Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Consideration of Commons amendments
Wednesday 10th May 2023 Lords Chamber

Moved by

[Earl Howe]

That this House do not insist on its Amendment 10E to which the Commons have disagreed and do agree with the Commons in their Amendment 10F in lieu.

10F: Page 6, line 27, at end insert—
“(2) In subsection (1), “loss” means loss of any kind (pecuniary or non-pecuniary).
(3) A person may bring proceedings under subsection (1) only if—
(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and
(b) a decision has been made under that scheme as to the extent to which the complaint was justified.
(4) Each of the following is a “relevant complaints scheme”—
(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and
(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).
(5) Subsection (3) does not apply where the civil proceedings under subsection (1) are for an injunction only.”

[Earl Howe (Con)]

My Lords, we return to consider the Higher Education (Freedom of Speech) Bill for what I hope will be the final time. I thank noble Lords once again for the insightful debates that we have had on this important Bill, which is designed to ensure that the higher education sector in England is protected from the chilling effects of cancel culture which have been taking hold on campuses and in other areas of our society.

As noble Lords will recall, the statutory tort has generated some animated debate in this House. I am glad that we have now all agreed that this crucial measure should remain part of the Bill, though the final wording remains for consideration. On 2 May, the other place accepted this House’s Amendments 10B, 10C and 10D, which noble Lords voted to include in the Bill on 21 March. Mirroring Amendment 10E and building on these amendments, the Government tabled further amendments which seek to satisfy both Houses as well as academics and advocates of free of speech. These are what are now before us to consider.

The proposed new subsection (2) deals with an issue that we have discussed in this House before, in response to an amendment tabled by the noble and learned Lord, Lord Etherton. I said on Report that loss

“is not limited to pecuniary loss and could include damage to reputation, for example”.—[Official Report, 7/12/22; col. 207]

This amendment simply makes this point clear in the Bill. Proposed new subsections (3) and (4) mirror this House’s Amendment 10E, and (5) adds a helpful nuance to our already agreed position, that civil proceedings should be a last resort once the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education have been exhausted.

Some Members of the other place expressed concern that the Bill, as returned to them from this House, would prevent individuals from seeking an injunction where swift action is required to rectify a breach of the specified freedom of speech duties. For example, if a student is expelled from their course by a higher education provider because of a freedom of speech issue, this amendment would mean that the court could make an order requiring the provider to let the student back on the course immediately, thereby avoiding the need for the individual to put their life on hold and delay pursuing their studies, which would otherwise ensue.

In a case such as this, a recommendation made by the OfS or the OIA may simply come too late to avoid such damage. We believe that such cases are likely to be rare. Seeking an injunction is financially costly. Injunctions are a discretionary remedy and the courts do not grant them easily. We are clear that the overwhelming majority of complaints that allege a breach of the freedom of speech duties will proceed, as has always been envisaged, via the schemes that are operated by the OfS and the OIA. I hope that noble Lords will therefore accept the amendments from the other place, so that this Bill can proceed to Royal Assent. I beg to move.

[Baroness Lawlor (Con)]

My Lords, I seek some clarification of the new subsection (3)(b) proposed in Amendment 10F, which provides:

“A person may bring proceedings under subsection (1) only if … a decision has been made under that scheme as to the extent to which the complaint was justified”.


I seek clarification that an institution cannot delay the proceedings of decision-making indefinitely, because some institutions have quite a number of funds at their disposal and quite good administrative back-up, whereas an academic making a complaint and taking a tort action may be alone and without the same back-up. I hope that there is some provision for a time limit on an institution reaching a decision.

--- Later in debate ---

We wish this legislation well and all of us hope that, as a result, we see freedom of speech in our universities even more strongly protected than it is at the moment.

[Earl Howe (Con)]

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.