Higher Education (Freedom of Speech) Bill dealt severe blow in House of Lords vote

Peers voted on Wednesday night?to scrap Clause 4 of the Higher Education (Freedom of Speech) Bill, which would have created?a statutory tort to enable academics and students to sue universities and students’ unions for compensation if they’d breached their new duties to protect free speech on campus, as set out in the Bill (Telegraph,?Times Higher).

Two weeks ago, in a?letter?coordinated by the FSU and sent to the Education Secretary Gillian Keegan, more than 50 academics urged the Government not to get rid of the tort in response to intense lobbying from the higher education sector (Telegraph). We think our letter helped to dissuade the Government from scrapping the tort altogether, although its subsequent defence of its own provision could hardly be described as Churchillian. In an attempt to strike a compromise with the Bill’s critics, the government tabled an amendment in the Lords that would require academics and students to only seek compensation in the courts as a last resort, after first pursuing complaints through the procedures of the relevant university and the higher education regulator (the amendment can be found?here, close to the top of page 3). We were unhappy about that. Our position is that the new statutory tort is what gives the legislation’s new free speech duties teeth, and if that’s reduced to a weapon of last resort, the Bill is essentially a dead letter.

However, the Government’s compromise was rejected by the Lords, which voted on Wednesday night to get rid of the tort by a margin of 213 votes to 172. According to the?Telegraph, Lord Willetts, a former Conservative universities minister – and now Chancellor of the University of Leicester – argued that new powers to enable academics and students to sue for breaching their freedom of speech rights “would be overly burdensome for universities and were unnecessary for protecting free speech”.

On the question of whether Clause 4 is necessary, Lord Moore had this to say during the?Lords debate: “There are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right.” His point was that “there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time”. Baroness Fox felt much the same way. “Look at the Free Speech Union’s case files,” she?said: “There are hundreds of examples of students and academics who’ve been suspended and gone through disciplinary procedures by university authorities for misspeaking, or saying the wrong thing.” Had these people been able to sue universities for breaching their right to free speech, she argued, they probably would have been treated a lot better.

As to Lord Willett’s claim that Clause 4 is overly burdensome, it sounds no more impressive now than it did when the higher education lobby first came up with it. Writing in?The Times?three weeks ago, for instance, Dr Tim Bradshaw, head of the Russell Group of Universities, bemoaned the fact that?“the bill will… create a new right to pursue civil legal claims without adding basic protections to reduce the likelihood of frivolous actions”.

Criticisms of this kind seem oblivious to both the legal architecture proposed by the draft legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.

The first port of call under the Bill for anyone who believes their right to free speech has been infringed will be a specialist adjudicator (the new free speech champion at the Office for Students) who will deal solely with university free speech cases.?This is intended as an informal, inexpensive, and less risky alternative to the court route, similar in many ways to the Office of the Independent Adjudicator, which deals with students’ complaints.

It’s true that the Bill – as written – would also have provided an alternative remedy in the County Court, but because the Bill will forbid a complainant from running the same case simultaneously through the courts and the OfS it is likely that a judge would pressure any claimant to exhaust the OfS route before proceeding with a claim – and the claimant would risk significant adverse costs if he or she then proceeded with the case.

What critics like Lord Willetts also seem not to understand is that the courts assign cases to various ‘tracks’ depending on the value of the claim. This aims to ensure the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him might be put on the County Court small-claims track. An academic dismissed from her well-paid professorship might well be assigned to the High Court.

These really aren’t difficult points to grasp, even for those of us limping through life with only one brain at our disposal. (Lord Willetts’s nickname when a Tory minister was “Two brains”.) Yet they never seem to gain much traction. It’s almost as if universities don’t want students and academics to be able to sue universities if their speech rights are violated, because then they might have to put their house in order and start pushing back a little more effectively against the worst excesses of campus cancel culture.

According to the?Telegraph, Clause 4 is now “under threat”, although FSU General Secretary Toby Young says the situation represents a lobbying opportunity for those of us who want to restore the tort to its original form. Speaking to the paper, he said: “The Government amended the Bill to defang the statutory tort in the hope of winning round its critics in the Lords. Plainly, that hasn’t worked, so I very much hope the Government will restore the statutory tort in its original form when the Bill returns to the Commons.”

MPs will consider the Lords’ amendments when the bill returns to the House of Commons next year.

***

If you think there’s a risk you’ll be penalised for exercising your legal right to free speech, whether it’s in the workplace or the public square, you need the protection of the Free Speech Union. Membership starts from just ￡2.49 a month. You can join us?here.?

Alternatively, if you'd like to donate to help support the work that we do, you can click?here.