My Lords, I have a huge amount of sympathy with the fears about the chilling effect of Clause 4 and the points that the noble Lord, Lord Willetts, started off making. Basically, I am torn on Clause 4; I do not quite know where to go.
A number of people have discussed the potential of vexatious litigation. I think that is rather cynical. We keep hearing about all these bad-faith players. I am simply worried about litigiousness full stop, even by good-faith players. We know that a dependence on law courts to resolve problems can tangle us up and subsume the matter of fighting for freedom and free speech in legalese, lawyers and so forth, even if done with the best of intentions.
In other words, I do not want us to abandon what we all started off agreeing, which was that this Bill should not compensate for a need for a culture change in relation to arguing for the importance of academic freedom. It should not be seen as a replacement for that. I definitely do not want the law courts to get in the way, because they can kill off any possibility of that culture of the spirit of freedom being drowned out. That is one side of it.
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I was reminded by the excellent speech of the noble Lord, Lord Triesman, and in particular by his point that trade unions have changed, that there is a real problem to address. I slightly disagreed with his description of student unions; they may have been like that in the past, but they are much more professionalised, litigious, disputatious and often anti-free speech than they ever were in the past. Nonetheless, things have changed, so my concern is: if we remove Clause 4, does this Bill become toothless? Is it the case that we are abandoning all the commitments of the Bill to having no implications or no outcome whatever? I just cannot decide which is the way to sell it, because I do not want this Bill to have no impact. Professor Kathleen Stock has been mentioned, and the truth is that she wrote an article supporting this Bill, which was the article that persuaded me to support the Bill. She said it was something she thought she would never need to support, but she felt circumstances had so changed that we needed something. So I think we have to at least recognise that the change is so profound that it may be that the Bill is necessary and it may be that the Bill without Clause 4 is toothless. That is my question, really.
However, I am more drawn towards the points put forward by the noble Lord, Lord Sandhurst, about a kind of employment tribunal way of approaching this and giving clearer powers to regulators, rather than constantly looking to the law courts. I am much more open to that, and I do hope the Government will listen to that as a very sensible suggestion, and to the other points that have been made about giving more powers—clear powers—to the regulators to deal with this.
I have just another couple of queries, and I appreciate this is because I do not understand the law as the lawyers do. The noble Lord, Lord Grabiner, I think explained that the duties in the Bill mean that you do not need to have a statutory tort because anyone would be able to sue. But he made the point that in the Bill, having it as a statutory tort made that right to sue more prominent. Well, the difficulty I have there is that if the problem or the complaint is that it is being drawn attention to, I do not necessarily want to have a Bill that hides it either. If you have the right to sue, does it make any difference if you draw attention to it in the statue? That was the query I had there.
My question to the Minister is—I am completely confused about this—is the only point of Clause 4 if somebody suffers material damage? This has been referred to by people in a much more sophisticated way than I can. Is it that these are just disputes where you will actually lose your job or directly suffer material damage? The reason I mention that is that in most of the free-speech disputes involving academics at universities, what actually happens is that it is not so much material damage as reputational damage that might well have an impact on your employment in future. You are described as a bigot for ever more, and you cannot escape having these kinds of labels attached to you. That is one of the things that, again very movingly, Professor Kathleen Stock found so demeaning: that somebody who is a lifelong campaigner for women’s equality would have that label used against her. So can Clause 4 resolve this? Is it only material loss or does that material loss have a greater, encompassing way of saying reputational loss that will undoubtedly affect your employment prospects in the future anyway?