My Lords, turning first to Amendment 3, I think we can all agree that academic freedom and institutional autonomy are important considerations. I am sympathetic to the spirit behind the noble Lord’s amendment. The principle of institutional autonomy and academic freedom is already well entrenched in the Bill and in the existing legislation covering further education corporations. In practical terms, the principle is also very much reflected in how the Government support and work with the sector on a wide range of issues and activities.
Further education college corporations are charitable, statutory bodies under the Further and Higher Education Act 1992. Under the Act, colleges are conducted by
statutory corporations, which enjoy many freedoms and powers. For example, Ministers have no powers to issue directions in respect of the administration or management of the college, whether regarding employment matters or the content of courses, except in the very restricted circumstances in which the college is failing. As charities, colleges and their governing boards must also be independent from government. The changes introduced through the Education Act 2011 strengthened this independence, for example by removing the power of Ministers to make changes to the instrument of government and articles of a corporation, which was contained in the original 1992 legislation.
The Secretary of State’s powers are therefore extremely limited. As the principal regulator of college corporations, the Secretary of State has a duty to promote compliance with charity law. In clear cases of failure, the intervention powers under the 1992 Act allow the Secretary of State to remove or appoint members of, or issue directions to, the governing body of the institution. But those are powers of last resort, where it is not possible to address failure through other means and there remains a very strong public interest in doing so. In practice, they have never been used. Indeed, outside legislation, the way in which the Government work with the further education sector more generally demonstrates full respect for the principle of autonomy.
For example, the programme of local area reviews which will draw to a close soon is based on the principle that the governing bodies of colleges are the decision-makers when considering the future organisation of provision in their local areas. The Government have established the reviews to facilitate that decision-making, working in partnership with the sector, but have not sought to impose decisions. Similarly, although professional development activities for teaching staff are supported through government funding they are delivered through a sector-owned body, the Education and Training Foundation, reflecting the independent status of colleges and other providers. The legislative framework and the day-to-day relationship with the sector already reflect these principles and there is no need to legislate further. I urge the noble Lord to withdraw his amendment.
I move on to the second amendment in this group, Amendment 7. I thank noble Lords for raising the important issues of freedom of speech and unlawful speech in our further education system. I agree entirely that free speech within the law is a key principle of further education in the UK. We want students to be exposed in the course of their studies to a wide range of ideas and opinions, and to learn the skills to debate and challenge them effectively. There is an existing duty placed on further education providers to take reasonably practicable steps to secure freedom of speech within the law. That duty was introduced in the Education (No.2) Act 1986; it is taken seriously by FE providers and they have raised no issues or concerns with us in relation to its practice.
The requirement in this amendment would place an additional freedom of speech duty on providers so that they must “ensure” that staff, students and invited speakers are able to practise free speech on the premises of the providers, or in forums and events. I am sympathetic to the intention behind this amendment—championing
free speech must be central to our further education sector—but it is not clear what such an additional requirement would mean in practice, nor how we would expect providers to change their policies and practices to meet the new standard. I fear the new threshold in this amendment unreasonably and unnecessarily imposes an additional and disproportionate burden on providers, in particular, the duty to “ensure” freedom of speech without any caveats. To move away from a standard of taking reasonably practicable measures may well require FE providers to address matters that are simply outside their control. We should be wary of creating cases where a duty to ensure free speech could come into conflict with other, important considerations, such as the security of attendees at a particular event.
6.45 pm
Further education colleges are places where individuals must feel able to express and debate their opinions, but this freedom is not unconstrained. There is no place whatever for hate speech, discrimination, intimidation or harassment against anyone. Equally, there is no room for anyone who is trying to incite violence or support terrorism. This is why there is a wide range of existing legislation on unlawful speech, with which FE staff, students and visiting speakers must comply. This includes: legislation which makes certain forms of behaviour and hate speech a criminal offence; laws against encouraging terrorism and inviting support for a proscribed terrorist organisation; and the Prevent duty, which requires providers to consider the impact of external speakers. All these laws are supported by effective mechanisms for reporting hate speech, whether through a provider’s own procedures, the police or organisations such as the Community Security Trust or the excellent charity, Tell MAMA. Unlawful speech can undermine the safety and welfare of staff and students and erode the ethos and cohesion of the further education provider. It is absolutely right that we highlight the importance of ensuring that it cannot and should not take place.
However, the sector has not told us that preventing unlawful speech is a problem. Introducing a new standard would risk unnecessary confusion, and could create caution and risk-aversion which would stifle free speech. Further education providers will continue to be subject to the existing freedom of speech duty. On unlawful speech, we can best protect staff and students by working with them to implement existing legislation rather than by introducing additional legislation. I hope the noble Lord will therefore feel able to withdraw this amendment.