The Lords Amendments to the Higher Education (Freedom of Speech) Bill were debated in the House of Commons in February and there was a terrific outcome for academic freedom at England’s universities. Following the Government’s announcement that it would support the statutory tort in the bill as originally drafted, Lords Amendment 10 – which sought to remove the right of students and staff to sue universities that breach their speech rights in the County Court – was rejected at division by 283 votes to 161 (Times Higher).
This is a big victory and one the FSU can take the lion’s share of the credit for. When the Lords rejected the tort, we swung into action, contacting all the MPs we know, writing to the Education Secretary and her ministers, and urging academics who support the tort to write to them too.
In technical, legislative terms, clause 4 of the legislation as drafted creates a new statutory tort that will allow aggrieved parties to take legal action against universities in the County Court. In the FSU’s view, it is this tort which gives the legislation’s new free speech duties teeth.
Claire Coutinho, the Under Secretary of State for Education and the minister responsible for the Bill, is the member of the Government we have to thank for restoring the tort. Writing in the Telegraph, she said it “will allow those who have suffered any loss – financial or otherwise – to seek redress through the courts where needed. I’ve spoken to many leading academics who share my belief that the tort is necessary to secure the cultural change needed on campus.”
It was this aspect of the legislation that met with strong opposition in the House of Lords, where critics voted to strip out clause 4 in its entirety. Their main criticism of the tort was that it would subject higher education providers to costly, time consuming and unmeritorious or vexatious claims.
As we pointed out in our most recent briefing on the Higher Education Bill (here), criticisms of that kind were oblivious to both the legal architecture proposed by the legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.
The first port of call under the Bill for anyone who believes their right to free speech has been infringed will be a specialist adjudicator (the new free speech champion at the Office for Students) who will deal solely with university free speech cases. This is intended as an informal, inexpensive, and less risky alternative to taking a university to court.
Moreover, what the Bill’s critics in the House of Lords seem not to understand is that the courts will assign cases to various ‘tracks’ depending on the value of the claim, thus ensuring the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him, for instance, might be put on the County Court small-claims track, while an academic dismissed from her well-paid professorship might well be assigned to the High Court.
The FSU is aware of dozens of academics who’ve been at the sharp end of cancel culture in British universities who have contacted Ms Coutinho over the past few weeks to tell her why they think the tort is essential. It is greatly to her credit that she has listened not to them and not to the panjandrums of the higher education establishment in the House of Lords.