My Lords, the premise of the amendment moved by the noble and learned Lord, Lord Etherton, is a presupposition that the clause remains. I will be a little more ambitious by arguing that the provision is in fact otiose and we would do well to get rid of it.
I support the view that the clause should be deleted—as I think the Minister is aware—because three points seem to militate against the introduction of this brand new civil cause of action. First, it should not be assumed that the ability to invoke the civil court process will operate as some sort of universal panacea which will resolve this problem at a stroke. Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension. Speaking from my narrow professional perspective, the only guaranteed positive outcome is that the financial condition of both sides of the legal profession will be enhanced if Clause 4 is enacted.
Secondly, in this case, the Office for Students, and the OIA—as regulators with suitable powers and, as should be the case, an in-depth understanding of the higher education world—would be far better placed than a judge of the High Court to deal with the matters dealt with by the Bill. In principle, it should not be necessary to have a regulatory structure concurrently in place with a specially devised civil court process. The scope for confusion, and what I call trouble-making, is obvious.
Against that, I believe it is suggested that Clause 4 is necessary as some sort of backstop to the regulatory regime. The unsatisfactory implication from the backstop argument is that the regulators may not be up to snuff—for example, because they lack funding, expertise or the necessary powers.
The backstop argument is unprincipled and illogical. If, for whatever reason, the regulators are not good enough, that should be the focus of repair and improvement. We should not be in the business of bolstering the deficiencies of the regulatory structure with the court process contemplated by Clause 4.
In this connection, the Bill wholly fails to address the relationship between the regulatory regime and the new proposed civil action. Should one be exhausted before the other? If the complainant fails before one, should he, she or it be entitled to have a second bite of the cherry? Suppose the complainant succeeds before one, should the loser be entitled to seek declaratory relief from the other, to the effect that the first decision was wrong? The scope for confusion and what I call mischief-making is significant. My sense is that these potential complications have not been thought through or, if they have been, they have not been addressed in the drafting of the Bill.
My third point is that there will inevitably be pressure groups and mischief-makers who will wish to use the court process publicly to embarrass universities, colleges and student unions to advance their own branded ideology or view of the world. The potential for this sort of behaviour, particularly in this context, is boundless, I am afraid.
On Second Reading, in the Minister’s very clear explanation of the structure and content of the Bill and, in particular, in closing, he made three points in support of, or by way of justification for, Clause 4, and I should like to address these points. I would not and could not put words into the Minister’s mouth, but his position can fairly be summarised as acknowledging the objections to Clause 4 as seriously held opinions but that, in his view, the concerns expressed were, on analysis, and for the three reasons he gave, more imagined than real. I cite Hansard of 28 June, col. 633.
The Minister said, first, that it would be very difficult for a claimant, especially a vexatious one, to establish the requisite duty of care without which the statutory duty could not be said to be breached and the claim would swiftly be dismissed. Secondly, he said that it would be necessary for the claimant to prove what he called “genuine and material loss”, by which I assume he meant financial loss. The Minister said that this would be a tough hurdle, which few claimants could clear. Thirdly, he said the claimant would find civil proceedings expensive, especially if he lost and ended up having to pay his own and a significant element of the fees incurred by the university, college or student union, as the case may be.
I should like to deal with each of those points because, in my view, none of them withstands detailed analysis. First, the persons to whom the proposed duties would be owed are identified in the Bill, in new Section A1(2) in Clause 1, as staff, members, students and visiting speakers, and in new Section A5(2) in Clause 3, as
“members of the students’ union … students … staff of the students’ union … staff and members of the provider and … visiting speakers”.
Potentially that includes a lot of people, as well as organisations with which they may be associated. It is also the case that, as has often been said by judges at the highest level, the categories of duty are never closed. The common law develops piecemeal through changing circumstances; it is a living thing, and there is every reason to suppose that, ultimately, these duties will be held to be owed to persons or organisations
whose behaviours and beliefs will or may be regarded as lawful but nevertheless deeply offensive to many listeners or observers. If the claimant presents an arguable case that he, she or it is owed a duty of care, the claim will be permitted to proceed; it will not be struck out at the preliminary stage.
The second point, to the effect that the claimant would have to show “genuine and material loss” needs careful scrutiny. The impression given by those words is that it means significant financial loss—that is, in order to succeed, the Clause 4 claimant would have to prove that he had suffered a real level of financial loss as a consequence of the breach of duty. I would be most grateful if the Minister would explain to us what they mean, if not that type of loss.
Before getting into the meaning of genuine and material loss, there is an important anterior question. Most torts in our law are not made out without proof of some damage but some, such as nuisance, trespass to land and libel, are actionable per se. The noble and learned Lord, Lord Etherton, made some reference to this a few moments ago, which is to say: without the need to allege or prove any damage. Clause 4 is interesting because it specifically makes no mention of damages or financial compensation for the claimant. I think that is what the noble and learned Lord’s amendment, or part of it, is directed at.
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By contrast, in the financial services legislation with which I am familiar, the Financial Services and Markets Act 2000, Section 150(1) of that Act specifically provided that the breach will be
“actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty”.
That provision was repealed by the Financial Services Act 2012 and replaced with a new Section 138D, which is in very similar language. In that example, the statutory tort is created but a specific right to claim compensation is expressly provided for. However, that is not found in this legislation, which is what drives me to the conclusion, or at least the submission, that this is a statutory tort, which would be actionable without proof of damage. In my view, that is at least a very serious argument that Clause 4 creates a tort which is actionable per se. There would be no need for the claimant to prove any damage at all which, with respect, would significantly undermine if not destroy the second point of justification suggested by the Minister.
When your Lordships have regard to the context of the Bill, freedom of speech, you would not ordinarily expect the claimant to have suffered any financial loss at all—for example, compared with the damage suffered by a claimant in a personal injury case or somebody who is the victim of a fraudulent misrepresentation. That rather supports the proposition that it will not be necessary to prove damage to make a Clause 4 claim. If that were necessary, the Bill could and would have said so in terms. This makes it much easier for the provision to be deployed by unmeritorious claimants.
In my view, the “genuine and material loss” formula involves a misunderstanding of the true nature of this Bill. In a typical case, Clause 4 is not about compensating
a claimant who has suffered monetary loss; it is about protecting a claimant from being deprived of an opportunity freely to express lawful opinions. If made out, such claims will rarely, if ever, result in substantial damages or compensation. How do you value these matters in monetary terms? It is more likely that the claimant will seek a declaration from the court that the university, college or student union has breached the duty. That might also be coupled with an injunction application to prohibit similar future behaviour. In short, I do not believe that the second point mentioned by the Minister arises in the context of this Bill and Clause 4.
The Minister’s third point is to the effect that the costs associated with bringing a claim under Clause 4 would be prohibitive and dissuade vexatious claimants. I do not accept that argument, with respect. First, there are some very well-heeled trouble-makers for whom the costs issue would be of no concern at all. Secondly, there are also trouble-makers with no financial resources beyond the ability to finance the fairly nominal cost of issuing a claim form. They would be entitled to represent themselves, or by having a friend do so, and if they were ultimately to lose would not in any event be able to meet any costs order made against them. There are potential claimants who well understand these things. In short, I am not persuaded that there is any real justification for Clause 4.
I was going to sit down at this stage, no doubt to the relief of all those listening, but I have been in email contact for part of the day with the noble and learned Lord, Lord Hope. As of midday today, or a bit after, he was unfortunately still sitting on an aeroplane in Edinburgh Airport, waiting for the fog to clear in London so that he could come and participate in this debate. He has asked me to explain his position. The points that I am now going to make—I promise that I will be as brief as possible—are all down to the noble and learned Lord, Lord Hope, but what they actually do is to devastate Clause 4, as you would expect.
The noble and learned Lord asks me to explain his point, which is that he takes the view that Clause 4 is otiose because you do not need the statute to tell you that you have a right of access to the court. The critical point to understand is that this Bill introduces three duties. It imposes duties upon colleges and universities, upon student unions and so on. Having created the duties, the point from the noble and learned Lord, Lord Hope, as I understand it, is that you do not need to be told in a statute that you are able to sue for breach of that duty. He therefore says that Clause 4 is completely unnecessary.
The noble and learned Lord prays in aid, first, the provisions of Article 6 of the European Convention on Human Rights, which says pretty much that about access to the courts. He also says that, if you need a statutory authority for that proposition, it is that you do not normally find in a statute an expression of the entitlement to bring an action; on the contrary, what you normally find is that, if your cause of action or your access to the courts is to be restricted, that is set out in the statute. He gives the example of Section 47 of the Health and Safety at Work etc. Act 1974. The implication is that, absent a restriction in the legislation,
you do not need anything in the legislation to give you that ability to access the court, because it is already there. There is a bootstraps element to it because of the duties that will be imposed if this Bill becomes law. It would give an individual the cause of action and the ability to come to the court without more.
For what it is worth, I believe that there is obvious force in that argument. I nevertheless still wish to see Clause 4 deleted. Let me explain why. It would leave the possibility of a common law cause of action. The duties would be there and somebody outside could come along and bring a claim for breach of that duty without the need to point to a provision in the Bill—or, by then, the statute. It would not be in the Bill, so it would be less prominent. For that reason alone, I would be in favour of getting rid of Clause 4, even apart from the separate point that the noble and learned Lord, Lord Hope, makes, which is that it is otiose.
Another problem comes out of this discussion. It takes us back to the position of the regulators. Should the Office for Students be given powers to enforce the duties? This issue is not currently addressed, which gives rise to some serious problems. If a private claimant is not going to have the ability to bring a claim for damages—which is my preferred position—then somebody has to be responsible for ensuring that these duties are properly performed. The obvious person to do that is the regulator, but at the moment there is a huge hole in the Bill because that question is not addressed. I am sorry for having taken so much of your Lordships’ time.