Clause 6 - Regulation of duties of students’ unions

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee am 5:45 pm ar 20 Medi 2021.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Matt Western Matt Western Shadow Minister (Education) 5:45, 20 Medi 2021

I beg to move amendment 77, in clause 6, page 7, line 10, at end insert—

“(3A) Any monetary penalty will be limited to a maximum amount set out by the Office for Students decided in consultation with representative bodies of universities and of students’ unions.”

This amendment would ensure that there is a limit on the penalty to be paid by an individual or institution as a result of this legislation.

With the amendment, of course, we have clause 6. The concern that we have throughout the Bill is the additional burden that it will place, as we have said so many times, on the universities, colleges and others that will be covered by it, as well as the student unions. We have to put this in the context, which I have cited before, of what is going on and what the Government seem to be doing, which is centralising powers in bodies that are not necessarily independent in the way that they are suggested to be. I really am very worried, like my right hon. Friend the Member for North Durham, about how this really centralising and very authoritarian Government are introducing red tape and placing more burden and more cost on institutions and student unions. We see this in other fields as well.

What is clear from this legislation and what we have heard in evidence is just how much responsibility will fall to student unions. The regulatory burden that they will face is really disproportionate. They are already subject to the regulation in this area by the Charity Commission. However, in the Bill, there is no mention of it, even in the schedule, as far as I can see; perhaps the Minister can point it out to me in due course. I cannot see anything about the Charity Commission, which is the regulator of student unions. Looking at the Bill, we would not even know that the Charity Commission existed or had any remit over student unions. It is not in the body of the Bill; it is not even in the schedule—it is nowhere. Perhaps it is the case that the Government want to leverage out the Charity Commission from any say in what goes on in our universities. Perhaps the Minister could address that point specifically. As has been said before, how will the Office for Students and the Charity Commission engage? Student unions are unincorporated associations, so it is not clear how these penalties will apply in practice. Also, the proposals covered in the Bill do not recognise the devolved nature of student unions’ governance, as we have said before. For example, a chair of a society may not follow an agreed procedure, which could result in an invited speaker needing to be disinvited once due process was followed.

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

I will continue to make this point, because it is an important one that needs to be made: not all student unions are wealthy institutions. As I have already mentioned, the Bill includes higher education organisations and further education colleges that might not even have any full-time officials working for their student union, but will have to comply with this heavy piece of legislation.

The problem with the Bill is that it has been written in the belief that every university is like the Russell Group universities, forgetting the many York St Johns and Liverpool Hopes out there, which are much smaller institutions but still part of the higher education landscape. How on earth would some of those student unions be able to afford to comply with the legislation, as the Minister is asking them to?

Photo of Matt Western Matt Western Shadow Minister (Education)

My hon. Friend is right, and that is a point I was going to come on to. I was just looking through my notes about the Office of the Independent Adjudicator and I saw that it said its membership has increased from 150 providers in 2014 to almost 800 providers in 2021, and that is an absolute plethora of universities, colleges, and so on. They are all of different sizes. An agricultural college might have a couple of hundred students, or as could a specialist performing arts college, a music college or drama college. What on earth will this measure do to such institutions, in terms of their liability and responsibility? They will certainly not be able to afford and sustain societies in their student unions.

It is incredibly concerning and there is almost a failure in the Bill to accept the burden that will head the way of these colleges from Government. I think we heard that really clearly from Hillary Gyebi-Ababi, the vice president of the National Union Students. She talked about the huge financial impact on the sector, saying:

“If I am being completely honest, a lot of stuff in the Bill is really, really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128.]

In another evidence session, my right hon. Friend the Member for Hayes and Harlington made the point to Professor Kathleen Stock that

“The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are”.

Professor Stock replied:

“I can see that it is a risk.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 14.]

Professor Layzell of Universities UK also gave evidence, saying:

“Again, we would want the sanctions to be proportionate. I think I would look at it in the context of us all wanting to do better in this space.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126.]

On Second Reading, a point was made by my hon. Friend Mary Kelly Foy:

“In fact, Durham University has informed me that, far from encouraging a wider range of views, the threat of sanction could actually result in a more risk-averse speaker programme.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]

A great many more people from across the sector, including from student union bodies, have registered that concern about how they see the Bill having the reverse impact to the one intended, and having a chilling effect of reducing free speech and debate on our campuses, irrespective of their size.

Since becoming shadow Minister, I have met the National Union of Students several times—remotely, of course—and I am pleased to support amendment 77, which it helped to construct and which would introduce an upper limit on the fines. It is vital to have visibility of what sanction or cost there will be. There needs to be a schedule of the maximum penalty an institution could face. How will it be proportionate? Will it depend on the number of students at a college, or will it depend on the nature of the transgression? How on earth will it work?

Photo of Emma Hardy Emma Hardy Llafur, Kingston upon Hull West and Hessle 6:00, 20 Medi 2021

I am in complete agreement with my hon. Friend. Going back to the point regarding student unions, a one-size-fits-all fining system could find that for a student union with a much lower income and smaller resources, the proportion as a percentage would be much higher, which is why, as my hon. Friends propose, we need consultation with representative bodies of universities and student unions. If we want to impose the same punishment in relative terms, that could then be done accurately.

Photo of Matt Western Matt Western Shadow Minister (Education)

The frustration from right across the sector is that there has not been more consultation, discussion and engagement about the issue and how to address it, and how to deliver legislation that might be workable across the sector with the representative bodies, the Government and so on.

My concern is that this measure is another example of how the matter has been left wide open, and that is problematic for the bodies—in this case, the National Union of Students and the various student unions. In the short time that I have had in terms of exposure to the sector, I say to the Minister that it has a profound and growing distrust of the Government because of this legislation. It feels as though the sanctions have been designed to damage or nullify student unions. On that note, I will sit down.

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

I make this simple point. Like my hon. Friend, I have met the National Union of Students to talk about the legislation. One question asked was, “What have the Government got against young people?”, because this seems to be an attack on an organisation that young people rely on. I do not understand it. If the legislation is to act as a deterrent against poor behaviour, the Government need to set out what the deterrence is. If there is an element of risk if procedures are not adhered to, that needs to be set out. Normally when introducing sanctions, at least there is a tariff system of some sort. In this legislation, there is no tariff. We are completely in the dark.

The obvious solution is to simply consult people about what the levels should be and how they should relate to certain types of behaviour. In normal circumstances when we impose sanctions, that is what Governments do. Even when it comes to criminal sanctions, there is extensive consultation. Certainly when they introduce civil elements of a sanction, there is detailed consultation throughout with the relevant parties, but that has not taken place in this case. All the amendment would do is ask the Government to sit down with the relevant bodies that will be affected so that they can agree, or at least be consulted on, the nature and level of the sanctions that will be introduced, and—we have referred to this in previous debates—a realistic maximum that does not break the institutions that the Government seek to work with.

When the Government introduce contentious legislation such as this, it is best to take people and the organisations that will be affected with them. The best way of doing that is to engage them in consultation and discussion about the detail of the legislation as it is rolled out. I hope the Minister can give us some assurances—

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

It is important to set out in this Bill the thresholds of the compensation that can be paid because that will also help the court process. We heard in evidence that a large amount of the cost to the court could come from arguments and wrangling about what the actual damage cost is. If that is laid out by the OfS, that reduces the burden of the cost to the courts.

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

There is the process of the tort, the process of the civil actions that will take place and the process of the monetary penalties imposed by the OfS. The courts eventually, after precedents have been set, will arrive at some level of compensation. Unless we can set out a legal tariff early on, it will be up to the courts and anything could happen.

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

Maybe I am unfairly anticipating what the Minister will say, but I assume it will involve the words “guidance”, “waiting” and “after the Bill”—perhaps not in that order. Therefore, if this will be looked at in guidance after the Bill in consultation, does my right hon. Friend agree that it should be put in the Bill right now?

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

Confidence in legislation is secured through engagement, consultation and, where there is disagreement, an understanding to disagree. Then when the Bill is taken to the Floor of the Commons, the confidence of Members has been gained because there has been that thorough consultation. Unless that is done, Members are voting for a pig in a poke. Unless the detail of the regime is set out—in particular, the tariffs and what the maximum will be—how can people vote for this legislation, knowing what its implications are?

To go back to the point that my hon. Friend the Member for Brighton, Kemptown made, let us distinguish between what the courts will do—they will set the level in due course through precedent and so on—and the scheme. The sanctions, the tariffs and the maximum monetary penalties are to be set by the Government. I therefore make the very simple point that when Governments set tariffs in this way, to gain the confidence of the House it is usually best to explain what the tariffs will be.

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

Again, to stress the point about consultation, as I was trying to explain previously, if this is not done in consultation with student unions, especially small student unions at smaller higher education institutions, this will bankrupt them. I am sure the Minister does not wish to be the person responsible for the bankruptcy of a number of student unions up and down the country. I therefore advise that the consultation and guidance be done before Members of Parliament get to vote on the final Bill.

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

It is just the simple approach of talking to student unions and saying, “What effect would this tariff have on you? Would it push you over the edge? Would it bankrupt you? Is this an appropriate sanction? Would it act as a deterrent? Would people appreciate the risk that they are undertaking by non-compliance with the OfS’s requirements on these individual bodies?” Universities and student unions will almost certainly be consulting their insurance providers about the potential risk and the level by which they have to insure themselves to ensure that they, quite properly, exercise their fiduciary duty of protecting their organisation in the light of that risk. How can they do that if they do not know what is coming at them down that tunnel? The light that is coming at them could be a huge train hitting them with a huge fine.

Photo of Matt Western Matt Western Shadow Minister (Education)

I could not agree more. As my right hon. Friend described it—he has years of experience in this place—the concern is about how we go through the process of devising and constructing legislation by using a collaborative approach. If we do not pursue that, it could readily be interpreted as wishing to intimidate student unions, which is my real fear. The Bill is designed to act as a big, stamping foot and say, “We’re not going to tolerate this kind of behaviour any longer.” The Government could simply have created a schedule and worked with the student union bodies to devise what the implications might be for insurance, as my right hon. Friend describes, and what would be a proportionate way to introduce some kind of sanctions scheme.

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

That is what generated my question. Why are the Government targeting young people in this way? It would not take much for the Minister to go away and to come back and give the House an indication, at least before Report, of the types and level of sanctions the Government are considering. When the Bill goes to the other place, there will be some insistence on that.

It is very rare for this House not to have some indication of the scale of a sanction that is being introduced in criminal or civil law, because it is seen as unfair. In both the Commons and the other place, there has been a consistent standard of behaviour: when the Government impose sanctions they undertake considerable consultation, so that people have confidence in the legislation that is passed, and in the institution that will adjudicate on the monetary penalties levied. I speak as someone who has been trying to amend Government legislation for about 23 years, even when my own party was in Government. It is a very simple point—nothing more than that—but it is important and is at the heart of the legislation.

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

Under the amendment, that the monetary penalty that the Office for Students can impose on student unions for breach of their duty to protect freedom of speech will be subject to a maximum amount, set by the OfS and decided following consultation with representative bodies of higher education providers and student unions. However, the Bill already provides that the amount of the monetary penalty is to be decided by the OfS, in accordance with regulations made by the Secretary of State; the regulations will of course be subject to parliamentary scrutiny. This mirrors the approach taken in section 15 of the Higher Education and Research Act 2017 on monetary penalties imposed on higher education providers.

Photo of Matt Western Matt Western Shadow Minister (Education)

Given what the Minister was just saying about the promise from the previous Secretary of State, will she say precisely when that will be? She is obviously aware of something that I am not. As my right hon. Friend the Member for Hayes and Harlington says, we would like to see that before Report.

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

I am not going to set out a detailed timetable, but I assure the hon. Member that there will be sufficient consultation with both the sector and student unions.

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

Further to the point raised by my hon. Friend the Member for Warwick and Leamington, the Minister mentioned parliamentary scrutiny, and I want to press her on this issue. She should be able to give us at least an outline of whether we will know about this before Report, before Third Reading and before it goes to the Lords. When will parliamentary scrutiny happen? On something as important as this, surely we should have some indication from the Government.

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

This is in line with how we have done legislation before, and to have in the Bill the details of the exact things that the hon. Member is asking for would not be appropriate.

Several hon. Members:

rose—

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

I will give way to the right hon. Gentleman, but if I can then make some progress, I might actually answer some of the Opposition’s questions.

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

What would be helpful—before Report, at least—is to have some discussion on the draft regulations. I understand that it is not possible to publish the regulations formally, but we could have a discussion on the draft regulations before Report, so that Members can at least be assured of the range that the Government are thinking about with regards to the monetary penalties.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education) 6:15, 20 Medi 2021

Our process here is in line with section 15 of the 2017 Act. It is suitable for secondary legislation that will be subject to sufficient parliamentary scrutiny.

The regulations will make provision about the matters to which the OfS must or must not have regard when imposing the penalty. We intend to ensure in that way that the penalty is set at a reasonable and proportionate level. In making the regulations, careful consideration will be given to student unions’ status and financial position, and their varying sizes,.

Photo of Matt Western Matt Western Shadow Minister (Education)

I hear the Minister, and she is a decent individual—I am sure that she means well and I trust her—but one cannot say that a speeding fine is proportionate to the driver when one person can afford it and another can ill afford it. We have repeatedly made the point that there is an absolute diversity of institutions, so there is real concern about the measures.

The Government are on a bad wicket already, and given the way that they are going about this, they will lose the faith and trust of the sector, particularly of student unions. I urge the Minister to take on board the suggestions made by my right hon. Friend the Member for Hayes and Harlington to bring the draft regulations as early as possible before Report, to give us an indication of where the Government are heading with the measures.

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

I think what is actually important is to have sufficient time for engagement and consultation with the sector and student unions, for the very reasons given about their varying size, financial assets and so on. Rushing the regulations would have an effect contrary to what Opposition Members are arguing for.

It is important to note that the power of the OfS to impose a penalty will be subject to the safeguards set out in schedule 3 of the 2017 Act. That reflects the approach taken to the monetary penalty under section 15 of that Act. We see no reason to deviate from that tried and tested approach.

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

I thank the Minister for giving way again—she is being generous. To make it as simple as possible, we would like to know when we will find out what the maximum penalty will be. She talks about parliamentary scrutiny and the need for consultation. To be as clear as possible, will we know before the final vote on Third Reading?

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

I think that I have been quite clear, but I shall be even clearer: the regulations will be passed via secondary legislation, when there will be an opportunity for hon. Members to scrutinise those decisions. We want to ensure adequate time for consultation with the sector and with students unions to get that right.

Photo of Matt Western Matt Western Shadow Minister (Education)

The Minister is being incredibly generous. She said that the Government do not want to rush the regulations and need time to go through the proper process. I remember that in March last year, when former Home Secretary Amber Rudd was no-platformed at Oxford, the previous Secretary of State—bless him—said, “Right, that’s it. We’re going to bring forward this legislation.” Here we are, 18 months later. There has been plenty of time, and this has been on the cards for some time, particularly because the legislation has been driven by Gavin Williamson. It would have been possible to produce the draft regulations if the proper consultation process had been gone through. I really fear that they are being held back for political reasons, and that student unions are going to be hit hard.

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

I have reiterated many times, as Hansard will show, that it is not our intention to hit, penalise or alienate student unions. We are talking here about proportionate measures to protect freedom of speech. We will ensure that there is a consultation and that the voices of student unions are heard so that the regulations are right.

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

The Minister mentioned “proportionate measures”, so will she commit to ensuring that the regulations reflect the size of the institution or student union, and the ability of the student union to comply? I am worried because if, after consultation, there is a flat rate, that would be disproportionate.

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

Before I finish, I will repeat what I said a moment ago. In making the regulations, careful consideration will be given to the status and financial position of student unions and their varying sizes. I hope that having that confirmation on the record will satisfy hon. Members.

Photo of Matt Western Matt Western Shadow Minister (Education)

I hear what the Minister says. It is so frustrating because we want to be constructive. We want to mitigate the damage of the Bill, but it has been so badly conceived, with so many gaps in it, so much information lacking, and so much left to guidance, it is really problematic. It should be for all of us across the Committee, to accept this. We will vote for our amendment, and hold back on the clause.

Question put, That the amendment be made.

Rhif adran 16 Higher Education (Freedom of Speech) Bill — Clause 6 - Regulation of duties of students’ unions

Ie: 6 MPs

Na: 9 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

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

We know the important role that student unions play in ensuring that freedom of speech can thrive on our university campuses. We therefore know how vital it is for the current legislative framework to be extended to student unions and approved fee cap providers—a category of registered higher education providers—as provided for by clause 2. It is necessary to have mechanisms in place to ensure that the freedom of speech duties of student unions are monitored effectively, and that action is taken if the freedom of speech duties are infringed.

Clause 6 extends the regulatory functions of the Office for Students so that it can regulate the student unions. It does that by inserting new section 69B into the Higher Education and Research Act 2017. That new provision will require the OfS to monitor whether student unions are complying with their duties under proposed new sections A4 and A5, as inserted by clause 2. If it appears to the OfS that a student union is failing, or has failed, to comply with its duties, the OfS will be able to impose a monetary penalty. That will enable the effective regulation and enforcement of the freedom of speech duties of student unions by the OfS.

The power to impose a monetary penalty is based on the existing enforcement regimes for higher education providers, and is intended to encourage compliance. Proposed new section 69B will also require the OfS to maintain and publish a list of student unions and approved fee cap providers. That will make it clear which student unions the OfS has been informed by these providers are subject to the duties in new sections A4 and A5. It will also require those student unions to provide the OfS with information that it may require for the performance of its functions.

These new regulatory functions are intended to support the new duties in clause 2. Together with clause 2, clause 6 will ensure that freedom of speech is protected not just by higher education providers but by student unions and across campus. I believe it is a necessary and important part of the Bill, and I beg to move that it stand part.

Photo of Matt Western Matt Western Shadow Minister (Education)

It was not just our amendment 77. The nub of the problem is how student unions are being muscled by the Government to do certain work for them. I cannot help but use the word “authoritarian” throughout, but this heavy jack-boot seems to be stamping down on student unions across the country, particularly the smaller ones, which will not have the scale, finances or resource to sustain the obligations that the Government are putting on them—particularly if that is the Government’s aim. Maybe their intention throughout all this is to see the demise of student unions and maybe some alternative structure to replace them.

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

I found this the most disappointing part so far because we are talking about issues of equality. The Minister said she had the higher education and further education brief because they wanted to bring more equity into those areas. We know what will happen under the Bill: the student unions with money and resources will be able to comply and continue, and the student unions without them will not; they will not be able to offer what they have been able to offer so far. It is incredibly disappointing for the Minister to say that secondary legislation will be where the consultation happens. That is an incredibly disappointing response from the Minister. I hope she will recognise that what the Bill actually does is create a system where only the elite universities have functioning student unions and the rest of the students can do without.

Photo of Matt Western Matt Western Shadow Minister (Education)

Labour cannot support this clause in its entirety. There are many points that could be highlighted. New section 69B(9) states::

“If a students’ union fails to comply with a requirement under subsection (8) and does not satisfy the OfS that it is unable to provide the information, the OfS may enforce the duty to comply with the requirement in civil proceedings for an injunction.”

God, the heavy hand of Government! It is like the opening credits of Monty Python with that hand coming down from the clouds and stamping on the little person, and that is the case for student unions across the country.

Photo of Matt Western Matt Western Shadow Minister (Education)

I stand corrected. The hon. Member obviously misspent more of his time than I did watching that. Whatever part of the anatomy it was, it was coming down rather heavily on the small person. That is what the Government are seeking to do. It is quite clear that the intention in No. 10 and its policy unit is to drive out student unions in this case and change the representation on how bodies may be affiliated on our campuses.

Too much of the clause is down to guidance and none of it has been done in collaboration with student unions. Student unions are not professionally organised with huge resources behind them to counter this and take the Government on. I would have thought the Government would be much more willing to work with student unions and with the National Union of Students and say, “We want to collaborate with you. We do understand there is this issue, and you perhaps appreciate there is a bit of an issue in certain places. How is it that we go about best addressing this issue across certain campuses?”, realising that it is not the case across 98.9% of events. We cannot support this. The obligations and duties on student unions are far too onerous, and we will be voting against the clause.

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

As we have heard, this is one of the most worrying parts of the Bill because it seeks to regulate private associations even further. It is a very dangerous step because it starts to undermine freedom of association and the ability of people to do what they wish. Student unions, of course, came under the regulation of their institutions through the Education Act 1994. That Act also allowed students to opt out, which was widely touted to be an attempt to bring in an Australian-style opt-in for student unions, in the hope that it would destroy them, as happened in Australia. That failed, and more than 25 years later this is the next attempt to try to undermine and obliterate student unions and to obliterate the poorest or most fragile parts of our HE sector.

For the juggernauts in Oxford and Cambridge, half of their student activities will not even be regulated. The OfS will be able to delve into the work of a local debating club in a small specialist institution with maybe 300 to 400 undergraduates, but it will not be able to touch the Oxford Union. It will not be able to touch a junior common room in Oxford, but it will be able to touch the junior common room at Lancaster University, because it is run in a different style. It is total inequality and really concerning.

Then we are having another regulator. We already have the HE regulator. The case law starts with Baldry v. Feintuck, which was one of the biggest cases. Baldry was a Conservative MP, and Feintuck was president of Sussex’s student union, and then he went on to be my primary school teacher.

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

It does possibly explain a lot. He was also clerk to one of the parish councils that I served on, so our lives have been intertwined.

That case said that student unions are excepted charities. As a result of the Charities Act 2011, student unions are not only excepted charities and therefore exempt, but regulated directly by the Charity Commission. As charities, they have a duty to be non-partisan, to be balanced and to ensure that they fulfil all the requirements of the Charity Commission, and we know that the commissioners have great powers to step in if charities are being partisan. So we have a great deal of regulation for student unions already.

Of course, in the HE sector, which this clause covers, student unions are part of that broader assessment that Ofsted has to make when assessing the student unions of the further education college, so now we have a fourth piece of regulation.

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

I want to give a tangible example, just in case the Minister has missed this. This regulation, as written here, will apply to Basingstoke College of Technology’s student union. By dint of the college being OfS-registered, because of its HE provision, its student union, which is currently governed by some 17-year-olds keen on running Rag Week, will have to comply with the regulations written here and, as we have heard from the Minister, there will be a fine of an undisclosed amount if they do not, yet still JCRs will not have to comply. Does the Minister not accept that applying this to every single student union, regardless of whether it forms part of an FE college or an HE college, is a little over-bureaucratic?

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

My understanding is that this relates not just to the student union’s activities be in the HE sector, but to the whole of the student union’s activities, even in the FE part of the institution, so student unions in that sector may face more administrative and regulatory burdens than their parent institutions. It is a bizarre situation. That is why this whole provision must be withdrawn, or voted against, or at least rephrased. The Minister must make sure that this is restricted to only that part of the activity that is HE, and that the regulation is light-touch, and she must make reference to how this relates to Charity Commission regulation. That does not apply for higher education institutions, because they are not regulated by the Charity Commission; they are exempted charities. Since 2010, student unions have not been exempted, so they have to register. They are regulated charities, and this measure is totally contradictory to the current regulation.

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

It might be useful if I clarify for the hon. Member that, where student unions are registered charities, charity law will still apply to them. The OfS will only regulate student unions on freedom of speech matters.

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

Of course I understand that, but a complaint is not simple and will not be simple. For example, a charity that is seen to prejudice one part of speech, particularly political speech, would be in breach of charity regulations already, because we cannot privilege one part of speech or one part of activities as a charity because it is political speech. That is quite right, excepting the ruling of Baldry v. Feintuck, which says that political party associations of students can be supported within the student union if it is self-organised, because it is not the political activity it is supporting but the educational activity of students mocking up being in a political party, so they can hold mock elections and so on.

There is detailed case law and detailed legislation. The danger is that this Bill runs roughshod over that. People would have two places where they could complain. The complainant can go to the Charity Commission, where there is a basis of case law that is already very nuanced, and they can go to the OfS, where there is no case law and no such basis. Because we know the OfS will not necessarily be built with lawyers or making its decisions based on case law, the danger is that we will end up getting semi-contradictory decisions.

Baldry v. Feintuck says that student unions are free to support a Conservative club, for example, and to give money to that student Conservative club for its operations, as long as it offers the same amount of resources to the Labour club, the Lib Dem club or whatever different clubs might come along. There is a danger, however, that free speech regulation will say, “Actually, the regulations need to be different and will require the clubs to accept a broad range of views.” That is different from the basis on which those clubs have been set up.

I ask the Minister to reconsider ensuring that there is a direct reference to the Charity Commission and to the order of priorities in which someone would make a complaint to a student union. Currently, they could make a complaint to the institution, to the Charity Commission and the OfS.

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

And the OIA. I would appreciate the Minister doing that, because it is a minefield. We heard as much from the representative of Universities UK, who said that they were deeply worried that this would confuse the matter and make things more difficult in terms of regulation.

Before I finish, I will touch on the finances. Universities effectively have the powers to raise finances through their recruitment of students and the research grants they get. Universities live and die, in that sense, in their corporate actions. Student unions, for the most part, raise no money themselves. Gone are the days of the student bar and the student club. If Conservative hon. Members think that student unions get money from those, I am afraid they are misguided. The vast majority of student unions rely solely on a grant from the university. They are solely dependent on the university, higher education institution or further education institution.

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

Listening to the debate, I am quite perplexed. On the one hand, the Opposition argue there is no problem with free speech, but on the other, they argue that once the Bill is introduced, virtually all student unions will be fined because they will be breaching it, and they will not be afford the fines. I am a bit confused about the argument here.

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

My argument does not necessarily only deal with fining; I am talking about regulation as opposed to fining, and we have had a debate on that. The point on fining is that we are worried that we will end up seeing a chilling effect and people coming forward vexatiously. That is a real concern—[Interruption.] The hon. Member for North West Durham groans, but he should stand up and say why he groans—give a speech or make an intervention supporting the Bill. He has said very little.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

I think that is a bit unfair. I do not quite understand where the hon. Gentleman thinks all of these vexatious claims will come from, and why they are about to happen. Why, in this instance, with student unions specifically, does he think that there will be millions of vexatious claims trying to close them down at the drop of a hat?

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

We have heard that “where there’s a blame, there’s a claim”. We have seen it in road traffic, and we have actually seen an increase in litigation in the higher education sector, which is deeply worrying. Government witnesses talked about the commercialisation of the HE sector and students demanding that they get the results that they want.Those demands have actually led to universities being more restrictive in what people can say. This will increase that.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

The evidence that the hon. Member is pointing to is on students and their universities, and I can quite understand that. This point, however, is all about student unions, so I would like to understand why he thinks that student unions will be targeted, rather than education providers.

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

Because, so far, student unions have not had that contractual relationship, with the ability of students to take them to court for failing to fulfil a service. That is my point about where the money comes from. At the moment, the student gives the money to the university. The contract for a basic service is between the student and the university. This extends that, so the student then has a direct contractual relationship with the student union.

If the hon. Member thinks that every single student will agree with what their student union is doing, and that no student will try it on, then I am afraid that his university experience was far too bland. My experience was of debate and contestation, and of people arguing and wanting to push the boundaries—quite rightly. This will not help that, because it will regulate student unions in a way that means they cannot then defend themselves properly. The reason for that is the financial point, which I was trying to come on to.

The university gets money from the student. They then give a grant—usually a small one—to the student union, which then spends, effectively, the university’s money. My understanding is that, according to the Education Act 1994, the university has an oversight role for how that money is spent. Yes, the student union can spend it how the students want, but within a framework that the university sets out and lays down. If the student union is liable, whose money are they liable with? That is what I am trying to get at.

If the OfS puts forward financial sanctions, whose money are they sanctioning at the student union? The student union’s money is just the university’s money, held in trust and spent on behalf of the university. Would student unions need to raise unrestricted monies, somehow? We know that most student unions do not raise unrestricted monies any more, because gone are the days of the bars. Or would student unions, if they were fined by the OfS, need to use their restricted university grants on this? If so, that clashes with the concept that that university grant is restricted to only the educational activities of the student—not for liability claims against the union. It seems strange that they would face this double regulation, and money able to be drawn from all different quarters, when they have no money themselves.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

It is a bit unfair to call the hon. Member for North West Durham—my neighbour—“bland”, but anyway. Surely, what will happen is that student unions will take out indemnity insurance, whether they need to or not? That, again, is more money going away from education and into the coffers of insurance companies.

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

Either they will get indemnity insurance, or they will find a way to be covered by the institution’s indemnity insurance, which, again, defeats the whole point that student unions are regulated directly. We might as well regulate the institution, which would then have a duty—as they already do—to ensure that the student union is following the rules.

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

Another alternative is, of course, based on examples like the one I gave of Basingstoke College of Technology’s student union, and the other smaller student unions that exist out there. They simply stop having a student union and stop engagement, because some of these smaller colleges and institutions, which I have drawn attention to several times, could not afford the insurance. Those unions do not get much money from their colleges, which are their main providers, and therefore might not exist in the future. It would be a devastating impact of this Bill if we ended up with fewer student unions around the country.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown 6:45, 20 Medi 2021

We have talked in great detail—possibly too much for some Members. The point is that, in regulating the institution, where it is institutional money and resources, the regulation already flows down to the student union. That is the argument that the Minister has used for the junior common rooms. That already exists.

Double regulating the student unions actually confuses the matter. It makes it more difficult for complainants to seek redress, because student union premises are usually university premises. Who are they seeking redress from? Also, it potentially produces financial settlements that student unions would not be able to pay and that the university would effectively have to bankroll, but it would not allow the university to make representations to the OfS, in this case because the representations are directly with some 17-year-old who is the president of the union. It makes no sense whatever.

The legislation should be, as with the Education Act 1994, in the institution, which then supports the students to get it right. That is why the clause should be withdrawn. It would be a better Bill for it.

Question put, That the clause stand part of the Bill.

Rhif adran 17 Higher Education (Freedom of Speech) Bill — Clause 6 - Regulation of duties of students’ unions

Ie: 9 MPs

Na: 6 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 6 ordered to stand part of the Bill.