Higher Education (Freedom of Speech) Bill

Baroness Lawlor Excerpts

Consideration of Commons amendments
Wednesday 10th May 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, we return to consider the Higher Education (Freedom of Speech) Bill for what I hope will be the final time. I thank noble Lords once again for the insightful debates that we have had on this important Bill, which is designed to ensure that the higher education sector in England is protected from the chilling effects of cancel culture which have been taking hold on campuses and in other areas of our society.

As noble Lords will recall, the statutory tort has generated some animated debate in this House. I am glad that we have now all agreed that this crucial measure should remain part of the Bill, though the final wording remains for consideration. On 2 May, the other place accepted this House’s Amendments 10B, 10C and 10D, which noble Lords voted to include in the Bill on 21 March. Mirroring Amendment 10E and building on these amendments, the Government tabled further amendments which seek to satisfy both Houses as well as academics and advocates of free of speech. These are what are now before us to consider.

The proposed new subsection (2) deals with an issue that we have discussed in this House before, in response to an amendment tabled by the noble and learned Lord, Lord Etherton. I said on Report that loss

“is not limited to pecuniary loss and could include damage to reputation, for example”.—[Official Report, 7/12/22; col. 207]

This amendment simply makes this point clear in the Bill. Proposed new subsections (3) and (4) mirror this House’s Amendment 10E, and (5) adds a helpful nuance to our already agreed position, that civil proceedings should be a last resort once the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education have been exhausted.

Some Members of the other place expressed concern that the Bill, as returned to them from this House, would prevent individuals from seeking an injunction where swift action is required to rectify a breach of the specified freedom of speech duties. For example, if a student is expelled from their course by a higher education provider because of a freedom of speech issue, this amendment would mean that the court could make an order requiring the provider to let the student back on the course immediately, thereby avoiding the need for the individual to put their life on hold and delay pursuing their studies, which would otherwise ensue.

In a case such as this, a recommendation made by the OfS or the OIA may simply come too late to avoid such damage. We believe that such cases are likely to be rare. Seeking an injunction is financially costly. Injunctions are a discretionary remedy and the courts do not grant them easily. We are clear that the overwhelming majority of complaints that allege a breach of the freedom of speech duties will proceed, as has always been envisaged, via the schemes that are operated by the OfS and the OIA. I hope that noble Lords will therefore accept the amendments from the other place, so that this Bill can proceed to Royal Assent. I beg to move.

[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.