Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

I signed the clause stand part proposal from the noble Lord, Lord Willetts. The signatures to it reflect the point that I made at the beginning: this is a non-partisan debate, and it reflects opinion right across the House. I hope that the Minister will listen very carefully, because I would rather him come back and say that there are points on the regulator that the Government want to improve, there may be things that they will change over a period of time, and they will review the Act—if it becomes an Act. But this clause would open the door to courts and litigation that will undermine any good work that the regulator attempts to do, and the debate has shown very clearly that it needs to go.

[Earl Howe (Con)]

My Lords, as noble Lords have indicated, today and at Second Reading, the issue of the proposed new tort is one that has given rise to a number of doubts, questions and worries, which I shall do my best to address. Whether I can entirely assuage those concerns remains to be seen, but I hope that noble Lords find what I say to be helpful at this stage.

Amendment 48 from the noble and learned Lord, Lord Etherton, seeks to make it clear in the Bill that a claim under the tort against a higher education provider or college can be brought only by the individuals specified under new Section A1(2), namely those whose freedom of speech is protected under the Bill. The amendment would also make it clear that such a person must have suffered loss in order to bring a claim. I can confirm without hesitation—and I hope that it is helpful for me to place on the record—that we intend for the new statutory tort to operate as the amendment suggests, which is the usual approach under tort law. This is reflected in the Explanatory Notes.

For someone to make a successful claim via the tort against a provider, the claimant would need to be able to show that the provider owed them a duty of care. Only the class of individuals specified in new Section A1(2) would be able to demonstrate that the provider owed them a duty of care. This is not a question of demonstrating standing to bring a claim, rather a question of demonstrating that they were owed a duty of care—a more limited group that would not, incidentally, include pressure groups.

As for the need to demonstrate that they have suffered loss, the claimant would need to point to a genuine loss that they had suffered as a result of the breach of the freedom of speech duties in new Section A1 in order to claim damages. If we bear in mind that only a person specified in new Section A1(2) could bring a claim, we 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 injury to feelings and not a monetary loss. I come back to the point I have made before, which may be helpful to the noble Baroness, Lady Fox: we intend the tort to be a backstop, particularly for those situations where an individual disagrees with a recommendation that has been made.

I understand the concern of the noble Lord, Lord Grabiner, that Clause 4 should specify that compensation can be awarded by the courts. There are, as he rightly said, some statutory torts where it specifies this but also torts that do not: for example, Section 138D(2) of the Financial Services and Markets Act 2000. The principal remedy for tort is damages, although, as the noble Lord will know, an injunction and other remedies may also be available. An injunction, for example, could require that a student is readmitted on the course which a provider has removed them from, so we would certainly want a court to be able to order that, if appropriate.

The remedies available for the tort of breach of statutory duty are the same as for tort generally, subject to the intention of the relevant statute. Where the legislation itself provides a remedy, the question may arise whether it is tended to be additional to the general remedies available under the law or instead of them. Where the legislation provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. Given this, we think that it is not necessary to specify that compensation is available; it could, in fact, unintentionally limit the court’s powers.

Amendments 49 and 52, tabled by my noble friend Lord Sandhurst, seek to allow the employment tribunal to determine claims brought by academic staff members under the new statutory tort and to make dismissal for exercise of academic freedom automatically unfair. The consequential amendment removes the qualifying period for unfairly dismissed academics and the cap on the compensatory award, and it allows the tribunal to order interim relief. The Bill does not prevent academic staff bringing claims before the employment tribunal, which may take into account a breach of the freedom of speech and academic freedom duties, if it is relevant to a claim before it. Under the current employment law framework, the two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff. Where an employee does not have two years’ service, it is still possible to bring a claim for wrongful dismissal in the civil courts.

In answer to the noble Baroness, Lady Falkner, in particular, the Bill in fact broadens the range of people covered by the existing freedom of speech duties to ensure that all staff within a provider, college or students’ union have protections and can seek redress where duties are breached. The new duties give particular protection to academic staff, including those who may not have employee status or have been employed for less than two years. It therefore broadens the scope of the current provision to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging without the risk of losing their post, privileges or prospects.

The Bill gives specific jurisdiction to the courts to consider claims for breach of a statutory duty, as well as setting up a new complaints scheme. I say to my noble friend Lord Willetts that we think that this is a proportionate approach. Academic and non-academic staff will have sufficient routes for redress, without the need to amend employment law as proposed.

Amendment 50, also tabled by my noble friend Lord Sandhurst seeks to make clear in the Bill that the tort should be only a remedy of last resort and that individuals should first exhaust the free route of redress of the Office for Students complaints scheme. Under the amendment, the court would be able to stay the claim on the application of the defendant. We expect that most complainants will choose to use the complaint scheme of the OfS—or students may wish to go to the Office of the Independent Adjudicator for Higher Education—before considering going to court, as no costs are involved in lodging a complaint.

The noble Lord, Lord Grabiner, spoke of mischief-makers. We consider that the tort is unlikely to lead to higher education providers, colleges and student unions having to deal with a large number of unmeritorious claims. A claimant would need to be able to show that the defendant owed them a duty of care, and they would need to point to a genuine loss that they had suffered as a result of a breach of the freedom of speech duties, as I described. In the case of an unmeritorious claim, the claimant would struggle to make their case. In addition, an unmeritorious claimant would risk having to pay substantial legal costs as a result, not only their own but potentially also the legal costs of the defendant. This, together with the availability of free routes for seeking redress, means that we expect the tort will likely be used only as a backstop.

[Lord Grabiner (CB)]

Does the Minister think it appropriate that there should be left in place two possible routes for a complainant—a regulatory route and a Clause 4 route—without there being any guidance whatever in the legislation as to who should or should not go first? At the moment, the Minister is saying, by way of assertion without a scrap of evidence to support it, if I may respectfully say so, that the expectation is that people will use the regulatory procedure first if they are going to make a complaint. At the moment, the legislation does not cater for that problem. Is he satisfied with that?

[Earl Howe (Con)]

My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.

It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.

However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.

--- Later in debate ---

[Lord Grabiner (CB)]

I apologise: it is probably my fault because I did not convey the point of the noble and learned Lord, Lord Hope, as clearly as I could, and perhaps should, have done, and certainly not as clearly as he inevitably would have. It is not about the earlier 1980s legislation; the fact is that the Bill, if it becomes law, will contain brand-new statutory duties. It is those duties that, if broken, would give rise to the course of action we are talking about.

[Earl Howe (Con)]

I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.

I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.

I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.

[Lord Collins of Highbury (Lab)]

A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.

[Earl Howe (Con)]

The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.

[Lord Macdonald of River Glaven (CB)]

My Lords, perhaps I might ask the Minister to consider this. He mentioned earlier in his remarks that the question of pressure groups was not really relevant because they would not be an entity to which a duty of care was owed. The problem with pressure groups is their willingness to fund litigation on the part of other people: I think that is the relevance. Would the Minister care to reflect on that?

--- Later in debate ---

[Earl Howe (Con)]

I take that point absolutely. I was not seeking to say that someone well funded by a pressure group could not, in certain circumstances, have recourse to the courts. It was simply a point made about pressure groups in themselves.

[Lord Etherton (CB)]

I am very grateful to the Minister for dealing with the range of issues that have arisen. So far as my own amendment is concerned—as I have made clear in the past—it is very poor drafting to leave out major provisions that should be going into the Bill and leave it to a statement of the Minister at the Dispatch Box or to be found in the course of reading the Explanatory Notes. I do think my amendment should be put into a proper form in the Bill itself, if necessary by a government amendment.

If, as I think the Minister referenced, it is envisaged that the courts will be able to give remedies other than compensation, again, that is a very important consideration. I would want to consider very carefully whether it is appropriate for the courts to have to find a suitable remedy other than damages in a particular case, so I would very much welcome an appropriate amendment that we could all see if this provision is to remain in the Bill. Subject to that—and I am very happy to have meetings with the Minister to discuss these matters—I beg leave to withdraw my amendment.