Amendment 48

Higher Education (Freedom of Speech) Bill - Committee (3rd Day) – in the House of Lords at 3:31 pm on 14 November 2022.

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Lord Etherton:

Moved by Lord Etherton

48: Clause 4, page 6, line 19, after “person” insert “who is within one of the categories specified in section A1(2) and has suffered loss caused by a breach of the duties in (a), (b) or (c) in this section”Member’s explanatory statementThis amendment narrows and provides certainty as to those entitled to enforce the statutory tort by limiting enforcement to a person for whose benefit there is a duty to secure freedom of speech and, consistent with the Explanatory Notes, only if that person has suffered loss caused by breach of the duty.

Photo of Lord Etherton Lord Etherton Crossbench

I declare my interest as a visiting professor at Birkbeck, University of London. My amendment is not directed at anything other than technical—but important—deficiencies in Clause 4. I am concerned about the appropriateness of this provision as it stands. I am sure that many here will say that it is neither appropriate nor necessary for Clause 4 to be there at all, but that is not my purpose: my purpose is to make it work if it stays. The Minister will be aware of my concerns about this provision.

There are two critical deficiencies at the moment. The Explanatory Notes state:

“Clause 4 … creates a new statutory tort”.

My first question is whether damage or loss is necessary to make the statutory tort enforceable. Briefly, some torts, such as negligence or nuisance, require loss or damage to give rise to an enforceable legal right, but others, such as trespass, are actionable without proof of loss or damage. The clause, as it stands, does not indicate whether loss or damage is required for anybody to enforce this new right. The Explanatory Notes indicate in two paragraphs that the intention is that there should be “compensation for loss”. If that is the intention, that must be included somewhere in the definition of the tort itself to make it viable. I should add that, if loss or damage are not critical—if it is actionable, as it were, without loss or damage—it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.

The second deficiency is that there is no description of the category of persons entitled to enforce this civil wrong. It is not limited in any way to any particular group of people, but I assume that the intention is that the category of people entitled to enforce the proposed new statutory tort are those to whom the providers of higher of education owe

“a duty to secure freedom of speech”.

Therefore, that point is also included in my amendment.

I finish simply by saying that if the clause and the new tort are to remain, it is critical that the latter becomes a recognisable and legally enforceable tort with those additions.

Photo of Lord Grabiner Lord Grabiner Crossbench

My Lords, the premise of the amendment moved by the noble and learned Lord, Lord Etherton, is a presupposition that the clause remains. I will be a little more ambitious by arguing that the provision is in fact otiose and we would do well to get rid of it.

I support the view that the clause should be deleted—as I think the Minister is aware—because three points seem to militate against the introduction of this brand new civil cause of action. First, it should not be assumed that the ability to invoke the civil court process will operate as some sort of universal panacea which will resolve this problem at a stroke. Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension. Speaking from my narrow professional perspective, the only guaranteed positive outcome is that the financial condition of both sides of the legal profession will be enhanced if Clause 4 is enacted.

Secondly, in this case, the Office for Students, and the OIA—as regulators with suitable powers and, as should be the case, an in-depth understanding of the higher education world—would be far better placed than a judge of the High Court to deal with the matters dealt with by the Bill. In principle, it should not be necessary to have a regulatory structure concurrently in place with a specially devised civil court process. The scope for confusion, and what I call trouble-making, is obvious.

Against that, I believe it is suggested that Clause 4 is necessary as some sort of backstop to the regulatory regime. The unsatisfactory implication from the backstop argument is that the regulators may not be up to snuff—for example, because they lack funding, expertise or the necessary powers.

The backstop argument is unprincipled and illogical. If, for whatever reason, the regulators are not good enough, that should be the focus of repair and improvement. We should not be in the business of bolstering the deficiencies of the regulatory structure with the court process contemplated by Clause 4.

In this connection, the Bill wholly fails to address the relationship between the regulatory regime and the new proposed civil action. Should one be exhausted before the other? If the complainant fails before one, should he, she or it be entitled to have a second bite of the cherry? Suppose the complainant succeeds before one, should the loser be entitled to seek declaratory relief from the other, to the effect that the first decision was wrong? The scope for confusion and what I call mischief-making is significant. My sense is that these potential complications have not been thought through or, if they have been, they have not been addressed in the drafting of the Bill.

My third point is that there will inevitably be pressure groups and mischief-makers who will wish to use the court process publicly to embarrass universities, colleges and student unions to advance their own branded ideology or view of the world. The potential for this sort of behaviour, particularly in this context, is boundless, I am afraid.

On Second Reading, in the Minister’s very clear explanation of the structure and content of the Bill and, in particular, in closing, he made three points in support of, or by way of justification for, Clause 4, and I should like to address these points. I would not and could not put words into the Minister’s mouth, but his position can fairly be summarised as acknowledging the objections to Clause 4 as seriously held opinions but that, in his view, the concerns expressed were, on analysis, and for the three reasons he gave, more imagined than real. I cite Hansard of 28 June, col. 633.

The Minister said, first, that it would be very difficult for a claimant, especially a vexatious one, to establish the requisite duty of care without which the statutory duty could not be said to be breached and the claim would swiftly be dismissed. Secondly, he said that it would be necessary for the claimant to prove what he called “genuine and material loss”, by which I assume he meant financial loss. The Minister said that this would be a tough hurdle, which few claimants could clear. Thirdly, he said the claimant would find civil proceedings expensive, especially if he lost and ended up having to pay his own and a significant element of the fees incurred by the university, college or student union, as the case may be.

I should like to deal with each of those points because, in my view, none of them withstands detailed analysis. First, the persons to whom the proposed duties would be owed are identified in the Bill, in new Section A1(2) in Clause 1, as staff, members, students and visiting speakers, and in new Section A5(2) in Clause 3, as

“members of the students’ union … students … staff of the students’ union … staff and members of the provider and … visiting speakers”.

Potentially that includes a lot of people, as well as organisations with which they may be associated. It is also the case that, as has often been said by judges at the highest level, the categories of duty are never closed. The common law develops piecemeal through changing circumstances; it is a living thing, and there is every reason to suppose that, ultimately, these duties will be held to be owed to persons or organisations whose behaviours and beliefs will or may be regarded as lawful but nevertheless deeply offensive to many listeners or observers. If the claimant presents an arguable case that he, she or it is owed a duty of care, the claim will be permitted to proceed; it will not be struck out at the preliminary stage.

The second point, to the effect that the claimant would have to show “genuine and material loss” needs careful scrutiny. The impression given by those words is that it means significant financial loss—that is, in order to succeed, the Clause 4 claimant would have to prove that he had suffered a real level of financial loss as a consequence of the breach of duty. I would be most grateful if the Minister would explain to us what they mean, if not that type of loss.

Before getting into the meaning of genuine and material loss, there is an important anterior question. Most torts in our law are not made out without proof of some damage but some, such as nuisance, trespass to land and libel, are actionable per se. The noble and learned Lord, Lord Etherton, made some reference to this a few moments ago, which is to say: without the need to allege or prove any damage. Clause 4 is interesting because it specifically makes no mention of damages or financial compensation for the claimant. I think that is what the noble and learned Lord’s amendment, or part of it, is directed at.

By contrast, in the financial services legislation with which I am familiar, the Financial Services and Markets Act 2000, Section 150(1) of that Act specifically provided that the breach will be

“actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty”.

That provision was repealed by the Financial Services Act 2012 and replaced with a new Section 138D, which is in very similar language. In that example, the statutory tort is created but a specific right to claim compensation is expressly provided for. However, that is not found in this legislation, which is what drives me to the conclusion, or at least the submission, that this is a statutory tort, which would be actionable without proof of damage. In my view, that is at least a very serious argument that Clause 4 creates a tort which is actionable per se. There would be no need for the claimant to prove any damage at all which, with respect, would significantly undermine if not destroy the second point of justification suggested by the Minister.

When your Lordships have regard to the context of the Bill, freedom of speech, you would not ordinarily expect the claimant to have suffered any financial loss at all—for example, compared with the damage suffered by a claimant in a personal injury case or somebody who is the victim of a fraudulent misrepresentation. That rather supports the proposition that it will not be necessary to prove damage to make a Clause 4 claim. If that were necessary, the Bill could and would have said so in terms. This makes it much easier for the provision to be deployed by unmeritorious claimants.

In my view, the “genuine and material loss” formula involves a misunderstanding of the true nature of this Bill. In a typical case, Clause 4 is not about compensating a claimant who has suffered monetary loss; it is about protecting a claimant from being deprived of an opportunity freely to express lawful opinions. If made out, such claims will rarely, if ever, result in substantial damages or compensation. How do you value these matters in monetary terms? It is more likely that the claimant will seek a declaration from the court that the university, college or student union has breached the duty. That might also be coupled with an injunction application to prohibit similar future behaviour. In short, I do not believe that the second point mentioned by the Minister arises in the context of this Bill and Clause 4.

The Minister’s third point is to the effect that the costs associated with bringing a claim under Clause 4 would be prohibitive and dissuade vexatious claimants. I do not accept that argument, with respect. First, there are some very well-heeled trouble-makers for whom the costs issue would be of no concern at all. Secondly, there are also trouble-makers with no financial resources beyond the ability to finance the fairly nominal cost of issuing a claim form. They would be entitled to represent themselves, or by having a friend do so, and if they were ultimately to lose would not in any event be able to meet any costs order made against them. There are potential claimants who well understand these things. In short, I am not persuaded that there is any real justification for Clause 4.

I was going to sit down at this stage, no doubt to the relief of all those listening, but I have been in email contact for part of the day with the noble and learned Lord, Lord Hope. As of midday today, or a bit after, he was unfortunately still sitting on an aeroplane in Edinburgh Airport, waiting for the fog to clear in London so that he could come and participate in this debate. He has asked me to explain his position. The points that I am now going to make—I promise that I will be as brief as possible—are all down to the noble and learned Lord, Lord Hope, but what they actually do is to devastate Clause 4, as you would expect.

The noble and learned Lord asks me to explain his point, which is that he takes the view that Clause 4 is otiose because you do not need the statute to tell you that you have a right of access to the court. The critical point to understand is that this Bill introduces three duties. It imposes duties upon colleges and universities, upon student unions and so on. Having created the duties, the point from the noble and learned Lord, Lord Hope, as I understand it, is that you do not need to be told in a statute that you are able to sue for breach of that duty. He therefore says that Clause 4 is completely unnecessary.

The noble and learned Lord prays in aid, first, the provisions of Article 6 of the European Convention on Human Rights, which says pretty much that about access to the courts. He also says that, if you need a statutory authority for that proposition, it is that you do not normally find in a statute an expression of the entitlement to bring an action; on the contrary, what you normally find is that, if your cause of action or your access to the courts is to be restricted, that is set out in the statute. He gives the example of Section 47 of the Health and Safety at Work etc. Act 1974. The implication is that, absent a restriction in the legislation, you do not need anything in the legislation to give you that ability to access the court, because it is already there. There is a bootstraps element to it because of the duties that will be imposed if this Bill becomes law. It would give an individual the cause of action and the ability to come to the court without more.

For what it is worth, I believe that there is obvious force in that argument. I nevertheless still wish to see Clause 4 deleted. Let me explain why. It would leave the possibility of a common law cause of action. The duties would be there and somebody outside could come along and bring a claim for breach of that duty without the need to point to a provision in the Bill—or, by then, the statute. It would not be in the Bill, so it would be less prominent. For that reason alone, I would be in favour of getting rid of Clause 4, even apart from the separate point that the noble and learned Lord, Lord Hope, makes, which is that it is otiose.

Another problem comes out of this discussion. It takes us back to the position of the regulators. Should the Office for Students be given powers to enforce the duties? This issue is not currently addressed, which gives rise to some serious problems. If a private claimant is not going to have the ability to bring a claim for damages—which is my preferred position—then somebody has to be responsible for ensuring that these duties are properly performed. The obvious person to do that is the regulator, but at the moment there is a huge hole in the Bill because that question is not addressed. I am sorry for having taken so much of your Lordships’ time.

Photo of Lord Sandhurst Lord Sandhurst Conservative 3:45, 14 November 2022

My Lords, I speak to Amendments 49, 50 and 52, which are premised upon Clause 4 surviving—I start from there.

Amendment 49 would add some additional subsections to Clause 4. The effect of these would be to add employment tribunals to the definition of civil courts that can hear disputed issues. Proposed new subsection (5) would provide that, in addition, where there is a dismissal of an academic who is held to have been dismissed for exercising academic freedom, that will be automatically unfair, with the usual consequences.

Amendment 50 would introduce a procedure for staying claims so that, when one is brought, either party can apply for it to be stayed—particularly, one might think that the education provider would apply for it to be stayed—to go to mediation by the regulator in the way that employment tribunal proceedings are stayed to be mediated by ACAS.

Employment tribunals have these advantages: they are more informal, they are quicker and they are more accessible to those who wish to pursue a claim. Importantly, they operate within strict time limits. The sort of claims we are looking at here are claims for unfair dismissal or similar. In any event, they need disposing of without long delay; we do not want a six-year period in which someone can bring one of these claims. In the employment tribunal, by way of example, unfair dismissal claims must be brought within three months, less one day, of the effective date of termination. In a contract claim, it is three months from the date of breach. Although it is not in my amendment, it would follow, I would hope, that if the principle were adopted, the employment tribunal rules would be amended to ensure that similar provisions applied to such claims. In contrast, as I have already observed, a claim in tort has a six-year life before it is timed out.

The provision in Amendment 50 mirrors ACAS early conciliation and is similar also to provisions in Section 148 of the Pension Schemes Act 1993, under which either party can seek a stay to the Pensions Ombudsman. Whichever model we take—I leave it to the Government to consider the precise wording, but the idea is clear—there should be a reference to the Office for Students, so that the matter has every chance of being disposed of and resolved there by the regulator.

In short, these proposals would encourage settlement. They address many of the arguments raised against the statutory tort. It would certainly be simpler and quicker if it was dealt with in the employment tribunal, and there would therefore be the great benefit of dispatch. There is every hope that, using this combined process, a stay would be ordered and the case resolved swiftly, cheaply and sensibly. In other words, it would bring accessibility, speed and efficiency.

Finally, the introduction of proposed new subsection (5), in addition to the statutory tort, as I explained, would make it plain that where a member of academic staff has been dismissed and the tribunal hearing it finds that this has been for rightfully exercising his or her academic freedom, it should be deemed to be automatically unfair.

Amendment 52 would make a series of technical amendments to ensure that the rights apply effectively to the range of persons whom it is intended may avail themselves of the tort. It therefore removes the requirement for a two-year qualifying period for which employees would normally have to qualify to claim for unfair dismissal. It removes any cap on compensation and it provides for access to interim relief, in special cases, for re-engagement pending a final hearing—this is for dismissal cases. This would give an academic, or someone in an academic post who has not been there for two years but has been dismissed for exercising freedom, equivalent protection to that given to whistleblowers.

I conclude by saying that these amendments would provide strong protection of the sort I believe the Government are really aiming at. It would marry the OfS scheme to that which already exists in ordinary employment tribunal cases and would enable matters to be disposed of efficiently and economically.

Photo of Lord Pannick Lord Pannick Crossbench 4:00, 14 November 2022

My Lords, I agree with the powerful speech of the noble Lord, Lord Grabiner, with the possible exception of his surprising suggestion that the introduction of lawyers is generally a mischief.

I will add a few words on why Clause 4, in my view, should be removed. The duties under the legislation—it is a very sensitive area—should be regulated and enforced by a statutory regulator. The regulator should have sufficient power to resolve disputes and to give a declaration or a statement which will set standards which will then inform all relevant persons of what the requirements are in this context. That will be speedier than civil litigation; it will be less expensive than civil litigation; and it is highly likely to produce a more acceptable result than civil litigation. Despite their many skills, His Majesty’s judiciary is not the best body to determine these sensitive issues. A regulator will have far greater expertise and is far more likely to produce an acceptable result.

I am not persuaded by the views attributed by the noble Lord, Lord Grabiner, to the noble and learned Lord, Lord Hope, as to why Clause 4 is otiose because it will be the law in any event. I have two answers to the concerns of the noble and learned Lord, Lord Hope. The first is that Article 6 of the human rights convention would be satisfied by the ability of someone dissatisfied with a regulator’s decision to bring a judicial review. That would meet Article 6 concerns. Of course, that would have very considerable controls: any person seeking judicial review has to get the permission of the court to bring the claim. They have to bring the claim within a very short period of time—three months, unless there are exceptional circumstances—and judicial review would be available.

The other point that I understand the noble and learned Lord, Lord Hope, to be concerned about is that there is a right to a civil claim whether or not a statute says so. My understanding is that when the court assesses whether a statute confers a right to damages for a breach of the statutory duty, the court asks itself the questions: “What did Parliament intend?” and “Did it intend in this statute, in all the circumstances, to confer a right to damages?” If Parliament were to remove Clause 4 and there were to be an effective regulator with a right to bring judicial review, I would have thought that more than sufficient to rebut the suggestion that you can go to court and seek damages in any event.

Photo of Lord Willetts Lord Willetts Conservative

My Lords, I hesitate to intervene in this debate as I am not a lawyer. We have heard four very powerful interventions from Members of this House with formidable legal expertise. Already, Clause 4 is looking rather vulnerable in light of the arguments that they have deployed so powerfully with their legal expertise. The noble Lord, Lord Stevens, who sadly cannot be with us today, and other noble Members of this House—including me—signalled our intention to oppose the question that Clause 4 stand part of the Bill. Our doubts are reinforced by the formidable interventions we have already heard.

Perhaps I could add, as someone with an interest in public policy in this area, an explanation of where we are coming from. To be fair to the Minister, the case for this Bill is that it backs up the general right to freedom of speech with an attempt to provide more enforceable rights and compensations. The question is whether this provision of a statutory entitlement to tort helps serve that cause at all or whether the Government can achieve their objectives without this new route of civil litigation. The risks are considerable, including, clearly, of promoting vexatious litigation.

There is another significant risk that has not been mentioned so far. For those of us who want to see free and lively exchange of conflicting ideas in higher education—I hope we all do, on all sides of the House—there is a danger that that this type of provision has an opposite effect from the one intended, in that people who are thinking of potentially inviting speakers or organising events at their university are inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action; in other words, this could have exactly the opposite effect to the one intended.

I hope that the Minister will also be able to explain to the House why he does not believe that the current arrangements and other arrangements set out in the Bill will not themselves tackle the problem that he is concerned about. Will he accept that with the Office of the Independent Adjudicator there is already a clear process whereby any student who has a concern about the way their university is functioning, including potentially suppressing their freedom of speech, has a right to go to the Office of the Independent Adjudicator, and, beyond that, that ultimately those decisions are of course justiciable? Does the Minister also accept the point that he himself made in earlier debates on this legislation, that there is a framework of employment law which provides protections for academic staff? Indeed, ironically, especially given the preoccupations of my side of this House with a liberal and lightly regulated labour market, one of the best protections we seem to have from the worst of American cancel culture is precisely that we have a stronger framework of employment rights in this area; they could be extended, and we have heard interesting suggestions on that.

If it is not the OIA or employment law, there is indeed the Office for Students. The Government clearly intend that the Office for Students should have new powers to investigate potential infringement of people’s rights to freedom of speech. Often, when we have been confronting other public ills for which we are trying to find a solution, we have turned to an effective regulator. We have already heard powerful interventions this afternoon about the need for an effective regulator in this space. When we have a regulator in place whose powers can be extended in the Bill and, as we have heard so powerfully this afternoon, very carefully defined and set out with greater rigour than we have had so far, it seems odd and completely unnecessary that we feel the need in parallel to create this new tort route as well despite that route being available.

Finally, I return to the dangers in this approach. We had the wonderful observation from the noble Lord, Lord Grabiner, that perhaps lawyers on all sides of the case would find that at least their income rose, and I guess that you can imagine a well-funded litigant and a well-funded university. However, students and student unions are not well funded. There would be a real risk for student unions, which have themselves faced increased legal responsibilities under this provision and would not have the resource to engage in defending themselves against litigation. They are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing. For the threat and shadow of potential litigation which could bankrupt their student union to hang over them is not a service to the cause of freedom of speech in our universities.

Photo of Lord Blunkett Lord Blunkett Labour

My Lords, I declare my registered interest in the universities sector. Like the noble Lord, Lord Willetts, I am not a lawyer, but I often find myself—this is an embarrassment for him—agreeing with every word he says. I commend the forensic contributions made by those who do have legal expertise, including my friend, as I think I can describe him, the noble Lord, Lord Grabiner.

We should take a step back and ask what we think we are doing with this legislation. Thank God we are not America. Thank God that, normally, we can sort things out without recourse to the law or to a regulator. Normally we can apply common sense, but let me clarify a case where common sense does not apply.

Let us call someone Kathleen. She must put up with the totally unacceptable behaviour of those extraneous to a university and of some colleagues inside it. She is not dismissed but is put in a position surely intolerable to all right-thinking people, except those who are fanatics for a particular cause and acclaim it as being all about equality and justice, only then to deliver the exact opposite. In this case, would she be entitled to claim constructive dismissal? If she would, there is a remedy already in the system. I take the point about the amendments to do with the employment tribunal system: you cannot bring a case if you have not been employed for two years. Let us say, however, that Kathleen has been employed for 16 or 20 years. Would she succeed in a claim for constructive dismissal in these circumstances? If she would, there is no cause for increased nightmarish leviathan legal structures. If she would not, this clause and the Bill do not assist her.

We have the OIA and the Office for Students. Now, under civil law, we want this engagement of tort to deliver something that either can be delivered under existing legal structures, or cannot be and which the Bill does not deal with either. It is a nonsense. The whole Bill is a nonsense. There are other ways of going about this in a civilised democratic society, for people to stand up to those who intimidate or to what might be described as cancel culture. It is time for people with a commitment to democracy and freedom to do that, rather than rely on regulators or the law.

I speak from experience. When, as Secretary of State for Education and Employment, I introduced the first tranche of fees in higher education, I was driven out of university premises. We just met outside them. We continued to have those meetings and that dialogue, irrespective of those trying to shut down free speech. Therefore, I have had a bit of it, though nothing like the example of someone we might call Kathleen, which sees people’s lives destroyed. We need a society that stands up for what is right and not a Bill that will cause even more confusion, difficulty and regulatory nightmares. On Report, we should eliminate this clause—and, in the end, we should eliminate the Bill.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench

My Lords, I strongly sympathise with the Government’s intention in pressing Clause 4, which is precisely to protect people such as Kathleen Stock. That is its purpose but it goes about it in the wrong way. Speaking as a former academic administrator, I see two particular problems, both of which have been alluded to briefly in this debate.

The first is vexatious litigation. Whenever a free speech row arises in a university, pressure groups are not slow to get involved. Some come from a standpoint of complete integrity and their interventions are helpful. Others are more politically motivated and, as I have seen frequently, in the fight to cause mischief. Some of these pressure groups are very well funded. Some are religious organisations, some political organisations. I fear that one result of this clause, were the Bill to become law, would be to place a significant burden on universities in fighting off vexatious claims. That is highly undesirable.

This leads to the second real problem with the clause. In reality, far from encouraging free speech, which I am certain is its intention, it will have the opposite effect, as the noble Lord, Lord Willetts, said. Universities, unions and university societies will fear the heavy hand of litigation and the effect will be a chilling one. Universities will be less likely to host controversial, vibrant events if a tort of this sort is pressed by this Parliament, than they would be if no such action is taken. I strongly oppose this clause for those two reasons—and others, but for those two in particular: vexatious litigation and the clause’s chilling effect on vibrant debate in our universities.

Photo of Lord Cormack Lord Cormack Conservative 4:15, 14 November 2022

My Lords, I shall speak briefly in following the noble Lord, Lord Macdonald of River Glaven. I very much agree with what he and others have said. We have heard a great deal of common sense. I am sorry I was not able to take part in the earlier Committee debates in the Moses Room, but I was taking part in the Northern Ireland Protocol Bill, which was going on at the same time in the Chamber. I spoke at Second Reading, however, so I hope your Lordships do not mind my speaking now.

A very wise man once said to me, shortly after I was elected to the other place in 1970, “The first thing you should always ask yourself, when the Government of the day present legislation, is, ‘Is it necessary?’ Look at the statute books and see whether there is another way of dealing with the matter, rather than cluttering up those statute books with further unnecessary legislation.”

Literally thousands of pieces of legislation went through Parliament during the long, illustrious reign of Her late Majesty Queen Elizabeth. Many have never been used and others were indeed otiose. We have had a master class this afternoon from the noble Lord, Lord Grabiner. He must not apologise for speaking at some length; it was a treat to hear him and he said some extremely wise things. Just because there is a problem with free speech—and there is—the answer is not necessarily new legislation. I believe we should look at this extremely carefully, as we conclude Committee and move towards Report.

We want a slimmed-down, not fattened-up, statute book. I very much agree not only with what the noble Lord, Lord Grabiner, and my noble friend Lord Willetts said about Clause 4, but with the noble Lord, Lord Blunkett, in questioning the need for this. If the Bill is to go through, it must certainly be a slimmed-down version.

Photo of Lord Johnson of Marylebone Lord Johnson of Marylebone Minister of State (Department for Education) (Universities and Science) (Joint with the Department for Business, Energy and Industrial Strategy), The Minister of State, Department for Business, Energy and Industrial Strategy

My Lords, I rise to support my noble friend Lord Willetts, who seeks to prevent the creation of a new statutory tort. We have heard a couple of criticisms of the tort that are a little inconsistent. We heard that it will, on the one hand, lead to a flood of vexatious claims that will bog up our legal system and be very costly for our universities; and, on the other, that it is otiose, because the right for people to make claims to the courts already exists. It surely cannot be both at once.

My objection to Clause 4 is that I think it will undermine the regulator, the Office for Students. I speak not as a lawyer or an expert jurist, so I enter into this terrain with great trepidation. From a very practical point of view, my concern is for the work of the director for free speech and the authority of the Office for Students if we put this new statutory tort into law.

Having been involved in helping to set up the Office for Students through the Higher Education and Research Act with my noble friend Lord Younger, I am acutely aware that we have already created a very powerful regulator. The reporting structure that this Bill creates around the director for freedom of speech is none the less extremely useful. That is why I support this aspect of the Bill, which creates this new position in the leadership team of the Office for Students.

However, once the director for freedom of speech’s position is created, his or her position will be very strong and he or she will have sufficient powers to do the job that we expect him or her to do in promoting freedom of speech in our system. That is because the director for freedom of speech will be able to impose conditions of registration on any provider that falls short of the enhanced duties created by this Bill.

These conditions of registration are an extremely powerful regulatory tool, because they consist of far more than just the nuclear option that HEFCE used to have, which was just to withhold funding from a provider. The Office for Students has a very subtle suite of regulatory tools at its disposal. They run a full range from simply seeking an action plan from a university all the way through to imposing fines on an institution if it does not deliver on the action plan it has agreed with the director for freedom of speech. They do not need to consist simply of suspending a provider from the register and therefore effectively dooming it to failure, or taking away its university title. Those are nuclear options that no regulator really has any credibility in threatening, but the director for freedom of speech will have many other more useful tools at his or her disposal.

A statutory tort on the statute book will not help the regulator in any way at all; it already has the tools it needs. I strongly support my noble friend Lord Willetts. I hope the Government will listen to the debate and the excellent interventions that we have heard this afternoon and accept Clause 4’s removal from the Bill.

Photo of Lord Triesman Lord Triesman Labour

My Lords, it is a pleasure to follow the noble Lord, Lord Johnson. Like so many other people in the debate, I strongly agree with the comments made, from the speech by the noble Lord, Lord Grabiner, onwards. I also do not believe that this clause should remain. I do not believe it will do the job it is supposed to, and it will almost inevitably lead to the chilling effect that the noble Lord, Lord Willetts, and others have described.

My noble friend Lord Blunkett asked why the not entirely fictitious person Kathleen could not pursue an action for unfair dismissal because she was compelled into a position that was intolerable. I believe that there was a time when she would have been advised to do that, would probably have done so, and could have counted on the support of her trade union in pursuing that course of action—I can say this directly, as my interest has been declared any number of times. Of course, she found that she could not count on the support of her trade union. I submit to your Lordships that one of the reasons she could not now count on its support is precisely the reason that my noble friend described. If you go back seven, eight, certainly 10 years, the battle that would have taken place in that union to make sure that someone’s employment rights had been sustained without having to resort to any other regulator or court would have been absolute. It would have been the determined position of that union. Some may say that if that would no longer happen, maybe we need something else.

I submit that the “something else” we need is certainly not Clause 4 and this tort. There are those who might say that they are not so concerned about the chilling effect because they do not believe that enough of these things will happen. I say to your Lordships’ Committee that if it wanted to hand-pick a group of its fellow citizens who would argue in the most tortured way about absolutely anything, it should go to one of our universities. There they are: serried ranks of people whose day-by-day enjoyment is to have furious arguments about matters of little consequence. [Interruption.] I have been one for many years.

I will tell the noble Baroness, Lady Smith, that at Cambridge University, after the faculty of economics was redecorated, I was inveigled into taking part in a debate as to the order in which the portraits of its Nobel prize winners should be rehung and whether it should be Marshall or Keynes in the pre-eminent position. I left that debate after eight hours. No one was an inch further down the line of resolving it and, to my knowledge, the portraits have never been hung, because 20 years later no one is any further down the path of resolving it. I hate to say this: the only place where I have seen disputes followed with the same tenacious interest and complete unwillingness to give an inch is in my synagogue, but that is because it largely comprises lawyers. I do not make this point to be frivolous or humorous. The truth is that this is a most vexatious and disputatious group of people. They are employed to have arguments with each other; it reaches into every corner of their lives. If we think that they are unlikely to do so in these circumstances, we mislead ourselves completely.

Some people will be very well backed in pursuing this course of action. I think the noble Lord, Lord Willetts, made the point that some will be at a great disadvantage financially. The student unions that we are talking about are usually run by a small group of young people with no experience whatever of the law. Generally speaking, they are unable to exert any control over all the clubs that form the diaspora of their organisation—the Minister made that point. They will be put in a position that they cannot afford or control, and to which there will be no satisfactory long-term resolution.

All this brings me to say that the points that have been made, including by the noble Lord, Lord Johnson, about having a regulator that can manage these things, and build on knowledge of how to manage them, is a route to a sensible solution. The rest of it—and I apologise if this is thought to be offensive; I do not mean it to be—is completely fanciful, and anybody who has spent more than a few weeks working in a university will know it.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, I have a huge amount of sympathy with the fears about the chilling effect of Clause 4 and the points that the noble Lord, Lord Willetts, started off making. Basically, I am torn on Clause 4; I do not quite know where to go.

A number of people have discussed the potential of vexatious litigation. I think that is rather cynical. We keep hearing about all these bad-faith players. I am simply worried about litigiousness full stop, even by good-faith players. We know that a dependence on law courts to resolve problems can tangle us up and subsume the matter of fighting for freedom and free speech in legalese, lawyers and so forth, even if done with the best of intentions.

In other words, I do not want us to abandon what we all started off agreeing, which was that this Bill should not compensate for a need for a culture change in relation to arguing for the importance of academic freedom. It should not be seen as a replacement for that. I definitely do not want the law courts to get in the way, because they can kill off any possibility of that culture of the spirit of freedom being drowned out. That is one side of it.

I was reminded by the excellent speech of the noble Lord, Lord Triesman, and in particular by his point that trade unions have changed, that there is a real problem to address. I slightly disagreed with his description of student unions; they may have been like that in the past, but they are much more professionalised, litigious, disputatious and often anti-free speech than they ever were in the past. Nonetheless, things have changed, so my concern is: if we remove Clause 4, does this Bill become toothless? Is it the case that we are abandoning all the commitments of the Bill to having no implications or no outcome whatever? I just cannot decide which is the way to sell it, because I do not want this Bill to have no impact. Professor Kathleen Stock has been mentioned, and the truth is that she wrote an article supporting this Bill, which was the article that persuaded me to support the Bill. She said it was something she thought she would never need to support, but she felt circumstances had so changed that we needed something. So I think we have to at least recognise that the change is so profound that it may be that the Bill is necessary and it may be that the Bill without Clause 4 is toothless. That is my question, really.

However, I am more drawn towards the points put forward by the noble Lord, Lord Sandhurst, about a kind of employment tribunal way of approaching this and giving clearer powers to regulators, rather than constantly looking to the law courts. I am much more open to that, and I do hope the Government will listen to that as a very sensible suggestion, and to the other points that have been made about giving more powers—clear powers—to the regulators to deal with this.

I have just another couple of queries, and I appreciate this is because I do not understand the law as the lawyers do. The noble Lord, Lord Grabiner, I think explained that the duties in the Bill mean that you do not need to have a statutory tort because anyone would be able to sue. But he made the point that in the Bill, having it as a statutory tort made that right to sue more prominent. Well, the difficulty I have there is that if the problem or the complaint is that it is being drawn attention to, I do not necessarily want to have a Bill that hides it either. If you have the right to sue, does it make any difference if you draw attention to it in the statue? That was the query I had there.

My question to the Minister is—I am completely confused about this—is the only point of Clause 4 if somebody suffers material damage? This has been referred to by people in a much more sophisticated way than I can. Is it that these are just disputes where you will actually lose your job or directly suffer material damage? The reason I mention that is that in most of the free-speech disputes involving academics at universities, what actually happens is that it is not so much material damage as reputational damage that might well have an impact on your employment in future. You are described as a bigot for ever more, and you cannot escape having these kinds of labels attached to you. That is one of the things that, again very movingly, Professor Kathleen Stock found so demeaning: that somebody who is a lifelong campaigner for women’s equality would have that label used against her. So can Clause 4 resolve this? Is it only material loss or does that material loss have a greater, encompassing way of saying reputational loss that will undoubtedly affect your employment prospects in the future anyway?

Photo of The Duke of Wellington The Duke of Wellington Crossbench 4:30, 14 November 2022

My Lords, I first declare my interest as a former chairman of King’s College London. In that position I was a layman, not an academic—we have had a number of very informed academic contributions—and I am certainly not a lawyer. I regret that I was not able to be present for Second Reading; I hope noble Lords will forgive me for intervening at this stage.

I am very surprised that the Government have sought to introduce this Bill at all, and certainly Clause 4. I have not yet detected a single Member of this House who is seeking to defend Clause 4 as currently drafted; every contribution has wished either to delete or amend it. The noble Lord, Lord Johnson, is in his place. He introduced the higher education Act a few years ago when he was Minister for Universities. I admit that I opposed many aspects of that Act. Indeed, the noble Lord, Lord Johnson, himself described it this afternoon as having introduced a very powerful regulator in the Office for Students; I would say that it is too powerful already.

However, we do have the Office for Students, and I really cannot understand the justification for putting into the Bill a statutory tort as well as the existing arrangements we have for the regulation of universities. On the whole, universities are surely one of the sectors of this country that have performed outstandingly well over many, many years. We have some of the leading universities in the world. We are recognised as being in that position; our universities are admired. Rather like the noble Lord, Lord Blunkett, I think I am opposed to the whole Bill; but I am most definitely opposed to Clause 4.

We all have such respect for the noble Earl, Lord Howe, and I do hope that Ministers will seriously consider withdrawing Clause 4 as currently drafted. If it is still in the Bill when we reach Report, I shall certainly oppose it—as, I believe, will many other noble Lords.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, it is a privilege to follow so many contributions from noble and learned Lords across the House. I declare my interests, first as a lawyer—unashamedly; we need to be loud and proud in these difficult times when we are so denigrated—but also my academic interests as listed in the register.

Like other noble Lords, I would prefer not to have the Bill at all, but this is not a Second Reading moment. It is a combination of virtue signalling on the one hand and “something must be done”, in the context of very difficult times culturally, with a polarised society, intergenerational disputes and so on. However, in a Bill that is not great, Clause 4 is the worst part.

Against myself, I would rather go back to a halcyon age where universities were largely self-regulating, as I think it was a rather good way of preserving their academic and free speech independence; but perhaps I am a dinosaur to think that universities could be self-regulating. I do understand that, when a lot of public money is being spent on universities, people will be concerned that they should not be totally self-regulating—and they are not, in existing law. But Clause 4 is problematic for a number of reasons that have been well drawn out—and not just by the lawyers, I might add; some of my asterisked and underlining notes are from the contributions of non-lawyers with practical experience of the academy.

To get into the “otiosity”—if that is a word—dispute between the noble Lord. Lord Pannick, and the noble and learned Lord, Lord Hope, I am probably, not for the first time, with the noble Lord, Lord Pannick. If Clause 4 were removed—incidentally, what is it about fourth clauses? I am glad that my noble friends on this side are giggling at that and are not upset. My reading of the Bill if it existed without Clause 4 is that it would give some further definition to the rights that already exist under Article 10 of the ECHR, which deals with free speech, and the duties placed upon public authorities to respect that duty in relation to those who would otherwise be deprived of their free speech rights in a university.

The noble Lord, Lord Johnson of Marylebone, made an important point: it is one thing to say that a university regulator that already exists and has all sorts of duties relating to this publicly financed space will take on extra responsibilities and concerns around guaranteeing free speech, but another thing to have, alongside all that architecture, a new statutory tort that brings financial compensation into it. Those things stand in tension, which is why I also have sympathy with the noble Lords, including the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Sandhurst, who said, “Let’s at least try to define this new Clause 4 duty or look at what it is we want to achieve by it.”

My own understanding is that courts and employment tribunals should already be ensuring that people’s free speech is protected in the context of their employment and appointment rights. If that is in doubt, so be it: provide for that in the employment law system, the appointments system and the regulatory system. But to create a free-standing and wide-ranging tort, which by definition would bring financial compensation in a context where civil legal aid is virtually dead in our jurisdiction, is an invitation to think tanks and NGOs, including international ones, to do what some people call making mischief—although, as a lifelong mischief-maker myself, I perhaps should not bang on about that too much.

Clause 4 will do the opposite of what is intended. What I believe to be intended is that we should once again be encouraging the clash of ideas, even when they are uncomfortable—even, occasionally, when they are offensive—in the academic space. To hand the right to litigate to people who should be debating, not litigating, is by definition to be handing it to some and not others. I have no doubt that that will have the opposite effect from what is intended.

The noble Baroness, Lady Fox, said, “Will it be just about financial loss or should it be about other kinds of loss as well?” One needs to be very careful about that in the context of free speech. I have been called a bigot. I do not think I am a bigot and it is not nice to be called one, but if people want to call me a bigot, they need to be able to challenge me on my prejudices, including in the academic space—and including in this Committee, where we are protected. Our free speech is protected in this place more than most people’s in the country and around the world, and we should be careful about imposing new duties and obligations that bring litigation in the name of free speech.

I have concerns about it still, but if this Bill must pass, let it be about regulating universities and empowering them to do better in the difficult navigation exercise that they have. Let it not be a recipe for more litigation, under a Government who are always saying that we have too many “activist lawyers” and human rights lawyers—do not get me started as this is the language of the current Home Secretary and former Attorney-General. What a contradiction it is to say, “There is too much activist litigation” and then to design a recipe for more and more of the same.

Photo of Lord Pannick Lord Pannick Crossbench 4:45, 14 November 2022

I hope the Committee will accept my apologies for failing to mention my interest as a member of the governing body of All Souls College, Oxford. It is an unusual college as we have no students, but we are not immune from the problems the noble Lord, Lord Triesman, mentioned earlier.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Crossbench

My Lords, I intend to intervene very briefly. I declare an interest as chair of the Equality and Human Rights Commission. The EHRC generally supports this clause so perhaps I need to add a caveat that I am not taking its advice but speaking in a personal capacity on this issue—perhaps “hybrid” is the best way to describe it, because I will lean on some of its arguments.

I broadly support the Bill. The importance of this clause is less to do with freedom of speech for individuals or visitors, and more to do with academic freedom. Academic freedom is profoundly important in terms of this clause. In the cases that have been mentioned, particularly on previous days in Committee, people have suffered real loss. At the commission, we carried out a very discreet and small piece of work—which is why it is not published yet—in a niche attempt to get under the skin of what was happening to academics in the daily course of their work in terms of a chilling effect and being able to express academic freedom. It was a small piece of work; nevertheless, we found clear evidence of a chilling effect in universities. This could extend to promotions or publications—it is very hard to get certain opinions published—or simply being welcome or having collegiate support in your faculty. There is a problem with the freedom of academics to research and publish what they do in certain areas that refer to some of the cases that have been mentioned here. I do not think the clause is designed to penalise those who offend who are just visiting speakers. It is much more about the people who have to do this day in, day out.

I want to address some points made by noble Lords. The reason this Bill is here is because we know that the Office for Students has been found wanting. The Office for Students has not been able to do what it should be doing, which is why we have the number of cases that have come to the courts. They have not come to the courts under employment law. They have had to come by different routes to get there because the Office for Students perhaps does not have the right powers. I do not wish to criticise another regulator, but perhaps it does not have the powers and that is why we are debating this Bill.

The noble Lord, Lord Grabiner, made a very powerful speech and I am convinced by a lot of what he said, which is why I am not in full enthusiasm supporting this clause. I will wait until Report for that. He made an important point that individuals, on the whole, do not have the resources to go to court. I think this point was picked up by other noble Lords as well. Welcome to the world of crowdfunding: anybody who has a gripe these days can crowdfund and will find somebody who is prepared to dip into their pocket to pursue that litigation. A lot of regulators and smaller bodies which are not fabulously well funded, as well as individuals, are having to face this blight of non-expert people reading an article in a paper, feeling outraged and getting on to PayPal and sending money. Charities know all about that. I do not support the clause but, on litigation, there are people who are endlessly willing to go to court, so I do not see this as a particular deterrent.

I will ask the Minister two questions. The first is on academics who come under extreme pressure in their departments, as was the case with Professor Stock, who has been mentioned. In order to resolve the situation, they are perhaps pressurised to agree—or perhaps they willingly agree, but at a time of huge distress—a departure with the institution. I do not know the detail of Professor Stock’s case, but that is sometimes done through confidentiality agreements and sometimes through non-disclosure agreements. The Strasbourg court has in some cases overridden those on the basis of Article 10, but in other cases it has not. Therefore, there is ambiguity in the defence of Article 10 rights when you have had to sign a non-disclosure agreement with an institution in haste at a time of great emotional distress: later on, you do not know whether you can get those rights upheld.

Finally—here I address the Minister directly—Section 43 of the Education (No. 2) Act 1986 created a legal duty for higher education providers to take “reasonably practicable” steps to ensure freedom of speech within their institutions. There has also been subsequent legislation, the last being as recent as 2017. Would not those protections be adequate if Clause 4 were not to stand part? If they are not adequate, the Committee needs the Minister to explain why, because we return to this issue every few years. I am rather swayed by the very knowledgeable opinions expressed today urging the Government to be cautious in this regard, although we generally support the Bill.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

My Lords, we on these Benches share the view that we do not need the Bill, as held by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and, I believe, the noble Duke, the Duke of Wellington—I apologise if I have taken his name in vain.

In order not to engage in Second Reading again, I will start with the point from the noble Lord, Lord Cormack: with any piece of legislation, ask yourself whether it is necessary. There seems to be a strong sense that there are serious questions about Clause 4 among all speakers across your Lordships’ House, from noble and learned Lords to academics to retired politicians—or rather retired MPs: people in your Lordships’ House may or may not think of themselves as politicians; on the Cross Benches they probably do not, but on some other Benches “retired MPs” may be the appropriate phrase. But there is almost unanimity across your Lordships’ House in opposition to Clause 4, or at least in doubt about it. The only Member who seemed keen to try to support Clause 4 was the noble Baroness, Lady Fox, but she did not seem to have been quite persuaded by it. Could the Minister be persuaded to think again? As noble Lords, particularly the noble Lord, Lord Grabiner, have eloquently pointed out, this clause is not fit for purpose or desirable.

It is not clear that the clause will even work in its own terms. The noble Lord, Lord Triesman, sought to point out that academics are particularly mischievous and that they can debate until the cows come home. However, whether you hang a portrait or how you design your gardens in an Oxbridge college are not things that we would normally take to litigation. That might be the sort of activity that engages academics, but this debate is much more profound. Here I declare my interest as a Cambridge academic; I declared it at the start of Committee stage, but I reiterate it on the record as we are currently in the main Chamber. What we are talking about here is not the sort of debate that people might have over dinner, or in the Oxford Union or the Cambridge Union; these debates are about very serious issues of freedom of speech. Yet it is not clear how Clause 4 will, in any way, strengthen freedom of speech, because, as we have heard from several noble Lords—in particular, the noble Lord, Lord Willetts—there is a danger of a chilling effect. The Government have not adequately thought this through, including the law of unintended consequences. Already, with something like the Prevent requirements, academics or students considering whether they will invite people to speak will think, “Is it worth the effort? Is it worth going through all these procedures to invite a controversial speaker?” Very often, the answer will be no. Bringing in the civil tort will only make that danger even more severe.

Yes, we need a way of ensuring that free speech can be guaranteed, but as the noble Lord, Lord Johnson of Marylebone, suggested, surely that is the job for the regulator. Trying to bring in lawyers is a recipe for even more hours of debate than an economics faculty or the synagogue of the noble Lord, Lord Triesman, might engage in. It will be costly, but will it benefit anybody apart from the pockets of the lawyers? It is not clear that it will.

This clause seems to be deeply unwelcome, and it is unclear that it is necessary. Can the Government think again and consider removing it by Report stage?

Photo of Lord Collins of Highbury Lord Collins of Highbury Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs and International Development), Shadow Deputy Leader of the House of Lords

My Lords, I start by saying that this has been an excellent debate. One of the excellent things about this House is that the debate has not been partisan at all—and certainly my contribution this afternoon will not be partisan.

I will share some thoughts about lawyers and courts. As a lifelong trade unionist, I have of course tried to resist courts intervening in industrial relations. This is for good reason, because when Governments have tried to use courts in industrial relations, it often ends in failure. The biggest change over the years—certainly in my experience—has come from the adoption of best practice, codes of practice and the introduction of a regulator. That has resulted in far more progressive and better change than when the courts were used as a weapon. I think that this clause is exactly about that.

The noble Lord, Lord Johnson, is quite right. Whatever we think about whether this provision will resolve some of those vitally important issues, the fact is that we have a well-established regulator, and this Bill proposes to strengthen that regulator. As I was listening to the debate, I thought about the one that we had on the Trade Union Bill. The Government at that time, when highlighting the problems in industrial relations, decided that the main focus—although I opposed that Bill at the time—should be on how we strengthened the regulator. Certainly, in terms of the certification officer, those powers were strengthened.

It is a fundamental question. If the Bill has a purpose, it is about change, and its main focus has been on how we make the regulator more effective. What the debate has clearly established is that this clause will have the opposite effect: it undermines the regulator and the changes that we are trying to make. The words that kept coming to my mind in Committee and at Second Reading are those of the Minister, who said that the provisions of Clause 4 were a backstop. I fear that it will be the first step and will result in very well-funded litigation, not to put right a wrong, change a practice or improve the situation, but simply to have a go and make a point. We call it “vexatious”, but that is the climate that we are in danger of empowering, if we are not careful.

I signed the clause stand part proposal from the noble Lord, Lord Willetts. The signatures to it reflect the point that I made at the beginning: this is a non-partisan debate, and it reflects opinion right across the House. I hope that the Minister will listen very carefully, because I would rather him come back and say that there are points on the regulator that the Government want to improve, there may be things that they will change over a period of time, and they will review the Act—if it becomes an Act. But this clause would open the door to courts and litigation that will undermine any good work that the regulator attempts to do, and the debate has shown very clearly that it needs to go.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 5:00, 14 November 2022

My Lords, as noble Lords have indicated, today and at Second Reading, the issue of the proposed new tort is one that has given rise to a number of doubts, questions and worries, which I shall do my best to address. Whether I can entirely assuage those concerns remains to be seen, but I hope that noble Lords find what I say to be helpful at this stage.

Amendment 48 from the noble and learned Lord, Lord Etherton, seeks to make it clear in the Bill that a claim under the tort against a higher education provider or college can be brought only by the individuals specified under new Section A1(2), namely those whose freedom of speech is protected under the Bill. The amendment would also make it clear that such a person must have suffered loss in order to bring a claim. I can confirm without hesitation—and I hope that it is helpful for me to place on the record—that we intend for the new statutory tort to operate as the amendment suggests, which is the usual approach under tort law. This is reflected in the Explanatory Notes.

For someone to make a successful claim via the tort against a provider, the claimant would need to be able to show that the provider owed them a duty of care. Only the class of individuals specified in new Section A1(2) would be able to demonstrate that the provider owed them a duty of care. This is not a question of demonstrating standing to bring a claim, rather a question of demonstrating that they were owed a duty of care—a more limited group that would not, incidentally, include pressure groups.

As for the need to demonstrate that they have suffered loss, the claimant would need to point to a genuine loss that they had suffered as a result of the breach of the freedom of speech duties in new Section A1 in order to claim damages. If we bear in mind that only a person specified in new Section A1(2) could bring a claim, we consider that they would do so only if they have suffered because of a breach of the duties—even if, for example, that loss is injury to feelings and not a monetary loss. I come back to the point I have made before, which may be helpful to the noble Baroness, Lady Fox: we intend the tort to be a backstop, particularly for those situations where an individual disagrees with a recommendation that has been made.

I understand the concern of the noble Lord, Lord Grabiner, that Clause 4 should specify that compensation can be awarded by the courts. There are, as he rightly said, some statutory torts where it specifies this but also torts that do not: for example, Section 138D(2) of the Financial Services and Markets Act 2000. The principal remedy for tort is damages, although, as the noble Lord will know, an injunction and other remedies may also be available. An injunction, for example, could require that a student is readmitted on the course which a provider has removed them from, so we would certainly want a court to be able to order that, if appropriate.

The remedies available for the tort of breach of statutory duty are the same as for tort generally, subject to the intention of the relevant statute. Where the legislation itself provides a remedy, the question may arise whether it is tended to be additional to the general remedies available under the law or instead of them. Where the legislation provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. Given this, we think that it is not necessary to specify that compensation is available; it could, in fact, unintentionally limit the court’s powers.

Amendments 49 and 52, tabled by my noble friend Lord Sandhurst, seek to allow the employment tribunal to determine claims brought by academic staff members under the new statutory tort and to make dismissal for exercise of academic freedom automatically unfair. The consequential amendment removes the qualifying period for unfairly dismissed academics and the cap on the compensatory award, and it allows the tribunal to order interim relief. The Bill does not prevent academic staff bringing claims before the employment tribunal, which may take into account a breach of the freedom of speech and academic freedom duties, if it is relevant to a claim before it. Under the current employment law framework, the two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff. Where an employee does not have two years’ service, it is still possible to bring a claim for wrongful dismissal in the civil courts.

In answer to the noble Baroness, Lady Falkner, in particular, the Bill in fact broadens the range of people covered by the existing freedom of speech duties to ensure that all staff within a provider, college or students’ union have protections and can seek redress where duties are breached. The new duties give particular protection to academic staff, including those who may not have employee status or have been employed for less than two years. It therefore broadens the scope of the current provision to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging without the risk of losing their post, privileges or prospects.

The Bill gives specific jurisdiction to the courts to consider claims for breach of a statutory duty, as well as setting up a new complaints scheme. I say to my noble friend Lord Willetts that we think that this is a proportionate approach. Academic and non-academic staff will have sufficient routes for redress, without the need to amend employment law as proposed.

Amendment 50, also tabled by my noble friend Lord Sandhurst seeks to make clear in the Bill that the tort should be only a remedy of last resort and that individuals should first exhaust the free route of redress of the Office for Students complaints scheme. Under the amendment, the court would be able to stay the claim on the application of the defendant. We expect that most complainants will choose to use the complaint scheme of the OfS—or students may wish to go to the Office of the Independent Adjudicator for Higher Education—before considering going to court, as no costs are involved in lodging a complaint.

The noble Lord, Lord Grabiner, spoke of mischief-makers. We consider that the tort is unlikely to lead to higher education providers, colleges and student unions having to deal with a large number of unmeritorious claims. A claimant would need to be able to show that the defendant owed them a duty of care, and they would need to point to a genuine loss that they had suffered as a result of a breach of the freedom of speech duties, as I described. In the case of an unmeritorious claim, the claimant would struggle to make their case. In addition, an unmeritorious claimant would risk having to pay substantial legal costs as a result, not only their own but potentially also the legal costs of the defendant. This, together with the availability of free routes for seeking redress, means that we expect the tort will likely be used only as a backstop.

Photo of Lord Grabiner Lord Grabiner Crossbench

Does the Minister think it appropriate that there should be left in place two possible routes for a complainant—a regulatory route and a Clause 4 route—without there being any guidance whatever in the legislation as to who should or should not go first? At the moment, the Minister is saying, by way of assertion without a scrap of evidence to support it, if I may respectfully say so, that the expectation is that people will use the regulatory procedure first if they are going to make a complaint. At the moment, the legislation does not cater for that problem. Is he satisfied with that?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.

It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.

However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.

Turning to the broad issue of this clause as a whole, I am aware that the noble Lord, Lord Stevens, who is not in his place, my noble friend Lord Willetts, the noble Lord, Lord Wallace, who cannot be here but is represented, if I may say so, by the noble Baroness, Lady Smith, and the noble Lord, Lord Collins of Highbury, have all given notice of their intention to oppose the inclusion of the tort clause. I have, of course, listened to other noble Lords who are of similar mind, who I hope will forgive me if I do not name them—there are many names to include. I simply add to what I have already said by pointing out that the existing legislation does not give a specific right to seek compensation to individuals who have suffered loss as a result of breach of the freedom of speech duty, leading to concerns that the law as it stands does not offer similar protection. This is one of the lacunae addressed by the Bill.

The noble and learned Lord, Lord Hope, who cannot be here—ah, he is here. I am very glad to see that he has escaped the fog at the airport and I beg his pardon. His views were, I hope, effectively represented by the noble Lord, Lord Grabiner, and I trust that I have picked them up correctly. The noble Lord, Lord Grabiner, made a point on the noble and learned Lord’s behalf about the pre-existing access to the courts, and my noble friend Lord Cormack made points that followed on from this. The current duties under the Education (No. 2) Act 1986 are not actionable, except under the Human Rights Act or by way of judicial review. It would be the same position under this Bill without Clause 4: namely, an express tort set out in statute. The right to damages is therefore limited, and that is one aspect of the current regime that needs strengthening to give individuals the right to claim redress through the courts.

Photo of Lord Grabiner Lord Grabiner Crossbench 5:15, 14 November 2022

I apologise: it is probably my fault because I did not convey the point of the noble and learned Lord, Lord Hope, as clearly as I could, and perhaps should, have done, and certainly not as clearly as he inevitably would have. It is not about the earlier 1980s legislation; the fact is that the Bill, if it becomes law, will contain brand-new statutory duties. It is those duties that, if broken, would give rise to the course of action we are talking about.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.

I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.

I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.

Photo of Lord Collins of Highbury Lord Collins of Highbury Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs and International Development), Shadow Deputy Leader of the House of Lords

A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench

My Lords, perhaps I might ask the Minister to consider this. He mentioned earlier in his remarks that the question of pressure groups was not really relevant because they would not be an entity to which a duty of care was owed. The problem with pressure groups is their willingness to fund litigation on the part of other people: I think that is the relevance. Would the Minister care to reflect on that?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I take that point absolutely. I was not seeking to say that someone well funded by a pressure group could not, in certain circumstances, have recourse to the courts. It was simply a point made about pressure groups in themselves.

Photo of Lord Etherton Lord Etherton Crossbench

I am very grateful to the Minister for dealing with the range of issues that have arisen. So far as my own amendment is concerned—as I have made clear in the past—it is very poor drafting to leave out major provisions that should be going into the Bill and leave it to a statement of the Minister at the Dispatch Box or to be found in the course of reading the Explanatory Notes. I do think my amendment should be put into a proper form in the Bill itself, if necessary by a government amendment.

If, as I think the Minister referenced, it is envisaged that the courts will be able to give remedies other than compensation, again, that is a very important consideration. I would want to consider very carefully whether it is appropriate for the courts to have to find a suitable remedy other than damages in a particular case, so I would very much welcome an appropriate amendment that we could all see if this provision is to remain in the Bill. Subject to that—and I am very happy to have meetings with the Minister to discuss these matters—I beg leave to withdraw my amendment.

Amendment 48 withdrawn.

Amendments 49 and 50 not moved.

Amendment 51 had been withdrawn from the Marshalled List.

Amendment 52 not moved.

Clause 4 agreed.

Amendment 53 not moved.

Clause 5: General functions

Amendments 54 to 56 not moved.

Clause 5 agreed.

Clauses 6 and 7 agreed.

Clause 8: Complaints scheme

Amendment 57 not moved.