Higher Education (Freedom of Speech) Bill - Commons Reason – in the House of Lords at 4:02 pm on 21st March 2023.
My Lords, I am pleased to be back again to debate the Higher Education (Freedom of Speech) Bill. I must express my thanks once again for the time and thought your Lordships have given to this legislation. Members of the other place were particularly happy to see the amendment banning the misuse of non-disclosure agreements in cases of sexual abuse, harassment or misconduct, or other bullying or harassment, as proposed by the noble Lord, Lord Collins of Highbury. I am grateful to him for tabling this amendment as a very positive addition to the Bill.
As your Lordships know, the tort has been by far the most contentious issue during the passage of the Bill, but the Government remain firm that it is vital for it to be included. I recognise that the decision of the other place to reinstate the tort as it was originally drafted, without amendment—including the government amendments that were tabled in this House on Report—has been of concern to noble Lords. I am very aware of the strength of feeling in this House regarding the tort clause. I have spoken to many noble Lords individually and listened carefully to the points raised during debate. Ministers have also had useful discussions since the Bill returned to the other place last month and have given further consideration to what form the tort should take.
Before turning to the amendment to the Government’s Motion tabled by my noble friend Lord Willetts, I shall set out once more the Government’s rationale for the tort’s inclusion and offer clarity on issues raised in recent ministerial engagement with noble Lords. I believe that the possibility of bringing legal proceedings is critical. We have said many times in this Chamber that, where issues cannot be solved satisfactorily by other routes, there should be an option to go to court. It is right that cases can be brought, and the court has a range of remedies at its disposal to achieve redress where it is concluded that that is appropriate.
The tort is a crucial part of the package of measures brought forward by the Bill to strengthen the law that protects freedom of speech, with a robust enforcement mechanism as a solid foundation for the new duties. Indeed, it is the view of some in this House and indeed of numerous academics and other stakeholders that, if the tort were removed, the Bill would not have the necessary force to bring about the cultural and behavioural shift necessary to prevent further erosion of freedom of speech on campus.
However, I also want to be clear that including the tort in the Bill will not create a free-for-all with cases being brought to court without due consideration. Indeed, we expect the use of the tort to be relatively rare, as indeed do those stakeholders who strongly support its inclusion in the Bill. The vast majority of complaints will be successfully handled by providers themselves, through the free-to-use Office for Students complaints scheme or via the Office of the Independent Adjudicator for Higher Education. Examples of where the tort may be used include where complainants feel that their complaint has not been resolved by the OfS or OIA to their satisfaction. In addition, it will be useful in the rare cases where a provider fails to comply with a recommendation made by the OfS or OIA.
There has been a suggestion that the inclusion of the tort will undermine the position of the OfS, but in fact the Bill will give the OfS new wide-ranging powers to investigate when higher education providers, colleges and student unions have breached their freedom of speech duties. It creates the role of director for freedom of speech and academic freedom, who will oversee the new free speech functions of the OfS. The tort is intended to complement those new powers, providing a backstop mechanism on the rare occasions when it is needed. We expect that the courts will generally be slow to overrule the OfS, as the expert in the sector, and the OfS will find any court rulings helpful in developing guidance and considering future cases.
Some noble Lords have expressed concern about the potential implications of the tort for student unions, which they think will not have the wherewithal, including the financial resources, to defend themselves against threatened legal proceedings. It is of course true that by bringing student unions within scope of the Bill, and by giving them new duties, they will become liable for breaches, but what is reasonably practicable for a small student union will not be the same as what is reasonably practicable for a large provider, an issue that the OfS and the courts will have at the forefront of their considerations. Examples of what is reasonably practicable include maintaining a code of practice, having a room-booking policy that covers freedom of speech appropriately and providing training to those who have a relevant role.
Other noble Lords have expressed concerns about student societies, a matter on which I believe I can also offer reassurance. As I have said, student unions will have a duty to take reasonably practicable steps to secure freedom of speech. Importantly, student societies will not themselves be subject to the duties in the Bill. However, those who run societies will be subject to the codes of practice published by their provider, college or student union. A failure to comply could result in disciplinary measures.
Similarly, if a student society is affiliated to a student union, those who run it will need to comply with the student union’s rules. Therefore, if a society is holding an event on student union premises, the student union’s room booking policies will apply, as well as the code of practice. Measures should be in place to ensure the society is aware of the rules that apply and that action can be taken if these rules are broken.
This point is crucial: a complainant would have no course of action against individual students or a student society. Although they may consider whether they are able to bring a complaint against a student union, the burden of proof will be on them to show that the student union has breached its duty to take reasonably practicable steps.
I also wish to address the point that some noble Lords have raised about the potential for the tort to create a paradoxical chilling effect, with providers, colleges and student unions avoiding holding controversial speaker events for fear of litigation. I want to be clear: the best way to avoid litigation will be not to cancel events but to take reasonably practicable steps to ensure that events can take place. There are provisions in the Bill that are intended to encourage a culture change on our university campuses, including a duty on providers and colleges to promote the importance of freedom of speech. A blanket policy of vetting all invitations and deliberately avoiding inviting any controversial speaker could itself constitute a breach of the duties under the Bill.
Finally, I turn to the amendment to the Government’s Motion, tabled by my noble friend Lord Willetts, which replicates amendments tabled by the Government on Report in the Lords. This House, carrying out its important constitutional function, opted to send a clear message to the other place that it should think again regarding the tort provisions. The other place, having thought again, has returned an equally clear message to this House as to the strength of its feeling that the tort should remain in the Bill. I note that, to emphasise that, it was willing to reinsert it without the government amendments tabled on Report in the Lords. In the light of that strong view, I hope the House will acknowledge that action by the other place and instead seek consensus on an outcome that rightly recognises that the tort should be retained but with some sensible amendments to clarify and reassure in relation to the implementation of the regime.
Indeed, I thank my noble friend Lord Willetts for his pragmatic engagement on this issue, particularly in his acknowledgement that the tort has a role to play in the new statutory regime. The Government take the view of the House seriously and therefore support this amendment to the Motion, assuming that it is moved, and I hope that other noble Lords will do so as well.
The amendments provide an opportunity to give clarity about how the tort will operate in practice. Our intention has always been that the tort should be used as a last resort, with the majority of complainants likely to rely on the free-to-use complaints schemes. Similarly, only those who have suffered loss should be able to bring a claim.
When the Government tabled those amendments back in November 2022, four months ago, the prevailing view from the sector and stakeholders was that they offered a good compromise. However, since then the issue has grown in importance, and controversy about the application of the tort has sharpened. It is only right that I share with noble Lords the concerns expressed to Ministers since this issue was last debated in this House, particularly from those the Bill is most designed to protect. In conversations with academics, we have heard serious concern that their freedom of speech is being quietly curtailed.
Given the strength of feeling from those who are genuinely concerned that their jobs are on the line and academic freedom is under attack, I have to be clear with noble Lords that this concern may well be reflected in a move in the other place to amend the Bill still further. I cannot presume to encroach on conversations or proceedings in the other place, but in that event it is only right that I commit the Government further to explore possible opportunities to achieve consensus in the Commons stages. I am therefore content to say that the Government support these amendments. But given that those academics are at the forefront of our minds, I am conscious that this matter may not yet be finally settled, should your Lordships agree to my noble friend’s amendments.
I hope that, alongside the assurances I have given today, noble Lords are persuaded that the tort is a vital legal mechanism that is necessary if we are to ensure that our world-class universities are the home of plural debate. I beg to move.