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Higher Education (Freedom of Speech) Bill

Volume 732: debated on Tuesday 2 May 2023

Consideration of Lords message

Financial privilege is not engaged by any of the items in the Lords message relating to the Higher Education (Freedom of Speech) Bill.

Clause 4

Civil claims

I beg to move,

That this House agrees with the Lords in their Amendments 10B, 10C and 10D; disagrees to their Amendment 10E, and do propose in lieu of their Amendment 10E Amendment (a) to the words restored to the Bill by Commons disagreement to Lords Amendment 10.

It is almost two years since the Bill was introduced to the House in defence of the fundamental principle that students and academics should be able to express their beliefs and debate controversial ideas without fear of repercussion. We return to the House to resolve the final element on which we seek agreement: the form that the statutory tort takes in the Bill. The tort is the measure that will allow people to bring civil proceedings where they believe that certain duties in the Bill have been breached to their detriment. Since I last brought the Bill before the House, the other place has accepted the inclusion of the tort in principle. That is a huge step forward and a significant victory for freedom of speech on campus.

In February, this House voted to reinstate the tort in full following its removal in the other place. In March, the other place accepted the need for the tort but sought compromise in the form of amendments identical to those tabled by the Government on Report. That is the wording of the clause that we are now considering.

I want to emphasise that this is a significant shift in the terms of the debate. We are considering no longer whether the right to go to court should be included but what form it takes. However, I recognise that colleagues still have some concerns, and I want to reassure them that the two Government amendments will mean that the tort retains its teeth and offers a concrete means of redress for those whose right to free speech has been unlawfully infringed.

Proposed new subsection (2) will make it clear in the Bill that “loss” is not limited to pecuniary loss. That means that academics will be able to go to court if they have suffered, for example, reputational damage or adverse consequences to the progression of their career. Subsections (3) and (4) mirror amendment 10E from the other place. New subsection (5) will ensure that, in circumstances where speed is essential, a complainant can apply for an injunction where there has been an alleged breach of the free speech duties.

I turn to proposed new subsection (2), which builds on amendments 10B, 10C and 10D as voted for by the other place. On 7 December in the other place, my counterpart Earl Howe stated on Report that loss is

“not limited to pecuniary loss and could include damage to reputation, for example.”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 195.]

Subsection (2) simply makes that clear in the Bill. The amendment therefore reflects the original policy intent. I hope that offers reassurance to the House and that hon. Members will support its inclusion in the Bill.

I turn to proposed new subsection (5), which builds on amendment 10E as voted for by the other place as now included in new subsections (3) and (4). Amendment 10E would require claimants to have exhausted the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education before they can bring legal proceedings. Some hon. Members have expressed concern that that would prevent individuals from seeking an injunction where a breach of specified freedom of speech duties has already taken place and swift redress is sought. I share the view of many colleagues that access to the courts in those circumstances is crucial.

Subsection (5) will mean that a claimant who is applying only for an injunction will no longer have to exhaust the complaints schemes first. Those claimants will therefore have direct access to the courts. It is important to allow for that to avoid delays that may cause further harm to the claimant. If, for example, a student is expelled from their course because of a free-speech issue, it may take a long time to resolve their complaint, and damages would not be sufficient. The student would be seeking re-entry on to that course to continue their studies. In that scenario, subsection (5) will allow the student to seek an injunction from the courts as quickly as possible. I am sure the whole House agrees that that is sensible and justified.

Yes, it is an excellent change. The only question in my mind is why this rather obvious feature was not included at the beginning. Could the Minister look into that and—if not now, on another occasion—throw some light on it? It was an obvious flaw in the Bill.

I thank my right hon. Friend. I think the fact that we have now included that in the Bill shows that we have worked with both sides to ensure that the Bill is as strong as possible. We have always had the academics, visiting speakers and students that it seeks to protect at the forefront of our mind.

I should reiterate that the provision concerns injunctions where there has already been a breach of the relevant duties. Where there is an anticipated breach of the duties, a claimant can apply for an injunction to prevent that—that has always been the case, since the requirement to exhaust the complaints scheme only applies in the case of an actual breach. It is important to note that we believe that this exception will apply only in a minority of cases, as most claimants will not seek, or have their case result in, an injunction. Nevertheless, we are sympathetic to complainants who find themselves in the difficult circumstances in which an injunction may be required. Further to this, we expect the OfS will take into account the implications of the amendment when drafting the complaints scheme rules.

I hope that the House will therefore accept amendments 10B, 10C and 10D from the other place, and agree with the Government’s proposed new subsections (2) to (5), which are consequential upon the amendments.

In recent weeks, we have seen a rather unedifying situation whereby Members from both sides of the House have been no-platformed by universities across the UK. In addition, Berkshire has several Facebook groups which purport to be in the public interest, but are actually used mainly by Labour activists to attack the Government. Comments made by Conservative councillors or those who disagree with the sites’ administrators are deleted, with some users even banned from the sites.

Cancel culture is odious, and I believe it exists because the Opposition do not want to hear the truth—they cannot face the truth. Will this Bill go any way towards dealing with cancel culture?

I thank my hon. Friend, who has had his own experience of that in recent weeks. This Bill will not only strengthen the duty of our universities to ensure that they are protecting freedom of speech on campus, but create a new director of free speech, who will champion the cause, and strengthen the powers of the OfS to deal with those who breach that duty. I believe it will speak to my hon. Friend’s real concerns.

The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.

Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.

It is a very serious step for anyone, particularly a student with limited means, to go to court and seek an injunction. Surely the hon. Gentleman can see that no one will do this on a whim. They will do so only when their rights are being seriously infringed.

I have a huge amount of respect for the right hon. Gentleman, as he knows. Of course I would be concerned about the case of an individual student, but I fear more generally about the tort being a channel for more vexatious claims by well-funded individuals or organisations, and where that may take us. I will expand on that point.

Where issues arise, Ministers have shown no interest in dealing with the underlying causes. I fear that this is yet another example of Ministers leaning in and exploiting cultural divides, opting for punitive, confrontational tools such as the tort before us. I have repeatedly stated the plethora of options open to the Government: the Chicago principles, the Robert French report, Universities UK’s guidance, internal processes and the Manchester and King’s guidelines—all of which would do a better job at resolving issues whenever they arise.

The hon. Gentleman mentions the cost of going to court and that that will be prohibitive for students and academics, but surely the opposite is true. At the moment, the only provision that students and academics have in the case of their free speech being cancelled is judicial review, which costs tens of thousands of pounds. The whole point of introducing a tort in a county court, for example, is that it is relatively cheap and relatively affordable for anyone.

As the hon. Member will know, the tort has been left in the legislation. A compromise was reached in the other place, so that is in the Bill, as far as we know. Our point is that we do not believe that an injunction is at all necessary. Indeed, it will complicate the process for all involved. The Minister will know that I was trying to reach her last week. I was keen to discuss this issue, because I wanted to seek some sort of understanding about what was going on, but for some reason we were not able to speak. I hope that we can do that in future, because I think that will circumvent problems.

To be fair to the Minister, she is clearly aware that colleagues have strong views on the issues linked to the tort—she said as much in her “Dear colleague” letter last week. Perhaps it is worth reminding ourselves of some of those views. Lord Grabiner, an eminent jurist, said that the tort could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That is the point I was making to the right hon. Member for New Forest East (Sir Julian Lewis). Lord Molyan, a Conservative peer, stated:

“the Government do not know what they want to do about this”.—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1692.]

Universities UK, which represents 142 universities, stated:

“our position remains that the tort should not stand as part of the Bill.”

It feels that the original amendments amount to “sensible and acceptable compromise”. It was understood across the sector and in the other place that we had reached a point where the system was workable—they had reservations, but said they would accept the compromise. Given the Minister is clearly aware of those strong views, why has she not paid heed? In her letter, she encouraged us all to support the Government’s motion today, owing to

“limited legislative time to progress with further changes”.

It is pretty ironic for her to invoke the tight parliamentary timetable to push through her regressive motion, given the Bill has benefited from two parliamentary Sessions. We are here today, two years on, only because the Minister has reneged on the position accepted by Government Ministers in the Lords.

In her “Dear colleague” letter, the Minister claims that her motion provides the necessary reassurances on the issue, but she fails to mention that reassurances were already provided by Earl Howe. A satisfactory compromise —supported by Labour—was reached. Indeed, it might be deemed a model case in how to resolve competing interests, reminding us of the shared values we have in common:

“a commitment to freedom of speech and diversity of opinion.”—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1685.]

Those are the wise words of Lord Willetts. Yet with this motion, the Minister seems to be reopening Pandora’s box, prioritising tabloid headlines about a permanent crisis in freedom of speech on campus, over and above cross-party consensus and good legislation.

On the two planks of the Government amendment, the first specifies sustained loss as including non-pecuniary loss. The first concession the Minister has made to her Back-Bench rebels is to put in the Bill that “loss” extends to non-pecuniary loss, such as injury to feelings and reputational damage. I understand that was always assumed to be the case by the Government, but the Minister felt compelled to assuage the concerns of Back-Bench Members that such damage could be excluded by the courts.

If non-pecuniary damage is to be a loss recoverable under tort in freedom of speech claims, the question arises as to how the loss will be calculated. That has important consequences for the costs of litigation for universities and student unions. The Minister will no doubt say that that is a matter for the courts but, in the interest of clarity, I would welcome the Minister setting out her understanding of how damages might be awarded for non-pecuniary claims in freedom of speech cases.

For example, will the director for freedom of speech and academic freedom or the Government be setting cost guidelines for the courts to follow; or is it the Minister’s expectation that the courts will follow pre-existing costs guidelines, such as those used in discrimination cases? It is worth flagging that, if the courts were to follow such guidelines, the most egregious cases of non-pecuniary loss arising from a breach of a freedom of speech duty could cost a student union or university up to £56,200 per individual claim, in addition to any further litigation costs, which I am reliably informed range from £75,000 to £125,000.

Members of the House may want to consider, in the context of their local higher education providers, how such costs may detract from the student experience, given the financial pressures across the entire sector. Such monies would be better used to support hardship funding and welfare support, given the rocketing number of mental health cases they are seeing.

The second plank relates to the opt-out of the last resort mechanism for injunction-only claims. The amendment creates an exemption from the last resort mechanism put in place by the Lords for claims exclusively seeking an injunction. It is worth noting that the underlying purpose of the last resort mechanism was to prioritise university internal processes, the Office of the Independent Adjudicator for Higher Education, the Office for Students Free Speech Complaints Scheme and the director for freedom of speech and academic freedom. The Government amendment potentially paves the way for that purpose to be inverted.

In effect, the amendment creates a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach. Was that unintended or intended? Regulatory investigations and internal processes rightly and understandably take time. When competing freedoms are at play, such care is to be expected. While the circumstances in which a court may grant an injunction could be narrow, for vexatious claimants with deep pockets, the amendment invites them to try their luck.

I note Lord Willetts sought to ensure the tort was “sensibly targeted” through his amendment, presumably to limit such vexatious claimants. Does the Minister believe her amendment opens the scope of the tort back up again? What justification does she have for doing that? Has the Minister met Lord Willets, a Conservative peer, to discuss this? I am sure he would welcome such a discussion. As for process, the Minister claims she is

“confident that this will not create a further burden on the courts”.

She plainly omits reference to the burden on institutions and student unions.

We all know that litigation is generally expensive and time consuming. It can soak up management bandwidth, detracting from the ability to focus on more important issues, most obviously the staff and student experience. Anything that risks an increase in the use of litigation in this context is therefore to be greatly cautioned against. In that vein, I urge the Minister to provide greater clarity on how her amendment will keep vexatious claimants at bay, will ensure the protection of institutional autonomy and regulatory processes, and will not expand the scope of the tort to the detriment of the student experience.

No doubt the Lords will be able to scrutinise this with more vigour than one hour’s protected time allows us to scrutinise it today, and they should do so with good reason, for there are many outstanding questions. What expectation do the Government have regarding the scope for damages available for claims for non-pecuniary loss resulting from a breach of the freedom of speech duty? What circumstances does the Minister envisage that would warrant the use of an injunction, and how would those circumstances justify tampering with the orderly progression of a complaint through established complaints mechanisms? What assessment have the Government made of the effect of their amendment on the ability of higher education providers and the Office for Students to deal with complaints before they escalate into litigation? We should remind ourselves that we have a very expensive director of freedom of speech who is about to join the Office for Students; one wonders whether this person will become unnecessary.

It has taken two years for us to get to this point, but the Government seem determined to divide Parliament after consensus—an agreement between Ministers and the Opposition—has been reached in the other place. It says much that this issue, and specifically the matter of the tort, is being reopened once again.

I admit to having a sense of déjà vu, because I think this is the third time I have made a speech defending the sharp end of the Bill—which is, of course, the provision allowing students, academics and visiting speakers who have had, or are about to have, their freedom of speech curtailed to bring a claim against a university in court. Most cases can, will and should be settled through the Office for Students’ complaints process, but that could take months. There will be circumstances in which quick recourse is needed, for example when a speaker’s event the next day is due to be cancelled.

The Lords have tried to remove the tort. They have tried to water it down with the requirement to exhaust the complaints procedure first. That is why I initially tabled an amendment for consideration today to ensure that students and academics could still apply to a court for injunctive relief if necessary. However, I am very glad that the Government have tabled their own similar amendment; I have withdrawn mine, and will of course be supporting the Government. I thank the Minister for her commitment to the Bill and its original policy aim, and to freedom of speech. It would have been easy for her to capitulate to their lordships on this matter, and it is to her credit that she has not only identified the damage that the Lords amendments would have done to the success of the legislation, but has actively engaged with academics, Back Benchers and ministerial colleagues to ensure that the Government defend their legislation.

Retaining the full use of the tort is vital to the success of the Bill. After all, the Bill’s aim is not to enable people to sue universities—no one wants that to be the mainstream course of action—but to deter universities from reneging on their free speech duties in the first place. Essentially, we want the Bill to have a deterrent effect to help universities to stand up to those who wish to cancel certain viewpoints by providing for clear boundaries and swift consequences if they fail in their duty to free speech. Facing a long Office for Students complaints process is no deterrent against cancelling an event due to take place tomorrow, but the potential for court action is. Creating a liability risk for universities that neglect their free speech duties is the most effective way to ensure that free speech is always factored, substantively, into decision making.

I am not a free speech absolutist, and of course there should be speech that is illegal, such as racist speech and speech inciting violence. Everyone should take responsibility for what they say, and I believe that anonymous speech is a largely detrimental development in today’s culture. However, the freedom to voice opinions and present evidence, however controversial those opinions and that evidence may be, is a foundation of democracy. Authoritarian regimes, not democracies, censor speech, and when mainstream, evidence-based views, such as the belief in the importance of biological sex or the belief that immigration should be limited—for which my hon. Friend the Member for Bracknell (James Sunderland) was cancelled last week—are being shut down in our universities, we have a problem that needs to be addressed. Our brightest future minds, the young people in our universities, deserve to have an education that helps them to become robust, inquisitive, and appropriately sceptical of new ideas. They will become robust only if they have the opportunity to hear a whole spectrum of opinions and ideas and to learn that being offended is not an injury but an opportunity to learn and mature. We do our young people no favours by pretending that they need protecting from ideas and facts.

The shadow Minister, the hon. Member for Warwick and Leamington (Matt Western), spoke about the mental health crisis that some of our students face. I agree that there is a crisis in mental health among our young people, but the American psychologist Jonathan Haidt links that crisis in mental health with cancel culture and the over-protection of children in schools and universities from viewpoints and ideas that might hurt their feelings. His book confirms my belief that being exposed early on to viewpoints that we might disagree with and want to argue against helps us to become robust and makes us less likely to be injured and have hurt feelings when we come across views that are different from our own.

Those are the kinds of people that we want to be the future leaders of society, and the culture that starts in the universities always makes its way into mainstream culture. That is the point of our higher education institutions, so the Government are absolutely right to protect their policy aim of ensuring free speech in universities. That will be to the benefit of everybody in this House across the political divide and of future generations. It does not just protect one particular viewpoint; it protect everybody’s viewpoint.

I thank the House for today’s debate, which demonstrates the full benefit of open discussion and free speech. I will touch briefly on some of the points raised. The hon. Member for Warwick and Leamington (Matt Western) said that he thought this was driven by the Common Sense Group’s views, but in fact it has been driven by the conversations we have had with academics who have been targeted for sharing their views on campus. They are the people at the forefront of our mind. In our last debate, I suggested that the hon. Gentleman might like to speak to some of them. I would be delighted to relate my conversations with them, but I think he should speak to them as well.

The hon. Gentleman talked about how we would assess costs, and he is right to say that that is a matter for the courts. That is well established. He also spoke about the cost to universities, but it is very simple: if universities would like not to have to spend money on redress, they should simply uphold freedom of speech. He mentioned Lord Willetts, and like everyone whom the Bill concerns, we have been talking to people right across the spectrum as we have moved through this process, and I am confident that people will see that we have come to a good place in our amendments. He also asked whether the money would be better spent on the staff and student experience, but I ask again: should not the staff and student experience of university be one in which they are exposed to different views and can speak freely and debate controversial ideas? Is that not fundamental? That is exactly what the Bill is trying to uphold.

The hon. Gentleman asked about examples of where we might want to use an injunction. An example of where we might want to see swift redress is if a student has been kicked off their course and they feel that their freedom of speech rights have been impinged on. We would want to deal with that quickly so that they can get back on their course and resume their learning swiftly. That been widely agreed on in our conversations as a reasonable example.

I thank my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates). She is absolutely right about building young people’s resilience. Exposing them to different views is a key part of growing up, and it is something that we all use as we go into adult life.

We remain convinced that the right to go to court is crucial as a way of enforcing the new duties in the Bill and providing redress for those who have had their rights unlawfully restricted. I am thrilled that both Houses now accept that the tort should be part of the Bill. I believe that in accepting amendments 10B to 10D as agreed by the other place, together with the inclusion of the Government amendment we have discussed today, we will have reached the right position to ensure that freedom of speech and open debate remain central to university experience.

Question put and agreed to.