Clause 4 Civil claims 4.55pm The Parliamentary Under-Secretary of
State for Education (Claire Coutinho) 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...Request free trial
Clause 4
Civil claims
4.55pm
The Parliamentary Under-Secretary of State for Education ()
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 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.
Sir (New Forest East) (Con)
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.
(Bracknell) (Con)
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.
(Warwick and Leamington)
(Lab)
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.
Sir
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.
(Penistone and Stocksbridge)
(Con)
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. , 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 ). 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
. 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 . 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 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.
5.15pm
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 () 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
(), 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 () 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 , 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
(). 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.
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