I am grateful to the noble Lord. It is not the only reason for the tort, as I shall go on to explain. I was going to say that we need to bear in mind that under a judicial review the court would consider standard judicial review grounds, such as a failure to take relevant considerations into account, rather than the substantive issue of whether reasonably practicable steps were taken.
Equally, it has been argued that the tort is not necessary because a claimant could bring a claim for a breach of Article 10 of the European Convention on
Human Rights. However, again, this would not be available in relation to student unions because they are not public authorities, and the test for whether damages may be awarded is not an easy one to satisfy. Again, the court would consider whether there had been a breach of Article 10, rather than of the duties under the Bill.
In Grand Committee the noble and learned Lord, Lord Etherton, suggested that we should specify in the Bill what remedies are available in a tort claim. I come back to the point made by the noble Lord, Lord Grabiner, a moment ago, which was a helpful intervention because it highlighted the potential role that court proceedings could have in particular cases. The Government’s intention is that damages should be available to compensate the claimant for the loss they have suffered. We can argue about whether the damages are nugatory or more substantial.
There may be situations in which an injunction is appropriate, for example if a student is expelled from their course and so the court orders the provider to offer them a place on the course for the following year. Other remedies may be suitable in some cases, in addition to these—perhaps a declaration. Our view is that where a claimant does not believe that they have been fairly dealt with by the OfS or the OIA, we should leave it to the courts to determine what is appropriate in an individual case.
Various noble Lords have raised concerns that the tort will create a chilling effect, dissuading higher education providers, colleges and student unions from inviting controversial speakers to campus because of fear of litigation. My noble friend Lord Willetts raised this concern; I understand him to believe that the availability of the tort may cause students or academic staff to self-censor over fears of being labelled a controversial speaker or lecturer.
To say that the Government are not convinced by these arguments is an understatement. The stronger counterargument appears to us to be that the Bill as a totality, including the tort and codes of practice, will create a stronger regime that will encourage providers to make sure they are getting their decisions right and will encourage a change of culture across our campuses. That regime and change of culture will deter providers from the notion of simply not inviting controversial speakers and will give greater protection to academic staff to speak out.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed a concern that has been raised with me in other contexts outside the Chamber—that the OfS complaints scheme will simply take too long to reach a decision. I am glad he raised that point, and I hope I can reassure noble Lords on that score. The OfS will consult on the scheme rules and will publish clear expectations on timetables. It will be held to account on its efficiency and the effectiveness of the scheme by its board and by the Government.
As a possible exemplar, the OIA says of its complaints scheme that it commits to normally sending a complaint outcome within 90 days of receiving all the necessary information. It also says that where a party needs a case to be reviewed particularly quickly, it can request that it be prioritised. Some cases may take six months
to review overall, by the time all the information has been gathered, but others may take much less time, depending on the complexity. It is worth noting in this context that the limitation period for bringing a civil claim is six years, so there is little risk of missing that deadline if this approach is taken. I hope that explanation gives some comfort to those who are concerned that a complaint may go into some sort of black hole and not come out again for years and years.
I want to cover another issue that was raised in the context of government Amendment 20, so that it is understood. We do not consider that this amendment would prevent a person seeking an interim or emergency injunction in the courts. Such an injunction would be sought in a case where the claimant wants to prevent a future breach of the specified freedom of speech duties, rather than where a breach has actually occurred—in other words, where there is the threat of a breach. In that case, an individual would not be able to complain to the OfS or the OIA under either scheme, as there has been no breach yet. Accordingly, the requirement to have first exhausted a complaint scheme would not apply and the claimant could in principle go straight to the courts.
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Amendment 21, tabled by my noble friend Lord Moylan, operates in a similar area to that of the government amendment. An amendment in the same form was tabled by my noble friend Lord Sandhurst and debated during Grand Committee. The amendment would allow the defendant to a claim to apply for a stay of proceedings, which may be ordered if the court considers that there is no sufficient reason why the OfS complaint scheme should not be utilised, and the defendant will co-operate with that. This is, effectively, an alternative approach to the one set out in government Amendment 20, which obviously would not work if noble Lords supported our amendment and which I ask the House to do.
I have already set out the reasons why the Government consider our amendment appropriate. Suffice it to say that we do not really think the approach in Amendment 21 is the right one; one has only to think of how it would play out in practice. Its effect would be that the defendant would no doubt want to apply for a stay, to avoid legal proceedings, and seek to persuade the court to order a stay. In the vast majority of cases the court is likely to order one, for the simple reason that it will consider the specific scheme created by the Bill—and operated by the sector expert—to be the most appropriate way of resolving the complaint, without the need for further costly legal proceedings and the involvement of the courts. Let us remember that the OfS can make a recommendation to do anything, including to pay a specified sum in compensation, or to refrain from doing anything. The powers of the OfS are wide and we fully expect that providers will comply with its recommendations.
The amendment would mean that there would be substantial legal costs for the claimant in initiating a legal claim, both court fees and solicitors’ fees, which would simply result in the OfS considering the complaint before it potentially returns to court for the stay to be lifted. I say in all earnestness to my noble friend that
this approach does not seem preferable to the one proposed by the Government. It would be more costly and more complicated, as well as involving court time and resources, perhaps unnecessarily if the OfS decision in a given case were to satisfy the complainant. I hope that my noble friend will see the force of my arguments.
Amendment 22, tabled by my noble friend Lord Willetts, seeks to remove the tort from the Bill altogether. The noble Lord, Lord Grabiner, and other noble Lords made their identical views clear and effectively questioned what added value would accrue from the existence of the tort, given the powers that will rest with the regulators. I have already set out some of the reasons why there will be added value. We have debated this issue at length, during Grand Committee and today, and I think noble Lords understand the Government’s clear view that the tort plays an important role in the Bill. We think it will operate very much as a backstop route for complainants to seek redress in the event that the OfS, or OIA, complaint scheme does not satisfy them. I reiterate that we do not want to water down the Bill. Keeping the tort in it, as amended by our amendments, will provide extra protection and genuine added value, and we do not want to get rid of that.
I am the first to recognise that the tort has been a matter of concern. I thank noble Lords once again for their thoughtful insights, which have been enormously helpful in understanding how the Government can seek to reassure the House at this stage of the Bill. I hope the government amendments provide that reassurance. I ask noble Lords who may be thinking of trying to strike out this clause to ask themselves, in the light of this debate, whether they believe it would be right to deny those who believe they have suffered genuine and unrecompensed loss a path to legal redress. I am clear and the Government are clear that Clause 4, amended as we propose, is the just and right way to go.