Higher Education (Freedom of Speech) Bill

Debate between Lord Grabiner and Baroness Thornton

Consideration of Commons amendments
Wednesday 10th May 2023 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for his introduction of the government amendment in lieu and Amendment 10F.

When the Bill left this House with the amendments, led by the amendment tabled by the noble Lord, Lord Willetts, which was supported from these Benches, it was the Government’s own amendment at an earlier stage, aiming to mitigate the risk of legal action, and that civil proceedings should be the last resort, upon which we all agreed. Since then, the Government have amended the clause in question. The Minister explained why the Government have felt that it was necessary to do that. However, the amendment may create a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach, and it cannot possibly be the intention for this additional amendment, added in the Commons, to open doors to unintended consequences. I would like the Minister’s clarification on this because it seems that this amendment at best muddies the waters, and it might be dangerous. I would like his reassurance on that matter.

[Lord Grabiner (CB)]

My Lords, when this Bill left your Lordships’ House, it seemed that through the amendment tabled by the noble Lord, Lord Willetts, we had achieved a reasonable and workable compromise. Sensibly, the Government had accepted as axiomatic the principle that the person complaining that their freedom of speech had been unlawfully interfered with would first have to exhaust the regulatory complaints procedure before being permitted to commence civil court proceedings. The key amendment that we are now presented with will, I am afraid, blow away that compromise. These amendments will positively encourage civil court proceedings. For practical purposes they abandon the priority point, to the extent that the complaining party need not complete the regulatory process before commencing injunction proceedings. Indeed, the complainant would be entitled to ignore the regulator altogether and proceed directly to the court and seek an injunction.

I should make that criticism good by reference to the wording that has been presented to us. First, there is now an extended definition of “loss” which means loss of any kind, pecuniary or non-pecuniary. Through our previous debates, it has become obvious that a typical complainant would be hard pressed to show even nominal pecuniary loss resulting from a breach of the new duties imposed by the Bill. That is one of the reasons for the original objection to Clause 4 and why breaches of these duties should be dealt with by the Office for Students as the regulator and not by the courts.

The introduction of the concept of non-pecuniary loss suggests damages for emotional, mental or psychological distress. Again, however described, this is unlikely to produce significant damages figures, but express reference to it in the statute will be an encouragement to suitably motivated claimants to use the civil courts against universities, colleges and student unions. By itself, that would be tolerable, so long as the priority position were left in place.

Secondly, the troubling aspect of the amendments is in government Amendment 10F, to which reference has already been made, and in particular proposed subsection (5), which would displace the priority principle and expressly give the claimant the entitlement immediately to sue in court for an injunction. In my view, the claimant need not even bother to invoke the regulatory process. The claimant would be free to ignore the regulator and go straight to court. That is why I suggest that the sensible compromise previously achieved would be blown away if the Bill in this form became law.

For the record, I should make three further points. I will make them very briefly. First, our universities, colleges and student unions should not be subjected unnecessarily to the expense and unpleasant burden of court proceedings when we have an experienced statutory regulator in place. Secondly, many noble Lords—I am one of them—believe that ill-motivated troublemakers will be encouraged to invoke these provisions. We should not be encouraging divisive litigation or inappropriate use of the already clogged-up court lists.

Thirdly, the important purpose of the Bill is to encourage and improve the state of free speech in our universities and colleges. All sensible people support this excellent objective. That said, if the Bill in this form becomes law, universities, colleges and student unions would be well advised to make sure that no controversial speaker is ever invited to address the students: why would they take the risk? As a result, and ironically, freedom of speech will be undermined and not enhanced, and we will never be able to measure the extent of that damage.

I did not want my whinge about Clause 4 to be left stuck in my craw, but I also recognise that there is no appetite for more ping-pong on the Bill.

Higher Education (Freedom of Speech) Bill

Debate between Lord Grabiner and Baroness Thornton

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Baroness Thornton (Lab)]

My Lords, I am not going to say very much because this debate has covered most of the ground that we need to cover on how this issue should be decided. However, I always listen to the noble and learned Lord, Lord Hope, very carefully. When he says that simplicity is best, that is probably right. We definitely find Amendments 33 and 54 to 56 the more attractive amendments. As my noble friend Lady Chakrabarti said, they are the common-sense amendments. I am more attracted to them than to Amendment 31 in the name of the noble Lord, Lord Moylan.

This debate has shown, and I agree with those who have said so, that while the words in the noble Lord’s amendment are of course very laudable, actually it is the words that go in the Bill and create the law that are important. That is our job here in this House. It is certainly not our job to put words into legislation that might create more confusion and proclaim values at this stage. The Minister will probably tell us how the Government feel about that. My noble friend Lord Smith outlined in the earlier debate what a hard job the leaders of our universities have in balancing their duties and rights. That was amplified by the noble Lord, Lord Willetts, when he spoke to his amendment.

In reflecting on the remarks of the noble Lord, Lord Moylan, I do not think that this amendment would have stopped what happened to Kathleen Stock. That was a failure of the leadership of her university to fulfil their duty of care to her and their need to promote free speech in their institution. This amendment would not have stopped that, because it is to do with how that university conducts itself.

[Lord Grabiner (CB)]

My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.

I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.