Motion A

Part of Higher Education (Freedom of Speech) Bill - Commons Amendment – in the House of Lords at 6:30 pm on 10 May 2023.

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Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 6:30, 10 May 2023

My Lords, I am grateful to noble Lords for their questions and comments, which I shall do my best to respond to. I begin with the noble Lord, Lord Wallace, who made, if I may say so, a very gracious speech—I know that he has severe doubts about the Bill. I fully subscribe to his remarks about the need to preserve diversity of opinion in universities and about universities being national assets. The hope and belief we have is that these proposals will ensure the delivery of the cultural shift that can restore our universities to their position as the powerhouses of open debate and transformative thinking. But he is also right to say that much will depend on how the Act is applied.

Here, I think I can appropriately move to the comments made by the noble Lord, Lord Grabiner. He expressed his fear that the Bill as now drafted, if this amendment is accepted, will create perverse incentives and drive people towards the courts in the first instance. That is not the view of the Government. Injunctive relief, as I am sure he does not need to be told, is a discretionary remedy which may be used in limited circumstances where a court considers it just and convenient to order a provider, college or student union to take immediate—that is the key word there—action to remedy harm caused by a breach of their freedom of speech duties and where damages would not be sufficient. An example of that, as I mentioned, would be to require the reinstatement of a student who has been unlawfully removed from their course. We expect very few cases will proceed directly to court in pursuit of injunctive relief without first having exhausted the OfS or OIA schemes. The Government are clear that, aside from the injunction exception created by our amendment, the tort should be used only as a last resort where complainants are not satisfied with the outcome of OfS or OIA schemes.

I remind the House very briefly that the claimant in such a case would need to point to a genuine loss that they had suffered as a result of a breach of freedom of speech duties in Section A1 or Section A5 in order to bring a claim. We should also note that only a person specified in Section A1(2) could bring a claim. We therefore 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 damage to reputation and not a monetary loss.

The noble Baroness, Lady Thornton, asked for clarification on the extent to which we feel the injunction would be resorted to. Emergency injunctions applied for in order to prevent a breach of the freedom of speech duty before it occurs would not be subject to the requirement to exhaust a complaint scheme first, since the schemes can consider only complaints of a breach that has already occurred. It is true that those who anticipate a breach of the duties can go directly to court to seek an injunction to prevent that breach occurring. Such a complaint could not be considered by the OfS or the OIA because there would be no breach of the duty to consider. However, we are now considering the situation where there has already been a breach of the duties. In most cases, the complaints schemes will provide the best route for redress as they are free to use, but where there is a need for a speedy remedy, we have decided that we should allow immediate access to the courts. The Bill is setting up a new OfS complaints scheme and establishing the statutory tort. This is about making sure that both new mechanisms mesh together in the best way possible.

My noble friend Lady Lawlor expressed her fear that an institution might delay a decision indefinitely and draw out the process. She may like to note that it will be for the Office for Students to make the rules for how the scheme will operate, which it will consult on. Paragraph 5(2)(b) of new Schedule 6A specifically refers to how it will deal with the internal review processes of higher education providers, as it may include provision in the rules about the issues to which she referred. The Bill states that the OfS complaints scheme may include provision that a referral under this scheme can take place only after the complainant has exhausted any internal complaints procedure of the higher education provider, college or student union. In the context of the injunction, that does not apply to applications to the court for such an injunction where a swift remedy is sought, as any delay caused by making an internal complaint would be too long in such circumstances. I hope that that is helpful to my noble friend.

I was grateful to the noble Baroness, Lady Fox, for what she said about the need for a culture change and, in particular, for highlighting the role of the director of free speech in the OfS. The director will bring critical external experience and knowledge from the higher education sector, and they will build strong working relationships between the OfS and the sector, providing strategic oversight for the freedom of speech programme and gathering insights from providers. We expect the flow of information to be very much two-way, and this will be critical to the OfS as it develops guidance for higher education providers, constituent colleges and student unions to help them comply with their new duties, including highlighting best practice. The OfS will be monitoring what happens.

I hope that provides an answer to my noble friend Lord Willetts, who has expressed fears all along that the Bill may in fact have the opposite effect from that intended and cause a cooling effect on universities which might otherwise wish to invite controversial speakers. We do not agree with that, but it is because the culture needs to change, and we believe we have the means to change that culture, that I think, hope and believe that his fears will not be borne out.

Reverting to the noble Lord, Lord Wallace, and indeed to my noble friend Lord Willetts, we wish universities to be thriving, autonomous centres of free thought, free speech and free debate, and the mechanisms that we are setting up today should be of assistance in promoting that. As I said earlier, if the House accepts this amendment today, we will have achieved the consensus required to enable the Bill to proceed to Royal Assent. I hope the House will do so, and implementation can then follow.

Motion A agreed.

Sitting suspended.