Statutory tort restored to Higher Education (Freedom of Speech) Bill in big free speech victory

The Lords Amendments to the Higher Education (Freedom of Speech) Bill were debated in the House of Commons this week, and there was a terrific outcome for academic freedom, viewpoint diversity and freedom of expression at English universities. Following the Government’s announcement earlier in the week that it would support the statutory tort in the bill as originally drafted, Lords Amendment 10 – which sought to remove the right of students and staff to sue universities that breach their speech rights in the County Court – was rejected at division by 283 votes to 161! (Times Higher ).

This is a big victory, and it’s thanks in no small part to the thousands of FSU members and supporters that used our digital campaigning tool to email their MPs urging them not to dilute this important Bill. Indeed, the fact that 283 MPs ended up walking through the Division Lobby in support of the Government’s?proposal ?to reject Amendment 10 is testament to the impact that our campaign work is having on our elected representatives.

In technical, legislative terms, clause 4 of the legislation as drafted creates the statutory tort which will allow aggrieved parties to take legal action. In the FSU’s view, it is this tort which gives the legislation’s new free speech duties teeth.

Claire Coutinho, the Under Secretary of State for Education and the minister responsible for the Bill, is the member of the Government we have to thank for restoring the tort. Writing in the?Telegraph , she said it “will allow those who have suffered any loss – financial or otherwise – to seek redress through the courts where needed. I’ve spoken to many leading academics who share my belief that the tort is necessary to secure the?cultural change needed on campus.”

Sadly, however, it was this aspect of the legislation that met with strong opposition in the House of Lords, where critics voted to strip out clause 4 in its entirety, as per Amendment 10 alluded to above. Their main criticism of the tort was that it would subject higher education providers to costly, time consuming and unmeritorious or vexatious claims.

Speaking during the debate, John Hayes was distinctly unimpressed. It was “disappointing”, he said, that the “academic establishment in the other place” had wanted to scrap clause 4, but not particularly surprising “because of course these people look after their own”.

Among the MPs who rose during the debate to support the Government’s decision to reject Amendment 10 was Miriam Cates. In a terrific speech, she pointed out that the tort will enable staff and students whose free speech rights are infringed to seek “rapid redress in a financially affordable way”. Without it, she said, “the free speech protections in the Bill could be enforced only by an independent regulator, which would likely result in dispute resolutions taking months, or by bringing a judicial review against the university in question, which is prohibitively expensive for almost all students and academics”.

Danny Kruger also took the time to say how “impressed” he was by Claire Coutinho for bringing the tort back in its original form. “She has resisted the academic establishment in the universities… to stand up for the principle of free speech and the importance of the tort,” he said. John Hayes agreed. It must have taken “determination, insight and… a degree of courage”, he said, “because it is easy to roll over when the big beasts in the other place roar in defence of the academic establishment”.

It’s also worth saying that the FSU is aware of dozens of academics who’ve been at the sharp end of cancel culture in British universities that have contacted Ms Coutinho over the past few weeks to tell her why they think the tort is essential. It is greatly to her credit that she has listened not to the academic establishment, but to the many academics who are not currently speaking their minds or pursuing important research topics, simply for fear of being ostracised by their peers or left at the mercy of university authorities that use all kinds of techniques to silence them.

***

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 .