I declare my interest as a visiting professor at Birkbeck, University of London. My amendment is not directed at anything other than technical—but important—deficiencies in Clause 4. I am concerned about the appropriateness of this provision as it stands. I am sure that many here will say that it is neither appropriate nor necessary for Clause 4 to be there at all, but that is not my purpose: my purpose is to make it work if it stays. The Minister will be aware of my concerns about this provision.
There are two critical deficiencies at the moment. The Explanatory Notes state:
“Clause 4 … creates a new statutory tort”.
My first question is whether damage or loss is necessary to make the statutory tort enforceable. Briefly, some torts, such as negligence or nuisance, require loss or damage to give rise to an enforceable legal right, but others, such as trespass, are actionable without proof of loss or damage. The clause, as it stands, does not indicate whether loss or damage is required for anybody to enforce this new right. The Explanatory Notes indicate in two paragraphs that the intention is that there should be “compensation for loss”. If that is the intention, that must be included somewhere in the
definition of the tort itself to make it viable. I should add that, if loss or damage are not critical—if it is actionable, as it were, without loss or damage—it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.
The second deficiency is that there is no description of the category of persons entitled to enforce this civil wrong. It is not limited in any way to any particular group of people, but I assume that the intention is that the category of people entitled to enforce the proposed new statutory tort are those to whom the providers of higher of education owe
“a duty to secure freedom of speech”.
Therefore, that point is also included in my amendment.
I finish simply by saying that if the clause and the new tort are to remain, it is critical that the latter becomes a recognisable and legally enforceable tort with those additions.