Higher Education (Freedom of Speech) Bill

Baroness Thornton Excerpts

Consideration of Commons amendments
Wednesday 10th May 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I seek some clarification of the new subsection (3)(b) proposed in Amendment 10F, which provides:

“A person may bring proceedings under subsection (1) only if … a decision has been made under that scheme as to the extent to which the complaint was justified”.


I seek clarification that an institution cannot delay the proceedings of decision-making indefinitely, because some institutions have quite a number of funds at their disposal and quite good administrative back-up, whereas an academic making a complaint and taking a tort action may be alone and without the same back-up. I hope that there is some provision for a time limit on an institution reaching a decision.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for his introduction of the government amendment in lieu and Amendment 10F.

When the Bill left this House with the amendments, led by the amendment tabled by the noble Lord, Lord Willetts, which was supported from these Benches, it was the Government’s own amendment at an earlier stage, aiming to mitigate the risk of legal action, and that civil proceedings should be the last resort, upon which we all agreed. Since then, the Government have amended the clause in question. The Minister explained why the Government have felt that it was necessary to do that. However, the amendment may create a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach, and it cannot possibly be the intention for this additional amendment, added in the Commons, to open doors to unintended consequences. I would like the Minister’s clarification on this because it seems that this amendment at best muddies the waters, and it might be dangerous. I would like his reassurance on that matter.

[Lord Grabiner (CB)]

My Lords, when this Bill left your Lordships’ House, it seemed that through the amendment tabled by the noble Lord, Lord Willetts, we had achieved a reasonable and workable compromise. Sensibly, the Government had accepted as axiomatic the principle that the person complaining that their freedom of speech had been unlawfully interfered with would first have to exhaust the regulatory complaints procedure before being permitted to commence civil court proceedings. The key amendment that we are now presented with will, I am afraid, blow away that compromise. These amendments will positively encourage civil court proceedings. For practical purposes they abandon the priority point, to the extent that the complaining party need not complete the regulatory process before commencing injunction proceedings. Indeed, the complainant would be entitled to ignore the regulator altogether and proceed directly to the court and seek an injunction.

I should make that criticism good by reference to the wording that has been presented to us. First, there is now an extended definition of “loss” which means loss of any kind, pecuniary or non-pecuniary. Through our previous debates, it has become obvious that a typical complainant would be hard pressed to show even nominal pecuniary loss resulting from a breach of the new duties imposed by the Bill. That is one of the reasons for the original objection to Clause 4 and why breaches of these duties should be dealt with by the Office for Students as the regulator and not by the courts.

The introduction of the concept of non-pecuniary loss suggests damages for emotional, mental or psychological distress. Again, however described, this is unlikely to produce significant damages figures, but express reference to it in the statute will be an encouragement to suitably motivated claimants to use the civil courts against universities, colleges and student unions. By itself, that would be tolerable, so long as the priority position were left in place.

Secondly, the troubling aspect of the amendments is in government Amendment 10F, to which reference has already been made, and in particular proposed subsection (5), which would displace the priority principle and expressly give the claimant the entitlement immediately to sue in court for an injunction. In my view, the claimant need not even bother to invoke the regulatory process. The claimant would be free to ignore the regulator and go straight to court. That is why I suggest that the sensible compromise previously achieved would be blown away if the Bill in this form became law.

For the record, I should make three further points. I will make them very briefly. First, our universities, colleges and student unions should not be subjected unnecessarily to the expense and unpleasant burden of court proceedings when we have an experienced statutory regulator in place. Secondly, many noble Lords—I am one of them—believe that ill-motivated troublemakers will be encouraged to invoke these provisions. We should not be encouraging divisive litigation or inappropriate use of the already clogged-up court lists.

Thirdly, the important purpose of the Bill is to encourage and improve the state of free speech in our universities and colleges. All sensible people support this excellent objective. That said, if the Bill in this form becomes law, universities, colleges and student unions would be well advised to make sure that no controversial speaker is ever invited to address the students: why would they take the risk? As a result, and ironically, freedom of speech will be undermined and not enhanced, and we will never be able to measure the extent of that damage.

I did not want my whinge about Clause 4 to be left stuck in my craw, but I also recognise that there is no appetite for more ping-pong on the Bill.