My Lords, I thank the noble Earl the Minister and the Minister the noble Baroness, Lady Barran, for the explanations that they have provided in the House, in correspondence and at meetings that we have had. That said, I am afraid that I am still firmly against Clause 4 and believe that the Bill would be improved if it were deleted.
I will not repeat the points I made in Committee, but I summarise my concerns by reference to the Minister’s closing remarks on day 3 in Committee on 14 November, in Hansard cols. 725-30, and the government amendment now before us. My starting position, unlike that of some noble Lords, is that I am in favour of the introduction of the new duties to be imposed on universities, colleges and student unions. The Minister has given many examples of absolutely unacceptable behaviours designed to undermine speech freedom. In short, I agree with the Government that, in light of the developing experience, it is now necessary—unhappily—to enshrine freedom of lawful speech in primary legislation.
We have two very experienced regulators in our higher education system: the Office for Students and the Office of the Independent Adjudicator—the OfS and the OIA. In my view, these new duties should be enforced only by the expert regulators. This would be
a natural and logical extension of their regulatory powers and they would bring to bear their specialist expertise in this clearly defined area of educational activity. It is also the case that these regulators are subject to judicial review in the courts. Thus, if the decision-making regulator takes into account irrelevant matters, or fails to take account of relevant ones, or is plainly wrong in law, the complaining party can apply for judicial review. If it is necessary to have what the Minister calls a “backstop”, the judicial review mechanism fits the bill precisely. Given the regulatory and higher education context, I do not believe it is necessary, still less is it desirable, to make express provision giving a civil law cause of action in tort which would enable the claimant to pursue a claim in court against the university, the college or the student union, as the case may be.
In the debates that we have had thus far, it seems to me that three issues have emerged which, taken together, strongly suggest that Clause 4 should be deleted from this Bill. First, I and other noble Lords believe that Clause 4 would be an open invitation to ill-motivated trouble-makers—if the social media is taken at face value, there are plenty of them out there. The trouble-makers would inevitably wish to use the very public platform provided by this new access to the courtroom to advance their own ideological stance.
Secondly, we know that universities and student unions are very poorly funded. We should not be subjecting them to the risk of unnecessary and expensive litigation. That is especially the case when we have an established regulatory structure in the sector.
Thirdly—this point has been made in particular by the noble Lord, Lord Macdonald of River Glaven, but also by other noble Lords—the fact that Clause 4 exists will have a chilling effect on the academic sector. Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited. On the first day in Committee, the noble Earl the Minister pointed out, correctly in my view, that
“there is no right to a platform”.—[Official Report, 31/10/22; col. GC 36.]
That is an important point. It is obvious that college authorities and student unions will bear it well in mind. They will inevitably err on the side of caution and rather anticipate and avoid any risk of Clause 4 litigation simply by not inviting speakers who are or may be perceived to be controversial.
This would produce the very opposite of what is intended by the Bill: lawful freedom of speech will have been denied and we will never know the details. I wonder how many universities, colleges or student unions would invite JK Rowling to speak if Clause 4 were in force. My guess is that they would not invite her. That is a shocking fact and is precisely the result we would wish to avoid.
Ministers have separately sought to justify Clause 4, and I will address the points that have been made on the new government amendment before us. It is said that, in practice, there is nothing in my first issue—the ill-motivated claims point. It is accepted that such claims will be made, but it is said that they will be thrown out peremptorily and that the costs incurred
by the university or student union would be recovered from the vexatious claimant. This is pure assertion and speculation. It would not be difficult to formulate a plausible argument that the court would be reluctant to halt at the embryonic stage. Also, if you win, it is never easy to recover your costs: the claimant is likely to be elusive and probably penniless, and the process of seeking recovery is time-consuming and expensive. Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?
Next—this is said to be a key point—the Minister repeatedly describes the new tort as a necessary “backstop measure”. The new amendment takes account of some of the criticisms made in Committee on the Bill as originally drafted. If left as it is, there would concurrently be in place the regulatory procedures as well as the new civil law cause of action, without any rules as to priority or the relationship between the two. The new amendment requires that mediation at the college level and all regulatory procedures should be exhausted before a claimant can use Clause 4. I agree that that clarifies matters, but unfortunately it still leaves us with Clause 4.
The argument now relied on by the Government, off the back of the new amendment, is that the individual claimant should be able to claim damages in court for loss, which could not be done in judicial review proceedings—it is correct that an individual cannot recover damages in a judicial review case. This is interesting, but noble Lords should realise that this represents a significant change of tack by the Government, because the Bill as drafted made no reference at all to losses or compensation. The new amendment gives no definition of loss—it might encompass hurt feelings and financial loss, such as wasted travel expenses and matters of that kind—but it is obvious that we are talking about very small amounts of money.
How do you measure, in financial terms, the damage done to someone whose freedom of lawful speech has been undermined? A judge is not entitled to pick a figure out of the air; there must be a rational explanation for the amount of damages awarded. In my view, there is no substance in the argument that the complainant needs a damages remedy; he, she or it will not be able to prove any serious financial loss. In any event, I suspect that, in the mind of the complainant, damages would not be a top priority; it is more likely that the remedy of a declaration, perhaps coupled with an injunction, would be the aim.
Professor Kathleen Stock has been referred to in relation to other amendments, but I should mention her in this context, in case it is suggested that she is a good example of why Clause 4 is necessary. I have every sympathy for Professor Stock, and I am certain that everyone here also does. From what is publicly known of the case, it looks as though she was treated very badly indeed by her employer, the University of Sussex, and, it seems, by some academic colleagues who should have known better. That said, she could have sued her employers for breach of her employment contract, but, for whatever reason, she chose not to. In the circumstances, Clause 4 would not have improved Professor Stock’s position.
My concern is that Clause 4 will be used by mischief-makers, whereas our real focus in this House should be the effectiveness of the regulatory function in ensuring that these new and important duties are understood, respected and properly enforced. In my view, the supposed financial protection of the individual claimant is a distraction and a sideshow. I believe the Bill would be greatly improved if Clause 4 were deleted.
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