Clause 7 - Complaints scheme

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee am 9:25 am ar 22 Medi 2021.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed: 36, in clause 7, page 8, line 24, leave out “at any time”.—(Matt Western.)

See the explanatory statement for Amendment 37.

Question put, That the amendment be made.

Rhif adran 19 Higher Education (Freedom of Speech) Bill — Clause 7 - Complaints scheme

Ie: 5 MPs

Na: 7 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

The Committee divided: Ayes 5, Noes 7.

Question accordingly negatived.

Amendments made: 12, in clause 7, page 8, leave out lines 40 to 42 and insert—

“(i) a student of the provider, or

(ii) a member or member of staff of the provider or of any of its constituent institutions, or”.

See explanatory statement to Amendment 8.

Amendment 13, in clause 7, page 9, line 6, after “provider” insert “or constituent institution”.

See explanatory statement to Amendment 8.

Amendment 14, in clause 7, page 9, line 18, after “provider” insert “, constituent institution”.—(Michelle Donelan.)

See explanatory statement to Amendment 8.

Photo of Matt Western Matt Western Shadow Minister (Education)

I beg to move amendment 38, in clause 7, page 9, line 27, at end insert—

“(e) A free speech complaint is not to be referred to the OfS under the scheme if a complaint relating to the same subject-matter is being, or has been, dealt with by the Office of the Independent Adjudicator.”

Photo of Christopher Chope Christopher Chope Ceidwadwyr, Christchurch

With this it will be convenient to discuss the following:

Amendment 39, in clause 7, page 9, line 37, at end insert—

“(1A) In reaching a decision under subsection (1)(a), the OfS must consider the other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equalities Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”

This amendment would require the OfS to consider other legal duties incumbent on higher education providers and students’ unions when reaching a decision as to the extent to which a free speech complaint is justified.

Amendment 40, in clause 7, page 9, line 42, after “may” insert—

“issue guidance, give a warning or”.

This amendment would allow the OfS to issue guidance or give a warning, instead of a recommendation, to governing bodies or students’ unions against which a complaint has been upheld.

Amendment 41, in clause 7, page 10, line 2, at end insert—

“(2A) In assessing whether to issue guidance, give a warning or make a recommendation, the OfS must consider the seriousness of the free speech complaint and whether the governing body or students’ union to which the complaint relates has repeatedly breached its freedom of speech duty.”

This amendment would require the OfS to gradate the penalty it issues to a governing body or students’ union according to the seriousness of the complaint that has been upheld against it.

Amendment 42, in clause 7, page 10, line 21, at end insert—

“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”

This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.

New clause 8—Guidance on making a complaint—

“(1) Notwithstanding clause 11, this Act cannot come into force until the Secretary of State publishes guidance for students, university staff, and others setting out which complaint route each should pursue, through which regulatory bodies, and in which order, when making a complaint relating to freedom of speech.”

This new clause would ensure that those engaging with universities knew which was the appropriate route to make complaints in the first instance, and how to escalate the process should that be necessary.

Clause, as amended, stand part.

Photo of Matt Western Matt Western Shadow Minister (Education)

It is a pleasure to see you back in the Chair, Sir Christopher.

The amendments collectively address the issues of duplication and confusion we see in the complaints process and identify what we regard as an essential matter, which is the serious omission from the Bill of an appeals process. Our proposals are designed to clarify certain points.

Amendment 38 is designed principally to clarify the relationship between the Office for Students and the Office of the Independent Adjudicator, the ombudsman. In the witness sessions, I asked the chief executive of the Office for Students, Nicola Dandridge, whether she could imagine any situations in which one body or individual might go to the Office of the Independent Adjudicator and another to the Office for Students, and how that might be reconciled. She replied:

“That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 111, Q237.]

That is one of those answers that we sometimes get, where there are a couple of double negatives and we are left wondering how nuanced a particular point is. In an online comment, Jim Dickinson of Wonkhe said that is not good enough and that we cannot informally discuss how to arrange the relationship when in the Bill itself there is no provision to lay out the framework. That is the root of the problem: the lack of clarity between both bodies is a serious structural issue in the Bill, which therefore needs structural modification.

We have the prospect of what I understand in legal terms is referred to as res judicata issues, which is the possibility of a case having already been decided if the same aspects apply. In its own impact assessment, the Department for Education said that in its cost-benefit analysis, one of the costs of the implementation of the complaints scheme was the cost to students of not knowing which route to go. During a meeting I had a while back with the University Alliance, it stressed that there was serious confusion between the responsibilities of the OIA and the OfS. The Universities UK advisory board has also said that the Bill could duplicate the existing complaints system of the OIA.

The OIA itself says:

“We remain concerned that having two complaints schemes for student complaints, with overlapping but not identical remits, is very likely to cause confusion and put additional pressure on students having to choose where to take their complaint about freedom of speech issues.”

It added:

“We are concerned that creating a second complaint route with overlapping, but not identical remits, will be confusing for students and add complexity for higher education providers as well as students’ unions and other student representative bodies advising students.”

We have the situation where it is possible for an incident to result in some individuals complaining to the OfS, others complaining to the OIA about the same incident and both receiving a different remedy, depending on the context of the complaint. In the case of David Palmer, a Catholic chaplain at the University of Nottingham, the student could go to the OIA, and David Palmer could go to the scheme. It was the same issue: two bodies, two remedies. That leads to an administrative nightmare.

Amendment 39 would require institutions to balance out other legal duties in the assessment of free speech complaints. Danny Stone of the Antisemitism Policy Trust told us:

“The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university. In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 129, Q283.]

Even the former Education Secretary, Gavin Williamson, said:

“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, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]

I accept that those duties already exist, but why not make it clear in the Bill that they interact with freedom of speech issues?

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

I can answer that question quite swiftly. We cannot get into the business of listing every single law in every Bill. The Bill, as the hon. Gentleman will recognise, does not supersede, contradict or replace existing law in relation to the Prevent duty—which is not a law, actually—or the Equality Act 2010. It is quite simple: we cannot get into the practice of having legislation where we list every other law on the face of each Bill.

Photo of Matt Western Matt Western Shadow Minister (Education)

I think it is important that there are references to other legislation in the Bill. Such elements are critical to the foundation of a freedom of speech Bill.

Amendment 40 would allow the scheme to result in a warning rather than a recommendation or a fine. This is about recognising that in most, if not all, cases, there is a fine line. It would allow universities to make judgment calls that were wrong and give them room to change their mind, rather than leap towards fines. We heard, for example, from Bryn Harris, who commented on how to balance

“the potential conflict that we were talking about, between the Equality Act”— harassment provisions “and this Bill”, which would have to

“have guidance to help universities navigate this very fine line.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]

Hand in hand with the guidance—not mandatory—is warnings, or gentle persuasion. The vice president of the National Union of Students, Hillary Gyebi-Ababio, said that it is

“really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 128, Q281.]

That, of course, will have a disproportionate impact on smaller institutions, as we have heard. We have repeatedly made the point about the smaller institutions, typically higher education bodies, but also further education colleges, that were not consulted at all in the drawing up of the legislation.

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

It is a shame that the evidence from the Association of Colleges came late. I want to draw Members’ attention to it. I said previously that the provision would apply to 170 FE colleages, and in its evidence the AOC gives the number as 169. It states that if the Government are able to exempt junior common rooms from the legislation, they should be able to exempt FE colleges, as there is no evidence of issues relating to freedom of speech in any FE college. As my hon. Friend the Member for Brighton, Kemptown has already mentioned, FE colleges are additionally regulated by Ofsted.

Photo of Matt Western Matt Western Shadow Minister (Education)

It is indeed surprising and disappointing, if not a failure of the process, that the further education colleges were not consulted. That point has been made clear and loud by the Association of Colleges, which feels alienated from this process, yet it will bear the same burdens as higher education institutions.

Turning to amendment 42, it is vital to include an appeals process. Appealing an administrative or judicial decision is the hallmark of any liberal democracy. The existing process overseen by the Office of the Independent Adjudicator does have an appeals process, but revealingly the Bill promises none. My hon. Friend the Member for Kingston upon Hull West and Hessle put that point to the only lawyer that we heard from in oral evidence, Smita Jamdar of Shakespeare Martineau. My hon. Friend asked her whether she was

“supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK”,

to whch Ms Jamdar replied:

“Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q111.]

Both the OIA and Universities UK highlighted the fact that in the Bill the Government are proposing a director of freedom of speech who is judge and jury in decisions on universities, and there is no right to appeal. Professor Paul Layzell from Universities UK picked up that point when he said, in what I think was a masterly understatement:

“I think we would have a concern.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 126, Q276.]

The OIA has an appeals process. Why does the OfS not have one or one that will be included in the Bill? Universities UK says there would be

“no right to appeal an OfS decision.”

It says that if there were a decision that a university student union felt was genuinely unfair, it would be forced to implement it, irrespective of whether it felt there was a right of reply. UUK underscored the fact that existing routes, such as the OIA, have an appeals mechanism. UUK feels that this is absolutely appropriate, and such a mechanism must be brought into the OfS scheme as well.

New clause 8, which stands in my name and that of my right hon. Friend the Member for Hayes and Harlington, has become significantly more relevant since we tabled it. The Minister has consistently referred to guidance in her replies to more or less all of our amendments. Now, she has the chance to let us see that guidance before the Bill is put in the statute book. We urge that that guidance be made available, before Report and certainly before the Bill passes into law.

We are not the only ones who want to see that in legislation. I recall Professor Stock’s comment:

“The Bill is quite vague, so it is going to need a lot of guidance, concrete examples and accompanying notes.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 6, Q3.]

In his testimony, Dr Ahmed said:

“With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 18, Q31.]

If the relationship between the duties in this Bill and the Equality Act 2010 are to be decided in guidance, as Dr Ahmed suggests, surely we have to see the guidance before the Bill is enacted. The force of the Equality Act 2010 could be undermined through the backdoor, with no parliamentary scrutiny. As Smita Jamdar said:

“I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 58, Q113.]

As I have said repeatedly, we need to see guidance on this before Report or, at the very latest, before the Bill receives Royal Assent. All these amendments tighten up the legislation, reduce or delete duplication and confusion, and underline the importance of an appeals process for all bodies, so that they can challenge any ruling from the OfS director of free speech.

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

It is a pleasure to serve under your chairship, Sir Christopher. I have to correct the record on the number of FE colleges affected. I originally said 170, then I said 167, but for the record this relates to 165 FE colleges.

My hon. Friend talked about amendment 39 and the reason we want to set out in the Bill the different pieces of legislation that could have an impact on free speech. The oral evidence we heard shows that there is confusion about how the Bill will interact with existing legislation.

UUK asks that the Government

“clearly outline how this Bill will interact with existing legislation and other duties which relate to free speech and academic freedom”.

Sheffield Hallam submits that:

“the Bill would set a higher standard for freedom of speech expectations, with consequent potential difficulties in relation to the 1986 Education Act, the 1998 Human Rights Act and the 2010 Equality Act.”

There is a lot of confusion about how the different pieces of legislation will fit together. I accept that my amendment might not be perfect in resolving that confusion, but that is the purpose behind it, so I hope that when the Minister replies she will acknowledge that the reason for tabling it was to offer some clarity to universities. How do they balance existing legislation with this new piece of legislation, which is meant to give freedom of speech?

Graduated sanctions are fairly standard practice in most situations for most organisations. Anyone familiar with employment law will understand that someone gets a written warning and then perhaps a final written warning—there are stages to go through before reaching the final sanction. That is what graded sanctions are about. At the moment, the OfS has only one option, which is to enforce compliance through monetary penalties. Many times we have discussed the different sizes of student unions and their different capabilities and amount of resource behind them. For a smaller student union, perhaps with only one or two full-time members of staff, surely there could be some form of graduated sanction, before moving into the heavy-handed fining system proposed. That is what we want to look at—the guidance and support before we reach sanctions.

As a primary school teacher, I like to think that I have some knowledge of the best way to ensure that people behave and work together well. As every good parent knows as well, we encourage and support before we reach, “You’re going to bed,” or, “You’re grounded.” The amendment is about putting in some reasonable steps before getting to the final stage.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown 9:45, 22 Medi 2021

My hon. Friend is explaining exactly what Trevor Phillips described. He said that a regulator does not go to the final fine or nth degree immediately; it works with, issues guidelines or goes in to provide support, and sometimes that is compulsory. The amendment would provide for what our witnesses said needs to happen.

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

The University of Cambridge submitted:

“A range of sanctions would allow for interventions which are more proportionate to the facts of individual cases, recognizing that some cases are more likely than others to constitute evidence of repeat or serious breaches of duty.”

Professor Kathleen Stock said:

“This legislation says that there should be a positive duty to promote academic culture. That could be a very positive, forward-looking initiative; it does not have to be heavy-handed, although obviously it has the capacity to be punitive. But there is also the dimension of encouraging universities to examine what the value is of academic freedom”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 7, Q6.]

As my hon. Friend the Member for Brighton, Kemptown mentioned: lots of witnesses said that we do not have to move straight to fines; there can be a range of sanctions.

A more concrete example of a good approach to graduated sanctions is that of the Advertising Standards Authority. It focuses on guidance before punitive action. Its website states:

“The vast majority of advertisers and broadcasters agree to follow ASA rulings and for those that are having difficulty doing so, rather than punish them, our aim is to work with them to help them stick to the Advertising Codes. However, for the small minority of advertisers who are either unable or unwilling to work with us, some of the sanctions at our disposal can have negative consequences.”

That is one example of a regulator encouraging and supporting before moving to punitive sanctions. The amendment, too, is saying, “Let’s have a look at a range of options.”

Regarding the appeals process, it is slightly bonkers—my right hon. Friend the Member for Hayes and Harlington pointed this out to me the other day, which made me chuckle—that we have more rights to appeal a parking ticket than a decision of the director for freedom of speech. If people get a parking ticket, they can make an informal appeal to the council, giving evidence and an argument as to why the ticket should not have been issued, but with the director for free speech there is no appeals process. That is slightly silly.

Most systems and organisations, such as Ofsted or the OIA, allow some form of appeals process—some way of going back to them to say, “I would like to appeal the decision. I don’t think you saw this piece of evidence.” Generally, with most regulators, an attempt at some form of appeal is involved, bringing it into line with existing practice. The amendments are sensible and straightforward. They would give people the right to appeal and provide for graduated sanctions, and I hope the Minister will accept them.

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

New clause 8 is a simple request to the Minister to issue some form of guidance about the relevant route for appeals before the legislation comes into force. I think it is quite significant. We are introducing a complex system of complaints and processes, as well as the potential for civil action. It is not much to ask that we get absolute clarity, so that those who will implement the legislation or be the victims of it know how the complaints system will work. I would welcome a commitment from the Minister that we could take to the Floor of the House to reassure people.

With regard to the issue about the rush to sanction, my only comment is that we are dealing with a pretty contentious area, where an element of mediation might resolve most of the problems. Previous progressive equalities legislation that some people have initially opposed has not involved heavy sanctions. In the main, the results have been resolution and progress through a process of education, engagement, mediation and resolution. I think the rush towards sanction will undermine the ability to mediate.

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

I apologise, Sir Christopher, for not being here at the outset. I always take the opportunity to declare my interests in the Register of Members’ Financial Interested. I am interested particularly in the University of Bolton.

Mediation would be an option available to the director. When the director receives a complaint or identifies a problem, I have no doubt that he will have at his disposal a range of mechanisms for dealing with it. This is not an either/or; it will depend on the severity of the problem, and sanctions will occur only where the matter is not dealt with satisfactorily. I do not think it is an either/or.

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

It would be helpful if we got on the record from the Minister the process that the Government envisage the director undertaking. I agree with the right hon. Gentleman that it is not an either/or, but let us make that explicit on the face of the Bill. If we can get a statement from the Minister to that effect, I will be happy.

I use the example of a parking ticket, but even with a speeding fine—I admit nothing—there is the offer of going on a course to address speeding behaviour. We are not even building that into the Bill. I would welcome the Minister making a statement that she expects the director to undertake that process of engagement, mediation and warning before arriving at a sanction, which could be counterproductive to that process of engagement.

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

Amendment 38 seeks to ensure that a complaint cannot be made to the new OfS complaints scheme if a complaint relating to the same subject matter is being or has been dealt with by the OIA. Proposed new schedule 6A to the Higher Education and Research Act 2017 enables the OfS to design the scheme. We expect it to provide that a free speech complaint is not to be referred to the OfS if a complaint relating to the same subject matter is being or has been dealt with under the student complaints scheme of the OfS. This is stated in sub-paragraph (2)(d) of paragraph 5 of schedule 6A to the Higher Education and Research Act 2017. I hope that reassures Members that this provision is already present in the Bill.

Amendment 39 seeks to set out on the face of the Bill that the OfS will have to consider the other legal duties placed on a higher education providers and student unions when making their decisions under the complaints scheme. Under clause 7, we fully expect the OfS to make a decision under the new complaints scheme as to whether an individual has suffered adverse consequences as a result of a breach of freedom of speech duties set out in proposed new sections A1 and A4 of the 2017 Act, as found in clauses 1 and 2 respectively. Those provisions are clear that the duty is to take “reasonably practicable” steps to secure freedom of speech.

The Bill does not say that the freedom of speech duties override other duties, and so it must be read consistently with other legislation. Let me be clear also that it would not be reasonably practicable for a provider or student union to act in a way that meant it was in breach of its other legal duties. Accordingly, when the OfS considers whether there has been a breach of freedom of speech duties, it will already have to consider all the circumstances, including other legal duties on the provider or the student union. I am grateful to be able to clarify this important point, and I hope that that reassures Members that the Bill does not override existing legal duties set out in the Equality Act 2010 or those under the Prevent duty.

Amendment 40 seeks to provide that when the OfS finds a complaint to be justified, it can issue guidance or a warning, not just a recommendation. Amendment 41 would require the OfS to take into account the seriousness of the complaint, as well as whether the provider or student union had repeatedly breached the freedom of speech duties. Paragraph 7(1) of proposed new schedule 6A to the Higher Education and Research Act 2017, as set out in clause 7, provides that the OfS “may make a recommendation” to a provider or student union where it considers a complaint to be wholly or partially justified. “Recommendation” is defined in paragraph 7(3) as a recommendation

“to do anything specified…or…to refrain from doing anything specified”,

and it may include a recommendation for the payment of compensation. To be clear, the OfS is not required to recommend the payment of compensation as part of its decision. However, where an individual has suffered adverse consequences as a result of the breach of these duties, it may be appropriate to do so.

In respect of the aims of amendment 40, the current drafting of the Bill gives the OfS sufficient flexibility to recommend to the provider or the student union that it should review its internal processes to ensure that they are fit for purpose, or that it should provide additional training to staff members. The OfS does not have to introduce penalties. A recommendation can cover any aspect that is relevant to the complaint, and in that sense it could be considered similar to providing guidance, or indeed a warning, on compliance with the freedom of speech duties in the future.

On amendment 41, as a matter of good decision making and the principles of public law, the OfS will need to take into account all relevant considerations when making decisions on complaints. This means that issues such as the seriousness of the complaint, and whether the provider or student union was repeatedly at fault, can be considered. The Bill provides for the OfS to set up the complaints scheme. The scheme must include certain provisions and may include others, as set out in the Bill. The OfS will be responsible for developing the finer detail of the scheme, and the Government expect that that will be done in thorough consultation with the sector and wider stakeholders.

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

I should have waited an extra moment, because I think the Minister just answered my question, which was about who else would be involved in the consultation. She mentioned wider stakeholders. Will she clarify whether that includes the National Union of Students?

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

Absolutely; we would expect the OfS to consult the NUS, as well as additional student unions and student representative bodies, to ensure that it hears a comprehensive range of views when developing the guidance. That will ensure that the details of the scheme can be developed as appropriate, as it would not be appropriate for primary legislation to set out every aspect of the detail. That is similar to how the complaints scheme operated for the Office of the Independent Adjudicator for Higher Education when it was established. The structure of the complaints scheme was set out in the Higher Education Act 2004, but its details were developed subsequently. I hope that that reassures Members that the Bill as drafted ensures that justified freedom of speech complaints can be dealt with by the OfS in the way that is most appropriate to each individual case.

Amendment 42 would allow higher education providers and student unions to appeal against a decision of the OfS under the complaints scheme. Clause 7 provides that the OfS may make a recommendation where a freedom of speech complaint is found to be wholly or partially justified. That gives rise to recommendations that are not legally binding, although of course we expect providers and student unions to comply. That is in line with many other redress schemes, including the scheme operated by the Office of the Independent Adjudicator, against whose recommendations there is no right to appeal. I think there is a little bit of confusion about that in the Committee, but I hope that I have clarified that on the record. As the recommendations are not binding on a provider or an student union, it is not necessary for there to be a route of appeal, because they are not legally required to comply.

In a case of non-compliance, of course, the complainant would have the option of bringing proceedings before the court via the new statutory tort. In doing so, the decision of the OfS in its complaints scheme, including reasons for the decision, will be part of the evidence put before the court. The approach of the complaints scheme is “distinct from” where a legally binding sanction is imposed on a provider by the OfS as a result of a breach of one of its registration conditions.

Photo of Emma Hardy Emma Hardy Llafur, Kingston upon Hull West and Hessle 10:00, 22 Medi 2021

I thank the Minister for that point about the OIA, but the OIA website states:

“A student or provider may ask us to consider reopening our review if they have new evidence that could not have been given to us earlier or think there is an error in the Complaint Outcome… Requests must be made within 28 days of the date of the Complaint Outcome or Recommendations.”

That sounds awfully like an appeals process.

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

There is no formal right of appeal. If a provider or student felt that there was a factual error, of course that would be outlined in the guidance by the OfS director in relation to this Bill as well.

In the case of a monetary penalty, which is something that hon. Members have raised multiple times, there is a right of appeal set out in schedule 3 to the 2017 Act. That will be available if a monetary penalty is imposed because of a breach of the new freedom of speech registration conditions in clause 5 of the Bill.

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

I am grateful to my right hon. Friend for drawing attention to the connection between this legislation and existing provisions. In the guardian of free speech’s dutiful determination to preserve that freedom, it is right that the watchdog barks before it bites. Equally, however, and as with some of the examples given in evidence by Professor Kaufmann, Professor Goodwin, Dr Ahmed and Professor Biggar, it seems to me that there has to be a righteous severity in the cases of those who cajole, bully, intimidate and cause fear across our universities, for that is exactly what is happening.

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

I absolutely agree with my right hon. Friend, which is exactly why we are bringing forward this legislation, which really will have teeth to tackle the issue at hand.

I hope that hon. Members are reassured that for binding decisions made by the OfS there is already a route of appeal in place, and that it is not necessary to have a route of appeal against non-binding recommendations.

New clause 8 would require the Secretary of State to publish guidance before the Act comes into force, setting out which complaints routes to use and in which order. The Bill provides for two new specific routes for redress: a complaints scheme operated by the OfS and a statutory tort. These replace what is currently available for breach of section 43 of the Education (No. 2) Act 1986, which is judicial review, giving the duties real teeth. These new complaint routes will be available in addition to other possible complaint routes, depending on the circumstances for students: the Office of the Independent Adjudicator for higher education and the employment tribunal for employees.

It is of course important that individuals are well informed about the most appropriate route for their complaint. For example, in certain cases a student may decide to go to the OIA rather than the OfS, for instance where freedom of speech is only a small part of their complaint. That is because the OfS will be able to make recommendations only on the free speech element of the complaint. The OIA and the OfS currently already work together in a variety of ways, and the Government will work with them to ensure that these processes are clear and accessible, so that students understand their options and both schemes are free of charge.

It is important to note that proposed new schedule 6A to 2017 Act, as set out in clause 7, will allow the OfS to provide in the scheme that it will not consider complaints where the same subject matter is being, or has been, dealt with by the OIA. A similar provision will apply the other way around, so the OIA will not consider complaints already dealt with by the OfS. As for the use of the tort proceedings, the Government expect that in most cases this will be used only as a last resort, as the Committee has already discussed, noting the availability of free routes of seeking redress.

Finally, it is likely that employment cases will be appropriate for those who have had employment disputes where there might be a number of employment-related issues to consider, not just academic freedom. The tribunal will be able to consider the question of academic freedom and alleged breached of the duty in this context, although the Bill does not give them jurisdiction to hear freedom of speech cases. New schedule 6A will enable the OfS to provide in a scheme that it will not consider complaints where the same subject matter is being, or has been, dealt with by a court or tribunal.

Now that I have made clear what each complaint route does and who they will be suitable for, I note that the main provisions of the Bill will not come into force until the day set by the regulations. One of the reasons for that is to allow time for the OfS to develop the new complaints scheme and draft comprehensive guidance, including guidance on the new complaints scheme, and consult as appropriate.

I hope hon. Members are reassured that the Government will work with the OfS to ensure that clear guidance is in place before the duties in the Bill come into force and the new complaints scheme and the tort become available. This will ensure that individuals are aware of their various options when seeking to bring a freedom of speech-related complaint.

The strengthened freedom of speech duties set out in clauses 1 and 2 will ensure that higher education providers and student unions are under clear legal obligations to take steps to secure lawful freedom of speech and academic freedom. Nevertheless, it is important that individuals can access a route to raise complaints where they have suffered a loss as a result of a breach of those duties.

Clause 7 ensures that by providing for the establishment of a new complaints scheme within the Office for Students for complaints relating to a breach of the new freedom of speech duties. This will operate alongside the complaints scheme run by the Office of the Independent Adjudicator for Higher Education, a scheme for students with complaints against their provider.

The OfS complaints scheme will provide an accessible, free route for individuals to bring freedom of speech and academic freedom-related complaints against a higher education provider or student union where they have suffered adverse consequences as the result of a breach of duties in new sections A1 and A4 respectively. The scheme will be overseen, as we have talked about extensively, by the new director for freedom of speech and academic freedom.

The scheme will be available for those to whom duties are owed under new sections A1 and A4—students, members, staff and visiting speakers—which will significantly extend access to redress in terms of freedom of speech and academic freedom cases. There is currently no similar route for anyone other than students to bring complaints against their provider.

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

I know it was not strictly in our amendments, but I hope that before the Minister sits down she will respond to the points made about the inclusion of further education colleges, and how all this relates to the 165 further education colleges that are registered as higher education providers.

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

To respond directly to the hon. Lady’s point, we think it is right that FE colleges are in scope within the Bill. They are already regulated by the OfS when they put on courses of higher education, so this is not a change for them. They are already subject to working with that regulator, as well as Ofsted and so on. It is right that we ensure that this provision is comprehensive and that we protect freedom of speech for students who are studying higher education in further education settings as well as those studying in higher education settings.

Students will continue to be able to raise complaints with the OIA, but will also benefit from the new complaints scheme in the OfS. Students will have the option to raise freedom of speech and academic freedom-related complaints via the OfS scheme, or to raise their complaint with the OIA, as they can now. Where a complaint has been found to be wholly or partially justified, the OfS will be able to make a recommendation to the higher education provider or student union, which could include a recommendation to pay a specified sum in compensation or, for example, a recommendation to reinstate a complainant’s job or place on a course.

Without this new complaints scheme, staff in the higher education sector and visiting speakers would have no access to a cost-free route to seek redress against a provider, and there would be no way to complain about the student union. This clause provides a free complaints route to individuals, whether higher education staff, students, academics or visiting speakers, to seek redress for an improper restriction of their lawful free speech. The scheme will ensure an accessible route to individual redress that is backed up by new, strengthened duties provided in this Bill.

Photo of Matt Western Matt Western Shadow Minister (Education)

So much of what is being promised will be guidance or provided in due course by the OfS, but it is far from concrete in the way the witnesses asked for. I am surprised and disappointed that the Minister has still not made one reference in the entire time this Committee has been sitting to the Charity Commission and the role it will have in this system. It is far from clear how the OIA and the OfS will work. I appreciate that it has been said there will be some guidance on that, but as we have said throughout, there is a duplication here that will be extremely hard for people to navigate way through.

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

I think it is fairly easy. A person can pursue an HEP against the NUS via the OIA or the OfS, or an ET, overseen by the DFSAF, and of course the DFE. What is the problem?

Photo of Matt Western Matt Western Shadow Minister (Education)

My right hon. Friend expresses the nature of the problem: it is as clear as mud. It will be impossible for most students to navigate their way through this, and that may be a major part of the problem.

I have taken on board some of the Minister’s comments on our amendments. However, I really think the appeals process should be written into the legislation at this stage, and therefore we wish to press amendment 42 and new clause 8 to a vote. This part of the Bill is clearly important, but there is so little clarity about how it will work in practice. It must therefore be a real concern to all of us. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 15, in clause 7, page 10, line 29, after “provider” insert

“, a constituent institution of such a provider”.

See explanatory statement to Amendment 8.

Amendment 16, in clause 7, page 10, line 32, after “provider” insert

“, a constituent institution”.—(

See explanatory statement to Amendment 8.

Amendment proposed: 42, in clause 7, page 10, line 21, at end insert—

“(8A) The scheme must provide an appeals process for governing bodies and students’ unions that have had free speech complaints upheld against them.”—(

This amendment would require the free speech complaints scheme to have an appeals process for higher education providers and students’ unions.

Question put, That the amendment be made.

Rhif adran 20 Higher Education (Freedom of Speech) Bill — Clause 7 - Complaints scheme

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.

Clause 7, as amended, ordered to stand part of the Bill.