to listen and respond subsequently, and with one final caveat, I am minded to withdraw the amendment. The caveat is on my point about universities being obliged to report to the new director in those instances where there are matters of contention, such as changes to the curriculum, courses that are not run, or events that are stopped in some way. I have no doubt that that might form an amendment when this matter comes to the other place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)

Adjourned till this day at half-past Five o’clock.