My Lords, this group of amendments relates to duties and powers to promote freedom of speech under the Bill. Amendment 31, tabled by my noble friend Lord Moylan, seeks to clarify the steps that a higher education provider or college would need to take in order to promote the importance of freedom of speech and academic freedom. This amendment would replace the duty to promote the importance of freedom of speech and academic freedom with a duty to have particular regard to certain matters, including the need to eliminate unlawful interference with freedom of speech and academic freedom and to promote and prioritise the particular importance of freedom of speech.
By replacing the duty as drafted, I suggest to my noble friend that this amendment would in fact weaken the duties under the Bill by replacing a duty to do something—the words, “must promote”—with a duty to “have particular regard”. Providers will already be required, under new Section A1, to take reasonably practicable steps to secure freedom of speech. In doing so, they will need to have particular regard to the importance of freedom of speech. As part of this, we would expect providers to consider many of the matters suggested by this amendment and do not consider it necessary to set these out in detail. Indeed, prescribing the matters to which providers must have regard in this way could have unintended consequences, and result in providers taking a less comprehensive and balanced approach to their duties overall.
My noble friend asked me why specifically I could object to his amendment. There is a good reason, as I have indicated, which is that the amendment would have the effect of removing the duty to promote the importance of freedom of speech and academic freedom. That is a new and important duty, created by the Bill, that will drive forward a culture where freedom of speech is fostered and celebrated and students, staff and visiting speakers feel confident to express their views freely.
Amendment 33 in the name of my noble friend Lord Willetts and the noble Lord, Lord Stevens, seeks to amend the duty to promote the importance of freedom of speech and academic freedom by adding a duty to have due regard to all the other relevant legal duties. We have already discussed the issue of the interaction of the Bill with other duties. The main duty in the Bill is to take reasonably practicable steps to secure freedom of speech within the law. That means that providers, colleges and student unions can
take account of all their legal duties on a case-by-case basis. So the duty does not override existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination nor, for providers, the public sector equality duty or the Prevent duty. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.
I agree that the University of Essex report showed that there were misunderstandings of how the Equality Act should be properly applied, but we hope and trust that the measures in the Bill will, as I said earlier in response to a point made by the noble Lord, Lord Collins, serve to minimise those misunderstandings.
As I have previously said, the duty is derived from the current legislation in the Education (No. 2) Act 1986, so it is not new. Providers have been balancing their legal duties for many years: in relation to unlawful discrimination and harassment under the Public Order Act 1986 for 35 years, in relation to the public sector equality duty since 2011, and in relation to the Prevent duty since 2015. However, the new duty to promote the importance of freedom of speech and academic freedom might mean that a provider speaks out publicly to defend the freedom of speech of a staff member in the face of calls for them to be removed for something they had said, or it might involve giving talks to staff and students on the importance of freedom of speech in democracies.
We come back to an objective that I have mentioned before, which is the need in some institutions for a change of culture. Noble Lords will appreciate that the duty to promote is a high-level duty designed to give rise over time to a change in culture on university campuses. It is not a duty to promote freedom of speech. Rather, it is a duty to promote the importance of freedom of speech. As such, I do not believe that it needs the additional “due regard” duty as proposed.
Amendments 54, 55 and 56 in the name of my noble friend Lord Willetts seek to require the Office for Students to consult on and publish guidance relating to the promotion of freedom of speech and academic freedom, and to require it to give advice on that in a timely manner. Clause 5 inserts new Section 69A into the Higher Education and Research Act 2017. This provides that the OfS may identify good practice and give advice to providers and colleges on the promotion of freedom of speech and academic freedom. This wording is entirely based on Section 35 of the 2017 Act, which provides that:
“The OfS may … identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers.”
Accordingly, the provision does not concern the new duty on providers and colleges to promote the importance of freedom and speech and academic freedom in new Section A3 that I have just described. Rather, it concerns the duties of the OfS and the advice that it can give to providers and colleges generally about how they can promote freedom of speech on campus.
I hope my noble friend Lord Willetts will be reassured to know that Section 75 of the 2017 Act, as amended by this Bill, will require the regulatory framework of
the OfS to include guidance for providers on the general ongoing registration conditions, which will now include specific registration conditions on free speech in accordance with Clause 6, as well as guidance for student unions on their freedom of speech duties. Therefore, it will be here that the OfS will set out guidance on the new duty under Section A3 to promote the importance of freedom of speech and academic freedom, which must be complied with under the registration conditions.
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Given that, I do not think that the changes proposed by my noble friend are needed as this is not about advice on compliance with the new duties imposed on providers and colleges. This is a general provision about good practice, and as such, it is not necessary to make it a requirement rather than leaving it to the discretion of the OfS. I hope that that explanation reassures my noble friend and noble Lords as to how the provisions on the promotion of freedom of speech, and of the importance of freedom of speech, will operate.