Motion A

Part of Higher Education (Freedom of Speech) Bill - Commons Amendment – in the House of Lords at 6:00 pm on 10 May 2023.

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Photo of Lord Grabiner Lord Grabiner Crossbench 6:00, 10 May 2023

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

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

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

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

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

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

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