Higher Education (Freedom of Speech) Bill

Julian Lewis Excerpts

Consideration of Lords message
Tuesday 2nd May 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Education (Claire Coutinho)]

I beg to move,

That this House agrees with the Lords in their Amendments 10B, 10C and 10D; disagrees to their Amendment 10E, and do propose in lieu of their Amendment 10E Amendment (a) to the words restored to the Bill by Commons disagreement to Lords Amendment 10.

It is almost two years since the Bill was introduced to the House in defence of the fundamental principle that students and academics should be able to express their beliefs and debate controversial ideas without fear of repercussion. We return to the House to resolve the final element on which we seek agreement: the form that the statutory tort takes in the Bill. The tort is the measure that will allow people to bring civil proceedings where they believe that certain duties in the Bill have been breached to their detriment. Since I last brought the Bill before the House, the other place has accepted the inclusion of the tort in principle. That is a huge step forward and a significant victory for freedom of speech on campus.

In February, this House voted to reinstate the tort in full following its removal in the other place. In March, the other place accepted the need for the tort but sought compromise in the form of amendments identical to those tabled by the Government on Report. That is the wording of the clause that we are now considering.

I want to emphasise that this is a significant shift in the terms of the debate. We are considering no longer whether the right to go to court should be included but what form it takes. However, I recognise that colleagues still have some concerns, and I want to reassure them that the two Government amendments will mean that the tort retains its teeth and offers a concrete means of redress for those whose right to free speech has been unlawfully infringed.

Proposed new subsection (2) will make it clear in the Bill that “loss” is not limited to pecuniary loss. That means that academics will be able to go to court if they have suffered, for example, reputational damage or adverse consequences to the progression of their career. Subsections (3) and (4) mirror amendment 10E from the other place. New subsection (5) will ensure that, in circumstances where speed is essential, a complainant can apply for an injunction where there has been an alleged breach of the free speech duties.

I turn to proposed new subsection (2), which builds on amendments 10B, 10C and 10D as voted for by the other place. On 7 December in the other place, my counterpart Earl Howe stated on Report that loss is

“not limited to pecuniary loss and could include damage to reputation, for example.”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 195.]

Subsection (2) simply makes that clear in the Bill. The amendment therefore reflects the original policy intent. I hope that offers reassurance to the House and that hon. Members will support its inclusion in the Bill.

I turn to proposed new subsection (5), which builds on amendment 10E as voted for by the other place as now included in new subsections (3) and (4). Amendment 10E would require claimants to have exhausted the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education before they can bring legal proceedings. Some hon. Members have expressed concern that that would prevent individuals from seeking an injunction where a breach of specified freedom of speech duties has already taken place and swift redress is sought. I share the view of many colleagues that access to the courts in those circumstances is crucial.

Subsection (5) will mean that a claimant who is applying only for an injunction will no longer have to exhaust the complaints schemes first. Those claimants will therefore have direct access to the courts. It is important to allow for that to avoid delays that may cause further harm to the claimant. If, for example, a student is expelled from their course because of a free-speech issue, it may take a long time to resolve their complaint, and damages would not be sufficient. The student would be seeking re-entry on to that course to continue their studies. In that scenario, subsection (5) will allow the student to seek an injunction from the courts as quickly as possible. I am sure the whole House agrees that that is sensible and justified.

[Sir Julian Lewis (New Forest East) (Con)]

Yes, it is an excellent change. The only question in my mind is why this rather obvious feature was not included at the beginning. Could the Minister look into that and—if not now, on another occasion—throw some light on it? It was an obvious flaw in the Bill.

[Claire Coutinho]

I thank my right hon. Friend. I think the fact that we have now included that in the Bill shows that we have worked with both sides to ensure that the Bill is as strong as possible. We have always had the academics, visiting speakers and students that it seeks to protect at the forefront of our mind.

I should reiterate that the provision concerns injunctions where there has already been a breach of the relevant duties. Where there is an anticipated breach of the duties, a claimant can apply for an injunction to prevent that—that has always been the case, since the requirement to exhaust the complaints scheme only applies in the case of an actual breach. It is important to note that we believe that this exception will apply only in a minority of cases, as most claimants will not seek, or have their case result in, an injunction. Nevertheless, we are sympathetic to complainants who find themselves in the difficult circumstances in which an injunction may be required. Further to this, we expect the OfS will take into account the implications of the amendment when drafting the complaints scheme rules.

I hope that the House will therefore accept amendments 10B, 10C and 10D from the other place, and agree with the Government’s proposed new subsections (2) to (5), which are consequential upon the amendments.

--- Later in debate ---

[Matt Western (Warwick and Leamington) (Lab)]

The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.

Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.

[Sir Julian Lewis]

It is a very serious step for anyone, particularly a student with limited means, to go to court and seek an injunction. Surely the hon. Gentleman can see that no one will do this on a whim. They will do so only when their rights are being seriously infringed.

[Matt Western]

I have a huge amount of respect for the right hon. Gentleman, as he knows. Of course I would be concerned about the case of an individual student, but I fear more generally about the tort being a channel for more vexatious claims by well-funded individuals or organisations, and where that may take us. I will expand on that point.

Where issues arise, Ministers have shown no interest in dealing with the underlying causes. I fear that this is yet another example of Ministers leaning in and exploiting cultural divides, opting for punitive, confrontational tools such as the tort before us. I have repeatedly stated the plethora of options open to the Government: the Chicago principles, the Robert French report, Universities UK’s guidance, internal processes and the Manchester and King’s guidelines—all of which would do a better job at resolving issues whenever they arise.