The Westminster government has won a vote on including the right to sue English universities and students’ unions in its campus free speech bill – with ministers calling the statutory tort an essential step to “cultural transformation”, but making conciliatory noises about it being a “backstop”.
The passage of the Higher Education (Freedom of Speech) Bill through the House of Lords had seen peers – including Conservative former universities minister Lord Willetts – vote to remove the statutory tort from the legislation, amid fears universities would be subjected to “endless” or vexatious litigation.
But MPs voted to reinstate it when the bill returned to the House of Commons on 7 February.
Claire Coutinho, minister for children, families and well-being in the Department for Education, the department sponsoring the legislation, told MPs that the tort would be “critical to stimulating the cultural transformation that we need”.
“I stand firm in my belief that the tort is an essential part of the bill, and I disagree with its removal,” she said.
Ms Coutinho sought to offer reassurance that the government did not want “providers being taken to court without good reason and being forced to defend themselves against unmeritorious or vexatious claims. We do not expect that to happen. The tort has always been considered a backstop.”
She added: “In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS [Office for Students] or the OIA [Office of the Independent Ajudicator]. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.”
Matt Western, Labour’s shadow higher education minister, observed it was “almost two years to the day” since the bill was introduced to Parliament.
He warned that “every hour of parliamentary time spent debating the bill and its provisions is an hour not spent debating the real issues faced by students and wider society”.
The objections to the tort raised in the Lords were “damning”, said Mr Western, noting Lord Willetts’ argument “that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble”.
He also noted concerns from Lord Etherton, formerly one of the most senior judges in the UK as a Master of the Rolls, that in the tort as it stands, “it is not clear what level of loss or damage is required for a successful claim” while “it is also not clear what category of persons is entitled to make a claim”.
Mr Western added: “As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counterproductive.”
It remains to be seen whether the government will offer Lords rebels some kind of compromise on ensuring the tort can only ever be a backstop used when other routes are exhausted, and whether the Lords would accept such a compromise.
Meanwhile, the government backed an amendment to the bill which will ban the use of non-disclosure agreements by universities in cases of sexual harassment, sexual abuse, bullying and other forms of misconduct.
“It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them even with their family or close friends,” said Ms Coutinho.
