Higher Education (Freedom of Speech) Bill (Second sitting)

John McDonnell Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Matt Western]

Q To come back to my opening question about unintended consequences, what we have heard a lot from various people and prior to these sessions is about the uncertainty and the real fear out there that employment contracts may get shortened and the insecurity of tenure in employment at universities will become greater. In your professional view, Ms Jamdar, is there any risk that the tort could be used to circumvent employment law?

Smita Jamdar: I am not sure I follow in what way the statutory tort would circumvent employment law remedies. What I can see is that if you present any institution that has a duty to safeguard its resources, to manage them effectively, to deliver them in most cases for a charitable objective—education and research—with a risk that they could be sued at any time, they are going to look for ways of minimising that risk before it happens. It is too late once you are already in court. There are all sorts of challenges to getting yourself out of court very quickly.

The concern would be that governing bodies, who are rightly there to try to make sure that the assets are used for the proper purpose and not diverted to unnecessary litigation, take steps to introduce preventative measures. I hesitate to use this phrase because I know it has been used a lot already in this discussion, but it creates another sort of chilling effect, which is risk aversion on the part of institutions, who say, “Actually, I need to manage this risk and therefore I am going to take whatever steps I need upfront to reduce the likelihood of someone challenging me.”

I am talking on behalf of universities because they are my client base, but if you looked at student unions and particularly the fact that they may not have as many resources to start with, they too may start to feel that they need to find ways of reducing the opportunity for problems to arise, rather than doing what I think we would all prefer them to do—create an environment where lots of conversations are happening and lots of debate and discussion is taking place.

[John McDonnell (Hayes and Harlington) (Lab)]

Q I want to seek your advice about another piece of the Bill: subsection 12 of clause 7 about the review that will take place. It states:

“This paragraph applies if the Secretary of State requests the OfS to—

(a) conduct a review of the scheme or its operation (or any aspect of either of those matters), and

(b) report the results of the review to the Secretary of State.”

We are not sure about what the contents of that review will be and we have not seen any guidance on that yet, but I would expect it to start looking at cases—potentially individual cases. We could get into a situation where individuals are named as a part of that review, because we are talking about the operation of the scheme.

Clause 7(13) states:

“For the purposes of the law of defamation, absolute privilege attaches to the publication of—

(a) any decision…and

(b) any report”.

I raise this point about this particular legislation because, although I can understand why privilege is awarded to Ministers, Secretaries of State and others in certain instances, we could be in a situation where individuals could be named, and in a way that could affect their whole careers and lives, without having any ability to take action with regard to anything defamatory that is said about them. It seems to narrow down the ability to secure redress and, for me, that cannot be right in any piece of legislation, particularly when we are talking about individual rights. What is your view on that?

Smita Jamdar: That raises a problem that permeates the Bill. We are often talking about essentially legal judgments, because we have to judge whether speech is within the law or outside the law. You can see a situation where somebody wants to say something that somebody else regards as defamatory, and therefore says, “You can’t say this about me.” It goes off to the Office for Students, who, on some basis—I have to say it is not clear to me—is supposed to form a view on whether or not the statement was or was not defamatory, and then it will publish a report on that.

The OfS is protected under this legislation, because it has that absolute privilege, and the Ministers are protected, but in some ways what you will have done is taken the original defamatory statement and published it more widely, as far as the individual is concerned.

To my mind, if you want to resolve these matters through a legal lens, you should go to court and court will decide. I am not sure how the OfS would have the expertise to do it and therefore there is a risk that what it then publishes does not necessarily protect the rights of the individuals who are either named or identifiable through the reporting.

[John McDonnell]

Q I use this example. For a number of years I was in local government, as both an elected member and a civil servant. There have been cases within local government, such as inquiries with regard to the involvement of directors of social service in individual cases. Even though there have been inquiries and published reports, those reports have never had absolute privilege. There has always been the right of that individual to go to court to resolve any matters, including any elements where they thought they had been identified or any comments about their actions were seen as defamatory. I have not seen this before in legislation. Is it common?

Smita Jamdar: I do not know if I can answer whether it is common or not; I am not a defamation expert. From memory, there is something similar in relation to the OIA under the Higher Education Act 2004. If it is okay, I will check that after this and let you know in writing. If it exists, that would be the only place that I have seen it before.

[John McDonnell]

Q How will people have redress under this? If they were defamed, is there any right of redress? Is there any method of redress where there is absolute privilege like this?

Smita Jamdar: Again, that is something I would have to try and work through in my mind. If it is okay with you, I will give a written response to that.

[John McDonnell]

That would be really helpful.

[Fiona Bruce (Congleton) (Con)]

Q Good afternoon. Can I take you to the very first clause and the wording “reasonably practicable”? Do you think the duty to take “reasonably practicable” steps to secure freedom of speech is adequate? That phrase is used both for the governing bodies of an institution and for student unions, particularly bearing in mind that it is the same phrase that was used over three decades ago in the Education (No. 2) Act 1986. How do you think this Bill will change what, as we heard in this morning’s evidence session, is really an inadequate situation for many academics and students?

Smita Jamdar: The phrase “reasonable practicability” is quite a common one used in legislation—another example of it would be in health and safety legislation—and what it recognises is that it is very difficult for somebody to ensure that something happens without any caveat, because clearly there will be things that you have no control over that are preventing freedom of speech happening. In this case, if we go back to the self-censorship point, you may not know that people are self-censoring, so how do you address that?

Reasonable practicability is actually quite a high legal threshold. It is beyond what is reasonable, for example: it is saying, “If this is something that is practically possible, then subject to a general sense of, say, cost-benefit analysis, you would be expected to do it.” It starts from that quite high threshold; it sounds like a low threshold, but actually it is not necessarily a low threshold and in this case it is enhanced by the fact that what is reasonably practicable will have to be determined by reference to the particular importance of freedom of speech. It is highlighting freedom of speech as something that is of itself important—so, having particular regard to the importance of free speech, steps that are reasonably practicable to take. I think it is strengthening the current position.

In relation to the evidence you heard this morning—I did not hear all of it, but I heard some—I would go back to the point that I made earlier, which is that I am not convinced that even this duty would necessarily address some of the things that people are talking about, because I am not convinced those things are best addressed by legislation, or capable of being adequately addressed by legislation. That would be my view.