My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee
on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.
It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.
However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.
5.15 pm
Turning to the broad issue of this clause as a whole, I am aware that the noble Lord, Lord Stevens, who is not in his place, my noble friend Lord Willetts, the noble Lord, Lord Wallace, who cannot be here but is represented, if I may say so, by the noble Baroness, Lady Smith, and the noble Lord, Lord Collins of Highbury, have all given notice of their intention to oppose the inclusion of the tort clause. I have, of course, listened to other noble Lords who are of similar mind, who I hope will forgive me if I do not name them—there are many names to include. I simply add to what I have already said by pointing out that the existing legislation does not give a specific right to seek compensation to individuals who have suffered loss as a result of breach of the freedom of speech duty, leading to concerns that the law as it stands does not offer similar protection. This is one of the lacunae addressed by the Bill.
The noble and learned Lord, Lord Hope, who cannot be here—ah, he is here. I am very glad to see that he has escaped the fog at the airport and I beg his pardon. His views were, I hope, effectively represented by the noble Lord, Lord Grabiner, and I trust that I have picked them up correctly. The noble Lord, Lord Grabiner, made a point on the noble and learned Lord’s behalf about the pre-existing access to the courts, and my noble friend Lord Cormack made points that followed on from this. The current duties under the Education (No. 2) Act 1986 are not actionable, except under the Human Rights Act or by way of judicial review. It would be the same position under this Bill without Clause 4: namely, an express tort set out in statute. The right to damages is therefore limited, and that is one aspect of the current regime that needs strengthening to give individuals the right to claim redress through the courts.