PARLIAMENTARY DEBATE
Higher Education (Freedom of Speech) Bill - 7 February 2023 (Commons/Commons Chamber)

I beg to move, That this House disagrees with Lords amendment 10.

With this it will be convenient to consider Lords amendments 1 to 9, 11 and 12.

Mr Deputy Speaker:

“Freedom is a fragile thing…it must be fought for and defended constantly by each generation”.

Ronald Reagan said those words in 1967. More than 50 years later, our generation is facing our own battle for freedom: the freedom to express our opinions and debate controversial ideas without fear or favour. Ironically, this is happening in our universities, which traditionally have been the very institutions that have challenged prevailing wisdom, from the effects of smoking to the theory of evolution and our understanding of climate change. That is why I am delighted to be here today to discuss the Higher Education (Freedom of Speech) Bill.

First, I thank my predecessors for all their work in taking the Bill through the House last year, and my ministerial colleagues for their efforts in the other place. This is a contentious subject matter, and I know they have spent many hours thoughtfully considering the points that have been raised on all sides throughout the Bill’s passage. I am pleased that, after discussions, noble peers have now agreed that there is an issue to address, as the noble Lord Collins of Highbury acknowledged on Report. I am grateful to peers for their careful consideration of the Bill.

Today, I ask my hon. Friends and hon. Members to consider the amendments made in the other place. I will address each set of amendments individually, beginning with the statutory tort, which provides a means by which individuals can seek redress through the courts if they believe that certain duties in the Bill have been breached. This measure will be critical to stimulating the cultural transformation that we need. I am grateful to Baroness Barran and Earl Howe for leading debate about the tort in the other place. In the end, the other place voted in favour of amendment 10 to remove the clause containing the tort from the Bill.

I assure the House that we heard very clearly the strength of feeling about the tort. Those feelings have rightly set the context for careful deliberation about the Government’s position now. I have spoken at length to leaders and academics in the higher education sector. I stand firm in my belief that the tort is an essential part of the Bill, and I disagree with its removal.

The Minister will forgive me if she is coming to this point, but as a Liberal I believe passionately in freedom of speech, as I believe does she. The clause to allow statutory tort was removed by a Conservative former Universities Minister in the other place, with cross-party support. Does she agree that, rather than supporting and encouraging free speech, we risk inhibiting it? Cash-strapped student unions may not invite particular speakers for fear of legal proceedings that they would not be able to defend. Does she agree that she is actually working counter to her own values and beliefs?

Having spoken to many academics and people in universities at the moment, I firmly disagree. They are the people who would like that sort of protection. They think it would give them a legal backstop to the duties that we are placing otherwise in the Bill. Let me reassure the hon. Lady that the Government do not want providers being taken to court without good reason and being forced to defend themselves against unmeritorious or vexatious claims. We do not expect that to happen. The tort has always been considered a backstop.

The vast majority of complaints should be resolved through the new, free-to-use Office for Students complaints scheme, or through the Office of the Independent Adjudicator for Higher Education. In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS or the OIA. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.

The problem with the tort clause is that it also applies to student unions and student associations, which were always free to invite people that they wish to invite along. Conservative clubs only invited Conservative MPs. They did not have free speech in the club per se; they were Conservative-minded and they did not necessarily invite Labour-minded people. But within the student union and the university as a whole, students were free to have clubs and societies that might be Labour clubs, Marxist clubs, further right clubs or whatever mix they wanted. That is enshrined in the Education Act 1994 and the judgment of Baldry v. Feintuck. The danger is that the tort affects those clubs and will have a chilling effect on student unions, which might say that it is easier for those clubs not to exist, and they will therefore fall out of regulation—

Order. If the hon. Gentleman wishes to make a speech, he should put his name in. That was not an intervention.

Respectively, I disagree with the hon. Gentleman. I do not think that would be the case. The Government are committed to strengthening the protection for lawful freedom of speech on campus, as set out in our manifesto. If providers fail in their duty to take steps to secure freedom of speech within the law, individuals who have suffered as a result should be able to secure real remedies, including by means of civil proceedings. For all those reasons, our position is that the tort should be reinstated in its original form for further consideration in the other place.

Amendment 3 was tabled in the other place by the noble Lord, Lord Collins of Highbury, and received support from all sides. It will prohibit higher education providers and their constituent colleges from entering into non-disclosure agreements with staff members, students and visiting speakers in relation to complaints of sexual misconduct, abuse or harassment or other forms of bullying or harassment. I believe that Members on both sides of the House will welcome the inclusion of this provision in the Bill. It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them even with their family or close friends. This does not come down to politics, in my view; it is about doing what is right.

Will the Minister give way?

I will not, as I have to make some progress.

It is impossible to understand the full extent of this practice—by definition, NDAs too often remain hidden from view—but a 2020 BBC investigation found that nearly a third of universities had used NDAs to deal with student complaints. I agree with those in the other place, who proposed and supported the amendment, that we cannot allow this practice to continue.

Many institutions have already signed up to a voluntary pledge rejecting the use of NDAs in such circumstances. That pledge was launched by the previous Minister for Higher and Further Education and now the Secretary of State for Science, Innovation and Technology, my right hon. Friend the Member for Chippenham (Michelle Donelan), together with Can’t Buy My Silence. However, many institutions have not done so, despite strong encouragement from the Government. This amendment builds on the strong foundation of the Government’s work in this area over the last year and brings a legislative means to end this abhorrent practice for good.

It is important to appreciate that this is not a total ban on the use of NDAs. There are some circumstances where an NDA is appropriate—for example, to protect intellectual property or commercially sensitive information —but as I said, using NDAs to silence victims of this type of conduct is entirely wrong. I therefore wholeheartedly support this amendment. Not only is it vital for the welfare and wellbeing of victims, but by enabling them to speak out and provide information to others about their experiences, it will extend protections to students and others on campus.

I will now speak to the group of amendments concerning the definition of freedom of speech. There was much debate in the other place about whether the Bill would benefit from a more expansive definition of freedom of speech, and peers subsequently agreed a number of Government amendments to that effect: amendments 1, 2, 4, 5, 8 and 9.

Amendment 4 amends the provision in new section A1(11) of the Higher Education and Research Act 2017, inserted by the Bill, which previously set out what freedom of speech in the Bill includes. The amendment refers to the freedom

“to impart ideas, opinions or information… by means of speech, writing or images (including in electronic form)”.

That wording is derived from article 10(1) of the European convention on human rights and is also used in the Bill of Rights Bill. There is also a reference to article 10(1) of the ECHR, as incorporated by the Human Rights Act 1998. The drafting is deliberate in reflecting that freedom of speech in the Bill has broader application than freedom of speech in article 10, because students’ unions are not public authorities and are not subject to the ECHR.

The other amendments are consequential on amendment 4. For example, where previously the Bill referred to “ideas or opinions” in certain provisions, to achieve consistency, those references need to be changed to “ideas, beliefs or views”. These consequential amendments do not change the meaning of the original drafting.

There are also minor and technical amendments made by the Government to the Bill. Amendments 6, 7 and 12 clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life—in particular, members of the governing councils of universities and also retired academics who are emeritus professors.

However, it became apparent from debate in the other place that some universities and colleges treat their students as members for life—for example, the University of Cambridge. As a result, the Government tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. These amendments do not affect the position where a current student’s freedom of speech is wrongly infringed, in so far as they may still make a complaint about that even after they have left university.

Finally, amendment 11 distinguishes between new functions imposed on the OfS by the Bill. It will amend the power in new section 69A(2) of the Higher Education and Research Act 2017, inserted by the Bill, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values. The original drafting replicates section 35 of the Higher Education and Research Act 2017 about identifying good practice relating to the promotion of equality of opportunity.

However, that wording might lead to confusion that this power relates to the new duty on providers and colleges to promote the importance of freedom of speech and academic freedom that is in new section A3 of the 2017 Act, inserted by clause 1 of the Bill. I can confirm that it does not. The OfS will have a duty under section 75 of the Higher Education and Research Act to give guidance on how to comply with the duty under section A3. There is no overlap with section 69A(2). Accordingly, section 69A(2) is different, providing the OfS with a general power to disseminate good practice and advice on how to support freedom of speech and academic freedom. The amendment makes that distinction clear.

I hope my words today have provided clarity and reassurance on the amendments made in the other place. Once again, I thank Members of the other place for the time and scrutiny they gave to the Bill. Our opinions on the statutory tort differ, though, as I still firmly believe it is an essential part of the Bill and an integral part of ensuring that freedom of speech is properly protected in our universities.

Let me start my remarks with the word “otiose”. Occasionally the words that frequent a debate come to symbolise the essence of that issue, and for our debate on Lords amendments to the Higher Education (Freedom of Speech) Bill the word is otiose. It is not a word I had had the privilege of encountering before, but it is a word that will forever be linked to this Bill.

This legislation is now almost worthy of two candles in the making and baking. It is almost two years to the day that the former Education Secretary but five laid the foundations for the debate we are still having on how freedom of speech should be protected on university campuses. I deeply regret that we are still having that debate, not least because every hour of parliamentary time spent debating the Bill and its provisions is an hour not spent debating the real issues faced by students and wider society.

I would be grateful for some clarity from the hon. Member. He says that the whole Bill is otiose, but does he not recognise any challenge to free speech on university campuses in this country?

We are talking about the Lords amendments, and what is otiose is the debate that was had in the Lords specifically about the tort I am about to speak to.

Every time I visit a university campus, I not only talk to vice-chancellors and senior leadership teams or tour a new teaching block, but insist on meeting students. I meet them, often on my own, to hear their concerns—the unvarnished truth of what is happening on our campuses—and, above all, to listen to their priorities. I can categorically say that not once has a student ever told me that the risk to freedom of speech on campus is their most pressing concern. Why would it be when three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 10% of students are using food banks to get by. These insights and statistics are all gleaned from a recent survey by the National Union of Students.

It is now a sobering 637 days since the Bill was introduced in this House—incidentally, the longest that any Bill sponsored by the Department for Education has taken to progress through the House since 2010—and during that period we have had three Prime Ministers and five Education Secretaries. The higher education brief has been bounced around the portfolios of five different Ministers like a political pinball but without the wizard—so much so that I find myself in the somewhat absurd position of debating a Bill about freedom of speech on campuses and academic freedom with a Minister for children, families and wellbeing.

I know that students have all sorts of quite proper concerns about their budgets, but does the hon. Member not acknowledge that there is a tremendous problem with a form of totalitarianism that, instead of encountering opposite views and challenging them, simply tries to silence them? Is he not appalled by the fact that Balliol College—Wesley’s own college—banned the Christian Union, with all the dangers that Christianity might pose to those poor delicate students?

I thank the right hon. Member for his comments, and for the style and energy that he brings to such interventions. The cases the right hon. Gentleman has been talking about are exceptions. Indeed, Office for Students statistics show how few cases there have been. I was making a point about the amount of parliamentary time that has been devoted to this over two years when there are much larger issues at play on our campuses.

The hon. Gentleman says these are marginal considerations. I do not know whether on the visits he has described—which sound picturesque, as well as being, no doubt, informative—he ever meets members of the University and College Union, because its survey on this matter found that 35% of academics self-censor for fear of the consequences of saying what they really believe.

I talk to members of all university communities of course, as the right hon. Member would expect: I talk to the senior leadership teams, UCU members, Unison members, those who are non-affiliated, and also students. I listen to all points of view across the piece. I am sure that occasionally the right hon. Member did not say what he would have liked to have said in a Cabinet meeting when in power, but that is the nature of how society works and there should be no difference between what happens on campuses and in wider society.

Anyone would think that the Minister’s colleagues have come to the fair conclusion that the Bill is more about political posturing than delivering on students’ priorities. Let me be clear for the record: this Higher Education (Freedom of Speech) Bill and its passage through both Houses is a product of a Government who are out of touch, out of ideas and out of steam. It has been a masterclass in how not to pass legislation.

Members opposite say the banning of the Christian union was a disgrace, but is there not a real danger with this Bill that all societies will be banned from campus because the university will not then have to worry about regulating them, so it will exacerbate the problem, not help it?

I thank my hon. Friend for his important intervention. He is absolutely right, and he and many others on our side made that point repeatedly in Committee about the unintended consequences of the Bill, which would have a chilling effect. Those are the thoughts of Lord Willetts and many others in the House of Lords as well, who made it clear that that would be the result, particularly among smaller institutions, that may be less familiar to certain Members across the House, which do not have the resource or capacity to be able to administer these measures.

Ministers are choosing to ignore the widespread condemnation of the tort from Members in this place, Lords, sector representative bodies, students, trade unions and academics. They are seemingly prepared to carry on regardless. As recognised by so many, the tort is a clause primarily in search of a problem, but perhaps that is the point for Ministers. It is otiose; that is to say it serves no practical purpose or result.

Put simply, the objections to the tort raised in the other place are damning. I am well aware that this Government do not value expertise or experts, but, my God, they should. Their predisposition towards certain right-wing think-tanks has cost this country dear, and in terms of legal matters, or indeed the tertiary education landscape, the intellectual heavyweights in the other place, comprised of former vice-chancellors, current chancellors, former Supreme Court justices, ex-Masters of the Rolls and many former Education Secretaries and universities Ministers, have a brain quotient that is certainly higher than two. Their collective experience dwarfs that of the current Education team, and for that matter my own experience. It is for that reason that I take very seriously the warnings and advice given by peers in the other place, and, importantly, not just from one party but from across the House. There is perhaps no other clause in the Bill that provokes such widespread condemnation as clause 4, allowing individuals and groups to sue universities for losses resulting from a university or student union failure to secure their free speech duties.

Speaking of brains, Lord Willetts, a former Minister for higher education, believes that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble. In other words, the prospect of vexatious litigation will have unintended consequences.

Lord Grabiner, an eminent jurist, went further and feared that the clause could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That may all be well and good for well-funded free speech litigators, perhaps with the unlimited support of the Free Speech Union, but for small institutions and higher education providers in particular, it will be crippling. He poses the question we all want the answer to:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 210.]

Perhaps the Minister can give us a satisfactory answer today.

Even if we agree with the principle of the statutory tort, it is totally unworkable in its current form. The ex-Master of the Rolls, Lord Etherton, identified two glaring deficiencies in the tort as it stands. First, it is not clear what level of loss or damage is required for a successful claim. Secondly, it is also not clear what category of persons is entitled to make a claim. Lord Etherton concluded that

“it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.” —[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 706.]

That leaves the tort as both undesirable and unworkable.

As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counter- productive, as I was saying a moment ago. The Russell Group has reiterated its warning that:

“Managing the potential for litigation would…likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.”

In other words, we could have the worst of both worlds: no liberalising effect on free speech on campus, but with all the associated costs of legal action.

One student union I heard from recently informed me that there is currently no budget allocated for paying for legal action. Legal advice would need to be paid for out of its reserves. To make matters worse, it claimed that it would also be impossible or difficult to obtain insurance for such legal action. In a sense, therefore, student unions will be doubly bound, being required to build up large enough reserves in preparation for fighting such lawsuits, while also having to engage in expensive legal battles. Using that money will inevitably detract from student welfare budgets, SU facilities and the much-valued nature of campus culture. I return, once again, to the ever-prescient question posed by Lord Grabiner in Committee in the Lords:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”

I thank my right hon. Friend for his intervention. He is absolutely right that these sorts of events could go underground, with restricted access, and, because they will be displaced off campus, they will be beyond universities’ jurisdiction.

I could go on and on about the issues with the tort, but lords from across the House of Lords made them absolutely clear. Consistently attacked from numerous angles, from numerous sources and for numerous months, the Bill has taken two years just to get to this stage. It is flawed in so many ways, although that increasingly seems to be the hallmark of this Government. Even the Minister in the Lords, Earl Howe, was prepared to concede on making the tort a remedy of last resort and limiting it to those who have suffered a loss. In what is perhaps the shoddiest part of the Bill’s progress so far, the Minister before us is now asking us to disregard her own counterpart’s suggestions for improvement in the other place, in the light of no new evidence. If it did not have such potentially damaging consequences for students and universities, it would be ludicrous. It is for the reasons I have just outlined that Labour will oppose the inclusion of this undesirable, unworkable and counterproductive tort in the Bill in the interests of students, staff and even freedom of speech itself.

I rise to support the Bill in general, and specifically to support the Government’s decision to reject Lords amendment 10.

It continues to be a matter of great regret that in a country like ours, it should be necessary to legislate to protect free speech, but we have reached a point where it clearly needs to be done. Freedom of speech is a cornerstone of any democratic society, and in a society like ours it should be a given. Throughout history, philosophers have understood that creativity and progress in a society depend on acts of intellectual rebellion, dissent, disagreement and controversy, no matter how uncomfortable they may be. To a very large degree, freedom of speech matters most when it is controversial, because this is how pre-existing thinking can be challenged and new ideas can develop. In a democratic and free society, discussion, challenge and debate are healthy, and our universities have traditionally been at the forefront of this battle of ideas.

As I stated on Second Reading, university should be a place where ideas are freely exchanged, tested and, yes, criticised. However, in recent years, free speech has increasingly been eroded, particularly on university campuses. I served on the Public Bill Committee and the evidence we took from eminent academics was deeply worrying, so much so that I really do wonder if the hon. Member for Warwick and Leamington (Matt Western) was actually listening. Evidence was given of the chilling effect in universities, where academics feel obliged to self-censor for fear of the consequences of daring to express views that do not accord with an increasingly intolerant monoculture.

One of our witnesses was Dr Arif Ahmed, reader in philosophy at the University of Cambridge. He informed the Committee, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) said, that a 2017 University and College Union survey found that 35% of academics felt obliged to self-censor. To paraphrase Dr Ahmed, many academics are not speaking their minds or pursuing important research, simply because they fear facing disciplinary action from their university or being ostracised by their peers. As Professor Matthew Goodwin of the University of Kent told the Committee, not only does the issue affect academics, but a quarter of students are self-censoring.

If academic freedom is under threat, so too is freedom of speech. Another of our witnesses was Professor Kathleen Stock; she was still at the University of Sussex at the time, but shortly afterwards she was finally hounded from her job after enduring an entire year of bullying, marginalisation and intimidation. In recent years, there have been repeated accounts of speakers whose views do not correspond with the prevailing monocultural mindset being disinvited from speaking engagements, of reading lists being censored, of publishing contracts being cancelled, of reputations being trashed, and of “safe spaces” being created in which nothing but the prevailing view is permitted to be heard.

The truth is that it is not about protecting delicate sensibilities from offence; it is really about censorship. After all, in a free society people can always protect their own sensibilities if they wish: by not going to the speech, by not watching the film, by not reading the book. Nobody is compelled to engage if they do not wish to do so, but when people are explicitly or indirectly no-platformed, those who take such decisions are not protecting themselves; they are denying others the right to hear those people and challenge what is said. That is exceptionally damaging. If dissent and debate can be silenced at university, they can be silenced elsewhere.

As I outlined at the beginning of my speech, I cannot support Lords amendment 10, which would delete clause 4. Clause 4 is what gives the Bill its teeth. Removing it would reduce much of the Bill to impotence; retaining it is crucial to securing the cultural and behavioural shift needed in our higher education sector. The Minister said:

“I stand firm in my belief that the tort is an essential part of the Bill.”

I entirely agree.

I will conclude by quoting George Orwell:

“If liberty means anything at all it means the right to tell people what they do not want to hear.”

George Orwell’s words remain just as apposite today as when he wrote them nearly eight decades ago. The Bill will protect that liberty, and I fully support it.

I rise to speak in support of Lords amendment 3. I am frankly delighted that it has received Government support. It will do what I and others across the House have for some time been calling for, which is to ban the use of non-disclosure agreements by universities in cases of sexual harassment, sexual abuse, bullying and other forms of misconduct.

I thank everyone who has worked on the campaign. I thank Lord Collins for tabling the amendment; the right hon. Member for Basingstoke (Dame Maria Miller) and the hon. Member for Birmingham, Yardley (Jess Phillips), who have campaigned with me; and Zelda Perkins and Can’t Buy My Silence for their tireless campaigning over the years. More importantly, I want to thank the young women, particularly Ffion from the University of Oxford and everyone involved in the campaign It Happens Here—those brave survivors who have spoken out about their experiences.

My involvement began as the constituency MP for some of those young women, who first came to me in 2018 with shocking testimony about gagging clauses being included in agreements signed in the wake of an instance of sexual assault. One woman had to sign not an NDA—this is a critical point—but a no-contact agreement that prevented her assaulter from having access to her accommodation, among other safety measures. That agreement, which was meant for her safety, included a clause that prevented her from making any information public about the assault, or indeed about the investigation. It was so poorly explained that she took it to mean that she could not even speak to her GP.

I have since spoken to a number of heads and principals of colleges. Many are not defending such behaviour; they are often coming from a place of wanting to try to protect both students—it is often another student who is involved. It comes from a good place, but the consequence is frankly devastating. That is why Lords amendment 3 is so necessary.

The other element that needs to be improved in most colleges and universities is the complaints process itself, which is deeply flawed. All it does is cause young women —and those who have spoken to me have invariably been young women—to feel retraumatised as a result of the process that they have had to undergo. Because the safety measures were included, this particular young woman felt forced to sign the agreement. She was therefore silenced by a process that was supposed to protect her. Other students have told me similar stories. One said that the gagging clause

“felt like the icing on the cake of a ridiculous system that had let us down. The disciplinary process had failed to sanction a rapist, but was threatening us with sanctions if we talked about it.”

How on earth can that be right?

The pledge launched by the campaign group Can’t Buy My Silence, in conjunction with the Department for Education, was certainly welcome—76 universities have signed it so far, committing themselves to ending the use of NDAs in cases of this kind—but, like other campaigners, I feared that it did not go far enough. It was particularly concerning that there were no sanctions for breaking the pledge, and it was largely dependent on universities’ opting in. Oxford’s It Happens Here—Oxford is the university with which I have been dealing with the most—has noted which Oxbridge colleges have signed it. The Minister may be shocked, as I was, to learn that there are only four, three at Oxford and just one at Cambridge: three out of 44 colleges and one out of 33. Moreover, that is replicated in institutions throughout the country. The take-up of the pledge has been poor, which is why we needed the Government to step in with this legislation. However, I hope other Members agree with me that this should not apply only to universities, because the same thing is happening in workplaces all over the country, including charities and voluntary organisations.

This is, I hope, the start of something much bigger. Last year I tabled a private Member’s Bill which would ban the use of NDAs and confidentiality agreements by any organisation or institution in cases of sexual assault, harassment and bullying. We are looking for a vehicle with which to bring the whole shebang back; the Victims Bill may be one, but we are looking for others. My Bill —which I recommend the Minister to push to other Departments that have not quite got there yet—is modelled on legislation that has already been passed in Prince Edward Island in Canada. A similar Bill is making its way through the Irish Senate, and the Speak Out Act was passed in the United States in November, so we would be very much in line with similar countries.

I am of course pleased that the Government are now supporting this move in the context of universities, but I want to ask the Minister some specific questions. First, does it apply only to legally drafted non-disclosure agreements, or will it also cover no-contact agreements in the confidentiality and gagging clauses? It is worth pointing out that those are already non-binding legally, and would not pass muster if they were brought to court. By what mechanism can we ensure that these things will definitely no longer happen? For survivors, a gagging clause has just as much impact as any legally binding non-disclosure agreement. We know that such clauses have become boilerplate language in no-contact agreements between a survivor and perpetrator, and we must ensure that new legislation clamps down on this extremely harmful practice. Silence cannot be a condition for safety.

I would also like some clarification of the Department’s plans for implementing these measures—and, in particular, the timeline—and of how the legislation will affect existing NDAs that have already been signed by students. Will it be retrospective, or will it apply only to future agreements? The message to universities is clear, but these are specific questions that I am being asked by young women who have already signed these agreements.

The survivors who have spoken to me are being taught that their pain and their voice do not matter, and that the reputation of an institution is more worthy of protection that they are. We should be taking—and are taking—all possible steps, and wasting no time, to stop this happening. We all know that there is a difference between the time when an amendment is passed and the time when it is enacted. I urge the Minister please to pass and enact this quickly.

Finally, please will the Government back my private Member’s Bill? It is a Bill that mimics a Conservative party pledge in, I think, 2017. There is cross-party support for this across the House and it is now time to ban these non-disclosure agreements, not just in universities but in any workplace and, frankly, anywhere.

I rise to speak in favour of the Government’s motion to disagree with Lords amendment 10. As has been mentioned by other hon. Members, this Bill has been introduced because freedom of speech and academic freedoms are under threat in our universities. That has been well evidenced during the passage of the Bill and, as has already been mentioned, a recent report shows that 35% of British academics surveyed self-censor, and Office for Students data shows that 193 speaker requests or events at English universities were rejected in 2021, compared with just 53 in 2018. And of course there have been numerous high-profile cases of cancellation, including those of Helen Joyce, of the Israeli ambassador and of my right hon. Friend the Member for Stratford-on-Avon (Nadhim Zahawi) when he was Education Secretary. This Bill is clearly very much needed.

I rise to oppose the motion to disagree with Lords amendment 10.

There ought to be a basis for cross-party agreement, as there was in the Lords. I sense from many of the contributions so far that there will not be cross-party agreement, and that wiser heads are not prevailing on the Conservative Benches—those wiser heads are being kept below the parapet.

I read the letter that the Minister circulated yesterday, in which she acknowledged that creating a statutory tort

“has been a contentious measure throughout the passage of the Bill”.

That is something of an understatement. She went on to acknowledge that, in what she must recognise was a thoughtful and serious debate in the other place, many peers had

“raised concerns that the measure would subject higher education providers, colleges and students’ unions to costly, time consuming and unmeritorious or vexatious claims”.

But in her letter she just brushed that aside, on the basis that she had spoken to many academics who agreed with her, which is a rather interesting example of cancel culture at work, as she casually disregarded views that do not fit with her own.

We should be clear in this debate that, on both sides of the House, we all strongly believe in freedom of speech within the framework of the law. We should particularly cherish it in our universities, but we should also recognise the difficulties associated with legislating to that end. The right hon. Member for Chippenham (Michelle Donelan), the former universities Minister and, as of today, the new Secretary of State for Science, Innovation and Technology, saw those difficulties for herself when she explained the Bill’s operation at the start of its long life.

The hon. Member for Orpington (Gareth Bacon), who is no longer in his place, said he is concerned that we have reached the point at which this sort of legislation is necessary. How we manage the rights and obligations of free speech has been a live issue of concern for many years, and not simply in relation to universities. That is why Parliament has framed the limits of free speech.

In a previous life, I was responsible for co-drafting the University of Sheffield’s code of practice to ensure compliance with section 43 of the Education (No. 2) Act 1986, and I oversaw its operation in providing a platform for speakers with whom I profoundly disagreed. There is an irony in that, because the Government soon came to regret the way the Act’s provisions were used to secure platforms for those with whom they profoundly disagreed, and they raised those concerns with universities and students’ unions.

Some of the invitations to speakers after the passage of the 1986 Act were made vexatiously by those who were more interested in testing the legislation, or in trying to create embarrassment for a university and its students’ union, than in the issue under discussion. The fact that 36 years on we are debating the same issue is a reflection of the difficulties of making laws in this area, and that is something we should think about carefully when there are good alternatives.

More recently, I served on the Public Bill Committee for the Higher Education and Research Act 2017, and I recall expressing my concerns over aspects of the Government’s proposals for the creation of the Office for Students. I argued with the then Conservative Universities Minister, now Lord Johnson of Marylebone, who made the case for the Office for Students as the way of regulating the sector. So I was interested to read his contribution to the debate in the House of Lords, where he argued that clause 4 was not only unnecessary but would “undermine the regulator”—the regulator that the Conservative Government have put at the centre of the higher education architecture in this country. He powerfully made the case that the OfS can deal with these issues more effectively than civil litigation by imposing

“conditions of registration on any provider that falls short of the enhanced duties created by this Bill.”

He went on to say that those conditions of registration provide a wide range of

regulatory tools…from simply seeking an action plan from a university…through to imposing fines on an institution if it does not deliver”.—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 716.]

I was also struck by the contribution of another Conservative former Universities Minister, Lord Willetts, who highlighted the role of the Office of the Independent Adjudicator, in addition to the OfS, in providing a “clear process” to which any student can turn with a concern about any potential suppression of freedom of speech. But far more importantly—this point has been made and Ministers would do well to pay regard to it—Lord Willetts argued that the provisions of clause 4

“could have exactly the opposite effect to the one intended.”

He set out two ways in which this might be the case. The first was that

“people who are thinking of…inviting speakers or organising events—

would be—

“inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action”.

I have to say that in a different way I saw that chill factor in operation as a result of the 1986 Act.

Secondly, Lord Willetts highlighted the costs of litigation and the uneven resources available to those taking and defending action, pointing out that there is a “real risk” for student unions that would not have the resources to defend themselves against litigation. As he said, student unions

“are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 713.]

He pointed out that the “threat” of potential litigation that could bankrupt a student union would not serve the interests of freedom of speech in our universities.

So two former Conservative Universities Ministers—the two who have arguably had the most impact on our higher education system over the last 13 years—are both saying that the tort provided by clause 4 is wrong and both back Lords amendment 10. It did not stop there. Lord Pannick argued that effective regulation from the OfS is quicker and cheaper than civil litigation. My good friend Lord Blunkett, who has talked about his experience of being no-platformed as a Secretary of State, made the case that the tort will cause “more confusion” and “difficulty”. Lord Grabiner has been mentioned and, as somebody who should know, he said that High Court judges are less well placed than the regulator to deal with these issues. Lord Macdonald, as a former Director of Public Prosecutions, said that the clause, far from encouraging free speech, will have a “chilling effect”.

The case could not be clearer. Creating the tort would cause confusion, slow down redress, open the terrain to vexatious claims, waste resources, undermine the regulator that this Government have put in place and, above all, create a chill factor that would undermine free speech. We should come together tonight to reject clause 4 and support Lords amendment 10.

I rise in support of the Government and am pleased that they have decided to reinstate the clause that includes the tort. I was taken aback by the shadow Minister’s suggestion that such a provision was otiose. He suggested that there are much larger issues that the House should be debating. I think that this is where we see a real difference between our parties. The fact is that we think that few things are more important than the quality of cultural and academic debate in our country, and the context in which young people are educated and brought up. But a spirit of oppressive cultural conformity has taken root across the institutions of the United Kingdom and, worst of all, it has taken root in our universities, where freedom of speech should be protected.

I draw the House’s attention to my entry in the Register of Members’ Financial Interests. I receive donations from the University of Sussex to provide services for some of its politics students, and I received donations at my first election from the University and College Union. I am also a trustee at the University of Bradford student union, and we had our trustee board meeting today.

One worry for student unions, such as the one that I sit on in Bradford, is how we would manage this kind of law. Only a few years ago, the Prevent laws caused us real problems in relation to inviting speakers along to the university. I remember once trying to bring in a speaker who had served time in prison. We wanted him to talk to the students about the folly of his ways—the stupidity of radicalisation. The very best person to speak to students who are likely to be radicalised is probably someone who has been radicalised and has come out the other side. The paperwork that had to be completed for this speaker meant that the students from the Islamic society felt that it was just too complicated to do, so they backed off and self-censored.

The problem with the Bill is that all such student societies will self-censor. Students will say, “It is too complicated to invite a speaker in. It is too risky for student unions,” so they will just not be invited. There will be equal speech because there will be no speech. That is the reality of some of these clauses, particularly the tort element because it puts liability not only on trustees like myself—I am big enough and can take it—but on student trustees who are finding their way in the world. To put such liability on them so early on is rather dangerous.

The protections are already there in previous education Acts. We heard about the 1986 Act, as well as the 1994 Act, which requires student clubs to receive equal and fair funding across the board, no matter what their political persuasion. Those Acts have been tested in the courts. The settled situation is that if a Conservative society in a university student union wishes to register and receive money, it must be given the same opportunity to do so as any other society. If a society is prevented from doing so, it is likely to win in the courts under current legislation.

The problem with including a tort that does not require an element of proven financial damage is an ambulance-chasing solicitors charter. That is the reality. Any single grievance that does not have to demonstrate a financial impediment can of course whip up cases. Most student unions, like my own, which broke even just this year—in fact, we had a slight deficit because we are still recovering from covid at the University of Bradford, and student union activities were reduced and are only just coming back to full force—do not have the finances to fight these things, so they will settle.

I am somewhat confused, because the Bill is not designed to limit freedom of speech; it is actually there to protect it and to ensure that people are not cancelled—there have been some very high-profile cases of that. It seems to me that the hon. Gentleman and some of his colleagues misunderstand what the Bill is about.

I sat on the Bill Committee and heard the evidence. Some, which I supported, talked about the unnecessary nature of the Bill, much said it would be unhelpful, and a lot said it would impose a chilling effect. I have no problem with a requirement for free speech. I have no problem with, for example, allowing the Office for Students to determine these matters. In fact, I would like an appeals process to be part of that, which would strengthen the provision by allowing people to seek resolution. Instead, the evidence we heard on the tort aspect was that it would be chilling. Rather than take the risk, people would not do anything.

We know that that has happened before. Many Acts have been passed in this place that have had a chilling effect, meaning that people do not take action. I want to see vibrant debate in my universities. That has always happened, such as when University of Sussex students in the 1970s blocked the American ambassador from coming on campus until he condemned the war in Vietnam. Those activities are also about free speech; students’ ability to express their heartfelt beliefs and desires must be allowed as well, but such activities would be prevented under the Bill.

That is why I am against the Government’s move to reject the Lords amendment, although I welcome some of the other moves, particularly on non-disclosure agreements, that we put in initially. I wish the Government would come together with us to remove the tort clauses and to provide other appeal processes, so that people can seek proper justice that is not just about financial recompense.

I refer hon. Members to my entry in the Register of Members’ Financial Interests in relation to the University of Bolton.

Learning is, through exploration, the discovery of truths. Of equal importance to the answers learning provides are the questions it poses. For the emergence of understanding is a process, not a moment—a journey, not a destination. Such is the delight of being inspired to know more that it provokes an open-mindedness to all kinds of possibilities.

That is the spirit that speakers across this House have enjoyed and recommended to us, and yet across universities that spirit is being frustrated by the kind of intolerance that, rather than opening minds, aims to close down debate. This Bill must provide a significant shield and a sword to those who are determined that universities remain places where ideas are discussed freely and can be tested through critical analysis.

W. B. Yeats said, “Education is not the filling of a pail, but the lighting of a fire.” We must not quench the fire of learning because we regard some ideas or views as contentious or controversial. Some may alarm. Some may cause offence. Yet without the ability to alarm and to disturb and to shock, there is no ability to inspire and to move and to enthral. They are two sides of the same coin.

The practitioners of intolerant identity politics have successfully cancelled a litany of students and academics who dared to espouse particular understandings of race, gender and sex—understandings, by the way, that are commonly held by our constituents—taken as read by most of the people we represent.

Those without wealth or influence to resist have too often been left at the mercy of the mob. It is a bitter irony that one academic who came forward to give evidence when we discussed the Bill in Committee, Kathleen Stock, was subsequently driven out of her job by a combination of militant students and weak-minded academics who refused to support her. She told us, along with my friend Arif Ahmed, that there is a climate of fear and a culture of silence, as academics self-censor for fear that what they say might leave them at the mercy of university authorities that use all kinds of techniques to silence them. So, this Bill is critical and the tort is critical to its effect.

Will the right hon. Gentleman give way?

I happily give way to the hon. Gentleman, who served on the Committee.

When we served on the Committee, did we not agree that one thing this Bill lacked was security of tenure for academics—very rare now—which would provide a bulwark against a chilling effect? Is that not something we could seek agreement on?

I agree with the hon. Gentleman on that, but, having declared my interest that I am employed at the University of Bolton, I had better not make too forceful a point about it.

Many more academics we do not know of will have faced similar pressures, in untold everyday stories of students and academics that, whether through fear or otherwise, go unreported or unresolved. That is why it is so important to reject the Lords amendment that would abolish the new statutory tort proposed in the Bill as it was originally drafted. It is disappointing that the academic establishment in the other place made a case against that—disappointing, but unsurprising, because of course these people look after their own. I am very pleased that, as my hon. Friend the Member for Devizes (Danny Kruger) said, the Minister has resisted those calls. She has shown determination, insight and, I must say, a degree of courage in doing so, because it is easy to roll over when the big beasts in the other place roar in defence of the academic establishment.

Will the right hon. Gentleman give way?

I have experience in universities, having been in education for 22 years and taught for three different universities. On the right hon. Gentleman’s example of climate change in the 1970s, is the difference not that the people who were debating it were not cancelled as people are being today?

We think that, too. That is the very purpose of the Bill—to open minds, to open debate, to have free speech. We believe in what the right hon. Gentleman is articulating, so perhaps he should vote with us tonight.

I thank all Members for their contributions and particularly eloquent representations. They have shown how important it is to the wellbeing of our society that we can agree to disagree, that we can debate controversial and unpopular ideas, and that we recognise that the only way to change people’s minds is to win arguments, not to silence them.

I have listened to the concerns about the tort. Those who speak about a chilling effect speak as if there is not already a chilling effect on campus. That is why we think it is such a vital legal backstop. The hon. Member for Warwick and Leamington (Matt Western) made the astonishing if not surprising claim that the Bill is not needed at all. He may wish to speak to his party colleague the noble Lord Collins of Highbury, who has said that, through the dialogue and discussions that he has had as the deputy Leader of the Opposition in the other place, he accepts the need for the Bill. I suggest that the hon. Gentleman has those discussions himself.

I am sure that Hansard will have recorded that when I used the word “otiose”, I was talking about the tort.

I think there was some significant questioning of the Bill, and I suggest that the hon. Gentleman goes to speak to Lord Collins of Highbury in the other place. I commend the Government’s position to the House.

Question put, That this House disagrees with Lords amendment 10.