Free speech bill fans urge ministers to force home right to sue

Government tipped to win battle with peers who removed statutory tort and are ‘unwilling to compromise’

December 19, 2022
A demonstrator holds up a megaphone  near the Houses of Parliament to illustrate the Free speech bill fans urge ministers to force home right to sue
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Supporters of England’s campus free speech bill have urged ministers to force through a clause allowing universities to be sued over perceived breaches of their duties, against peers who are “unwilling to compromise”, with the government tipped to succeed in any such battle.

A date has not yet been set for MPs to consider amendments the Lords made to the bill earlier this month, including scrapping a statutory tort that had been included in the Higher Education (Freedom of Speech) Bill, allowing individuals to sue universities and students’ unions for compensation “if they have suffered loss” as a result of an institution breaching duties to protect free speech.

Claire Coutinho, a junior minister in the Department for Education whose brief includes freedom of speech, subsequently said that the government was “resolute” that provisions for the tort would be included in the bill.

But opponents, including Tory former universities ministers Lord Willetts and Lord Johnson of Marylebone, have claimed this would lead to “endless litigation” against universities, and be counterproductive, because the bill also hands powers to the regulator, the Office for Students, to take action against universities not following the law.

Any battle would come at a sensitive time for the House of Lords, which Labour has pledged to abolish. Ministerial commitment is seen as signalling that the government is likely to win the battle.

Iain Mansfield, architect of the bill in his time as a special adviser to ministers in the Department for Education, said it was “encouraging that the Lords has approved the bill with the tort remaining as the only substantive area of disagreement”.

“The government must now move to complete the bill’s passage as soon as possible,” said Mr Mansfield, now head of education and science at the Policy Exchange thinktank.

“The tort is an essential backstop to ensure individuals can get redress when they have suffered serious loss, so it is to be hoped the government can find suitable safeguards on its use that will allow it to be reinserted.”

Backers of the tort argue that cases such as that of Felix Ngole, a Christian expelled from a University of Sheffield social work course after being accused of posting derogatory comments about gay and bisexual people, show why it is needed.

Bryn Harris, chief legal counsel at the Free Speech Union, likely to be at the forefront of legal challenges to universities, said he hoped the government “would realise that the Lords are unwilling to compromise” and reinstate the tort, noting that ministers had offered an “extensive concession” by proposing that all complaints should be considered by the OfS before heading to the courts.

“As there is demonstrably nothing to gain by the government offering further compromises, we hope the government will stick to its guns and reinstate the statutory tort,” he said. “It was right to introduce it, and the evidence on the ground supported it as a necessary proportionate measure to secure free speech and academic freedom at English universities.”

Nick Hillman, director of the Higher Education Policy Institute and a former adviser to Lord Willetts in his time as universities minister, said that “peers are aware that the whole future of the House of Lords is in the spotlight so will be wary of pushing any fight too far”.

“My best guess is that ministers will bring the tort back and that it will survive even though I wouldn’t bet my house on it,” he added.

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