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

Lloyd Russell-Moyle Excerpts

Monday 20th September 2021 Public Bill Committees

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

My partner works at the University of Hull on the degree apprenticeship programme.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

I am a trustee at the University of Bradford union. I have received payment from the University of Sussex to provide educational opportunities, and I have received money from the University and College Union.

[Mr Richard Holden (North West Durham) (Con)]

I am vice-chair of the all-party parliamentary group for friends of Durham University

Clause 3

Civil claims

Amendment made: 4, in clause 3, page 5, line 21, at end insert—

“(aa) a constituent institution of a registered higher education provider, in respect of a breach by the governing body of the institution of any of its duties under section A1, or”. —(Michelle Donelan.)

This amendment is consequential on NC1.

Question proposed, That the clause, as amended, stand part of the Bill.

[The Minister for Universities (Michelle Donelan)]

Clauses 1 and 2 strengthen freedom of speech duties on registered higher education providers and extend them to students unions at approved fee cap providers. Clause 3 plugs an identifiable and substantive gap in the current legislative framework by providing individuals with a route of redress for loss suffered as a result of a breach of these freedom of speech duties. Clause 3 therefore creates a new statutory tort. This enables civil proceedings to be brought against a higher education provider in respect of a breach of the new duties under section A1 of the Higher Education and Research Act 2017, or against a student union in respect of a breach of the section A4 duty.

Individuals can still complain in the first instance—for free—to their higher education provider or student union if they consider that there has been such a breach. They can subsequently complain for free to the new complaints scheme that will be operated by the Office for Students, and students will still be able to complain for free about their provider to the Office of the Independent Adjudicator for Higher Education. However, the statutory tort will also be available, although we are clear that it is intended to be a route of last resort.

[Lloyd Russell-Moyle]

If that is to be a last resort, as the Minister claims—I take her at her word on that, because she is an hon. Member—someone could as a first step go to the courts. Will she ensure that they can do that only if they have exhausted all the other opportunities?

[Michelle Donelan]

I thank the hon. Gentleman for his comment. The problem is that if someone is a visiting speaker at a university, there would be no internal process that they could follow. We want to be as comprehensive as possible and allow this option to be available.

[Lloyd Russell-Moyle]

Will the Minister give way?

[Michelle Donelan]

I will make some progress and then give way.

As individuals will be able to seek redress for free via the OfS or the Office of the Independent Adjudicator, we expect individuals to make a complaint to the OfS or the OIA before relying on the tort.

--- Later in debate ---

[Michelle Donelan]

One thing we must be clear on is that the current system is not working. It is failing individuals who are having their freedom of speech breached, as we also heard from multiple sources in the evidence. At the heart of this Bill is unlocking a greater choice for individuals, whether that is going down the OIA route or the one-stop shop of the director who will be responsible for free speech and academic freedom. While it is true that at the moment not many cases that are brought forward are purely to do with freedom of speech, I argue that that is because we need this Bill in place and the new director in their position.

Given that individuals may not want to incur the legal costs and risks associated with bringing a claim before the courts, we do not expect this provision to give rise to many claims. It will operate more as a backstop for complainants, to cover claims by individuals who may feel they have no other recourse.

[Lloyd Russell-Moyle]

Will the Minister give way?

[Michelle Donelan]

I will, but we are going to have to let me do more than two lines at a time or we will never get through the Bill.

[Lloyd Russell-Moyle]

I am grateful to the Minister. She talks about last resort, and in response to my last intervention she said that that could not be put in legislation because external speakers will need it. Is she therefore saying that external speakers have no form of redress apart from the tort—that they do not have access to the other forms of redress?

[Michelle Donelan]

To clarify my comments, I believed that the hon. Member was talking about going through internal processes before addressing the tort.

[Lloyd Russell-Moyle]

I meant all processes.

[Michelle Donelan]

There will be a variety of options available. Going to the director will be the free option and the first instance, but we cannot mandate that they have to have gone through the internal processes of an institution, because those will not be available to everybody that the Bill seeks to represent.

For example, this clause will provide a means of redress for individuals who do not have employment protections, such as visiting fellows—the point I was making earlier. Let us bear in mind that the purpose of the tort is to bolster the enforcement of the new freedom of speech duties on higher education providers and student unions, so that there are clear consequences for those who breach those duties.

The clause will ensure a clear route to individual redress for all who have suffered loss where freedom of speech duties have been breached, and will give those duties real teeth. This is therefore a vital part of the Bill, as part of a suite of measures to strengthen free speech in higher education.

--- Later in debate ---

[Matt Western]

We have tabled amendments proposing how universities and student unions should find their way through that, and we will come to some of them later.

To finish, I want to raise the much-cited case of David Irving, who was uninvited from speaking to the Oxford union as long ago as 2001 because of pressure from academics and members of the student union, who were furious that he was being given a platform for his views on the holocaust. A High Court judge had previously described him as “racist” and “antisemitic” during a libel trial. During the evidence sessions, one of the witnesses hypothesised:

“If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 102, Q211.]

[Lloyd Russell-Moyle]

The contradiction in using that example is that the Bill would not make any difference, because it excludes the Oxford Union. The very thing that Government Members are worried about will not be dealt with, because the Bill excludes the bodies that have done this in the past and includes bodies that have never done it, such as further education college student unions. It is a blunt implement pointing in the wrong direction.

[Matt Western]

My hon. Friend is absolutely right. The examples that are being cited by lobbyists—perhaps more on the Government side—of where there is perhaps an issue are centred around those bodies. Currently, as we debated on Thursday, they are not included in the Bill.

We believe the tort should be scrapped. We believe it is unnecessary, encourages lawfare against universities and will ultimately end up restricting discussion and debate on our campuses. At the very least, we believe it should be amended with maximum fines. A threshold of harm should be introduced, and it should be restricted to those who are directly affected.

--- Later in debate ---

[Lloyd Russell-Moyle]

The difficulty with the inclusion of FE colleges is that, broadly, they are regulated by Ofsted; they have a completely different framework; and they have no relationship with the Office for Students, except in relation to some of the courses that they may run, although they usually do that via other affiliated institutions. Including FE colleges therefore brings into their sphere a whole new regulator that they have never dealt with before, creating even more bureaucracy and confusion.

[Matt Western]

My hon. Friend is absolutely right: there is yet another body to stir into the mix. We have not heard from the Government about how that will play. It further underlines the extraordinary complexity that the legislation will bring to our campuses, colleges, student unions and HE providers across the UK.

I repeat that all bodies mentioned the need for an exhaustive process, so that every sinew is strained to ensure that any complaint goes through the university, the Office of the Independent Adjudicator and perhaps the Charity Commission before it is escalated. There is an absolute desire—it has been demanded—that the tort should be a backstop to the existing grievance process. Otherwise, people will rush to lawyers’ doors, or the lawyers will rush to them, to seek damages at great expense to individuals, and to SUs and institutions in particular. On Second Reading, the previous Secretary of State, the right hon. Member for South Staffordshire (Gavin Williamson), claimed that the tort would be a backstop, but the Bill, as drafted, does not make that clear.

We believe that the clause is unnecessary. We fear that it will encourage vexatious claims and create additional bureaucracy, and we have talked about the £48 million that it will be incumbent on universities and SUs to fund. We believe that the clause will cause confusion to claimants about their various routes to redress through Ofsted, the Charity Commission, the OIA, the OFS and the universities themselves. The clause will also undermine existing disciplinary procedures. For those reasons, we oppose it and wish it to be removed in its entirety.

[Lloyd Russell-Moyle]

We have heard why the clause is dangerous, and I will talk briefly about two reasons why it should be opposed.

First, I will touch on the real chilling effect that I believe the measure will have on institutions. It is a lawfare charter, or an ambulance-chasing lawyer’s charter. Lawyers will go around knocking at institutions’ doors, and they will say to those three students who did not fill in the paperwork correctly to register their student club, “Do you think you’ve been slighted?” because the clause gives them the right to seek damages if the club is not registered. Those people, not the students or staff, will push the boundaries in all different directions.

There are people out there who look to make a quick buck when law is bad. In the past, we have had to rewrite law in this place and remove such opportunities because we had allowed massive loopholes. The easiest and cleanest way to stop that from happening is by following the evidence that we have heard, according to which the tort should be a backstop, not a front foot. At the moment, the Bill allows it to be a front foot.

The Amber Rudds of this world may not go running to the lawyers, but lawyers may come knocking on the door of a poor student or someone on a casual contract who is struggling to pay their rent. Large numbers of university academics struggle to pay their rent day in and day out, because their occupation is a very poorly paid one with low job security, except at the very top. We all have experienced something similar after car crashes, and it drives people crazy. It drove me crazy when I had a little prang at Bradford airport, which did not even cause a dent on either car, because for months afterwards I had lawyers ringing me and saying, “Do you want to claim compensation for whiplash?” The crash caused no damage to me whatsoever, but if I had been struggling to pay my rent or make ends meet, that would have been a temptation. I am afraid this clause opens up that possibility.

The first way to stop that happening is by requiring people to pursue the complaints procedures internally. I do not understand the Minister’s point about an external speaker being unable to complain using an internal process. In fact, we heard how an hon. Member in this room had managed to complain, although it was difficult. Perhaps external people should be able to complain internally. I think most people would like there to be a clear complaints process for external speakers as well.

[Fiona Bruce]

I remind the hon. Gentleman that even though the complaint that I made was upheld, it was futile, because only a year or two later there was an attempt to no-platform me again by the same group, in the same college. That is why this Bill and the recompense—this tort that we are talking about now—are so necessary.

[Lloyd Russell-Moyle]

The hon. Lady is exactly right that it is necessary to clarify that process to ensure that it is streamlined and clear, but under this Bill she might have complained first to the institution, the next time to the Office of the Independent Adjudicator and the next time to the person for free speech. There is no process for creating case law, for want of a better word, and setting a decent precedent. There is no precedent to be set here.

In fact, there are so many ways to complain that it will frustrate the process even more. It would be better to say, “This is the process you have to go through,” so the regulator can see that there is another complaint coming through about the same thing and can escalate it. One way would be to require people to go through a single process; first a free process in the institution and then a free process with one of the regulators. I am easy about whether it is with the Office of the Independent Adjudicator or the director for freedom of speech, as long as it is clear what powers they have.

If all ends are lost or the complainant feels that those offices have come to the wrong decision, they can take it directly to tort. That would allow a quasi-appeal process. At the moment, the director for free speech does not have an appeal process, so if someone thinks that it has come down on the wrong side, they will be stymied and unable to do anything. If it were clear that after going to the director for free speech, people could go to courts for tort, there would be an appeal process.

We do not know who the director for free speech is. Although I trust lots of people who are experts, everyone is fallible and will sometimes make the wrong decision. It seems wrong and unfair to rely on the director for free speech alone to make decisions that people will always be happy with. The director will not rely on case law or precedent, because they will be a law unto themselves when it comes to precedent.

The other way of making this tort section half-decent would be to limit costs. Most student societies have probably about £100 in their bank account. Are we asking a student society, which we have been told will be covered by this provision, to have a liability that is beyond what is in its bank account? Or are we saying that the student union should hold the liability for every single private student association?

Let me make the situation very clear. A student club in a university is a private association of private individuals, which sits under the university and chooses to affiliate to the union. In this Bill, we are proposing, as a Parliament, to include such associations and make their actions a liability of the student union. I know of no other organisation that is liable for the actions of a group of private clubs that happen to affiliate to it. It would be like making working men’s club associations or Conservative club associations—I cannot remember their detailed names now—liable for what happens in every single constitutional club or working men’s club in the country. It is absolutely bonkers, wrong and beyond the pale to engage in giving institutions this level of liability for small clubs that have very little to do with them, apart from an affiliation with them and the fact that one or two students might be members.

Another simple thing that could be done with the tort is to make it very clear that damages can be sought only if damage has been caused directly by the institution or the student union, not just by some of its affiliate bodies, over which it might have no regulatory role. The other way to make the tort sensible and limited is to put a cost cap on it. At the moment, unlimited liability means that institutions and student unions will settle, because there is a risk. If there is no cap, they cannot go to court and say, “We think we might have a bit of an argument here, and we think we have made best endeavours.” As the Minister will say, it is about best endeavours, and there is no case if the university has done its best and things still could not go ahead. That argument will be irrelevant, because if there is unlimited liability, there is a real danger that the university will say, “Okay, we’ll pay out £1,000 out here, and we’ll pay it out there.” Soon, those thousands of pounds will be tens of thousands of pounds.

That could cripple a student union in one go. I know that Government Members might not really understand this, but most student unions are small institutions that have only a few thousand pounds in their bank account. They do not even have £10,000. This idea that student unions are some big organisation that people can draw some sort of tort from is so out of touch with the sector.

It is so disappointing. I might disagree with the need for this measure to be in a Bill—I think that the same thing could have been done through regulation or by bumping up the Office for Students within its framework, but we can agree to disagree on that, and it is the Government’s right to introduce legislation if they wish—but bringing in a tort destroys the whole point of trying to secure people’s free speech. It will mean that student unions will say, “No, we can’t have your societies registering with us at all. We can discriminate against all, or we have to regulate every single thing that you do, so now you just cannot affiliate.” With all those student societies—including the student politics society that I will speak next week or the week after at Sussex University, or the Labour club at Bradford University where I plan to speak in a few weeks’ time—the universities will just say, “It’s too complicated. We’ll shut them down.”

It will be the same for Government Members. They consider free speech societies to be so important, and I agree; they are important for a student’s educational experience. Those societies and the Conservative clubs, or Conservative Future clubs—whatever the youth wing of the Conservative party is called nowadays; I can never keep up—will all be automatically disaffiliated. We have already seen that happen in Oxford; I am not making this up. Oxford University student union did it with the UN women’s society. The student union just disaffiliated that society, which still exists and still meets. The society can be as rude as it was with Ms Rudd, because it is no longer affiliated.