Ministers ‘resolute’ on right to sue universities on free speech

Westminster government signals it will seek to reinstate ‘statutory tort’ removed by peers

December 15, 2022
Tug of war
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The Westminster government has dug its heels in over its plans to grant students and academics the right to sue English universities over free speech violations, after the House of Lords voted to scrap it. 

Speaking at an Office for Students (OfS) event on the planned powers, Claire Coutinho, a junior minister in the Department for Education whose brief includes freedom of speech, said the government was “resolute” that provisions for the controversial “statutory tort” would be included in the Higher Education (Freedom of Speech) Bill. 

“We remain resolute that people will have the right to go to court if their complaint cannot be resolved through other routes,” said Ms Coutinho, adding that the government expected the bill to receive royal assent “early in the new year”. The scrapped provisions allow people to sue universities and students’ unions for compensation if they can show a loss from an institution not protecting free speech on campus.   

A date has not yet been set for MPs to consider the changes the Lords made to the bill earlier this month, including scrapping the tort, which were made after a lengthy debate in which opposition was led by former universities minister Lord Willetts. 

In other amendments to the bill Lords sought to ensure grievances can be taken to the courts only as a last resort, effectively giving the OfS a chance to consider a complaint before legal action is taken. 

Speaking at the same event on 15 December, OfS chief executive Susan Lapworth suggested universities should take a “fresh look” at their legal obligations before the bill becomes law. She referred to an OfS briefing on the topic as a “signal to the sector” to look at any legal issues “now, in good time, before any new OfS powers come into effect”. 

Protecting students and staff from harassment on the one hand and the right of colleagues and peers to express themselves on the other was one area where some institutions were getting the balance wrong, she said.  

“The free speech duty requires universities to act, whereas the [public sector equality duty] requires them to think about various matters as they act,” she said. “We see universities and colleges sometimes getting this statutory framing…wrong.”  

There are concerns it may be difficult for small institutions and students’ unions to comply with all the rules laid out in the draft law, but Ms Lapworth said the hands of the OfS were tied, and it would instead need to take “real care” in its guidance to them. 

“It’s tricky in this area, because if the bill is passed, it requires us to impose mandatory conditions of registration, and it requires us to regulate student unions, and it requires us to operate a complaints scheme,” she said. “We’re not being, on the basis of the current drafting, given discretion by Parliament to decide to do those things or not.”

Patrick O’Donnell, former president of the University of York Students’ Union, said he was “quite uncomfortable” with the “really hardcore banging on about the statutory tort”, as unions and universities were trying their best to enable constructive debate.

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