Will the Lords block the boycott bill?

Or at least peers might attempt to take universities out of its scope

Michael Salmon is News Editor at Wonkhe

The Economic Activity of Public Bodies (Overseas Matters) Bill is primarily focused on thwarting public bodies such as councils from taking part in the Boycott, Divestment and Sanctions (BDS) campaign. But it has clear implications for universities, which it defines as public bodies or public authorities for its purposes, proposing that their investment and procurement decisions overseas would be subject to enforcement by the Office for Students (in the whole of the UK, not just England).

After passing through the Commons unamended – though with a small Conservative rebellion involving some fairly heavyweight MPs such as Foreign Affairs Committee chair Alicia Kearns – it’s now in the House of Lords.

Second reading passed without a vote on Tuesday evening, as is tradition in the upper chamber.

But peers are not impressed – there were few contributions in favour of the legislation as stands, with opposition ranging from tutting over poor drafting to fiery comparisons with opposition to South African apartheid in the 1980s (which spilled over into the ministerial summing up in fairly explosive fashion, at least by Lords standards).

On higher education, peers are worried about the Office for National Statistics’ ongoing review of whether higher education is part of the public sector, and seeking urgent reassurance. Levelling up minister Baroness Neville-Rolfe didn’t really answer this for the government (“ONS… is it ONS’ reclassification?”) and it looks set to be a big sticking point in committee.

Lord Johnson of Marylebone wondered whether non-university higher education institutions come in scope (it’s not very clear at the moment), and then asked the government to “reflect carefully” on whether the legislation should really apply to universities – and he wasn’t the only one. Former universities minister Lord Willetts repeated his oft-sounded warning:

Every time we add a new set of instructions as to what universities should do, we increase the risk that they are classified as part of the public sector and become subject to far heavier public sector control.

But he also made the point that the 2019 Conservative manifesto, which promised this bill, was much less ambitious in what the bill would achieve. The Salisbury convention (by which Lords will not block manifesto commitments) got a mention – peers seemed to be weighing up whether they could strike down or amend parts of the legislation that go beyond the manifesto.

Lord Willetts elsewhere took on the argument the government has previously advanced that the bill would help “community cohesion”:

That is a legitimate concern and of course it needs to be taken into account, but I have to say that if there had been an attempt to amend the Higher Education (Freedom of Speech) Bill so that freedom of speech was not permitted where it would damage community cohesion, the government rightly would have had nothing to do with such an argument as a constraint on activity and freedom of speech.

He also made a number of sensible and careful points on how the bill could mesh with Trusted Research commitments. Other peers were less kind – former University of Greenwich vice chancellor (and Labour peer) Baroness Blackstone said it was the worst bill she had ever seen.

The Liberal Democrats’ Lord Wallace of Saltaire mentioned that a recent Universities UK survey had not found any higher education institution that has imposed a boycott or sanctions related to a foreign state, and questioned the bill’s purpose (while also taking a sideswipe at OfS in light of the Industry and Regulators Committee report which he said was “highly critical of its capacities and ability to balance its different tasks,” suggesting that additional responsibilities for the regulator were in no-one’s best interests).

The government’s independent advisor on antisemitism Lord Mann flagged that what he saw as the most pernicious aspect of the BDS campaign – academic boycotts – would not be addressed by the bill, as it would have bearing on the decisions of universities (and students’ unions) as organisations. One peer also mentioned the fact that the Universities Superannuation Scheme is currently facing pressure from UCU to review its investments in Israel – this of course would also not be covered by the bill.

The question of how the bill is going to interact with free speech duties and academic freedom principles came up repeatedly. Lord Mann also made use of his floor time to return to bring the freedom of speech debate up to the present moment:

On the Higher Education (Freedom of Speech) Bill, I raised some questions about whether there could be unintended consequences by shifting more extreme protests from the public realm to the university realm, using the rationale that there is absolute freedom of speech in the university realm.

I am sad to report to the House that my questions and warnings have proved true. I speak to universities every week and to the Union of Jewish Students most days, and that is precisely what is happening in our country now: extremists are moving their protests off the public realm to the university realm, nearer Jewish students, using the excuse and rationale that free speech goes in any way in universities.

The boycott bill will head to committee (at a date not yet set) and will certainly see a raft of amendments contested. The wider free speech on campus questions, however, are going nowhere.

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