Peers oppose free speech bill’s prospect of ‘endless litigation’

House of Lords opposition to the Westminster government’s plans to allow universities and students’ unions to be sued over perceived breaches of free speech show there is “little support for introducing scope for endless litigation”, according to a former Conservative universities minister.

The Higher Education (Freedom of Speech) Bill continued its delayed, bumpy progress as it reached committee stage in the House of Lords this month.

Former Tory universities ministers Lord Johnson of Marylebone and Lord Willetts were among peers from all parties to restate earlier opposition to the bill’s plan for a “statutory tort” that would enable individuals to sue English universities and students’ unions for compensation “if they have suffered loss” as a result of a breach of institutions’ duties to protect free speech on campus.

The bill also includes the creation of a new director for free speech on the board of the Office for Students, responsible for investigating breaches of free speech.

While critics did not amend the bill during committee stage, The Daily Telegraph said following the bill’s return to the Lords that ministers were understood to be considering “watering down” the tort.

“The new director for freedom of speech will have extensive regulatory powers to impose conditions of registration on any HE institutions who fall short of their enhanced duties under the legislation. This is enough,” Lord Johnson told Times Higher Education.

“There is little support for introducing scope for endless civil litigation. The tort could in fact end up being counterproductive: to my mind, it undermines the director for freedom of speech, not least by enabling people to end-run him or her in the courts.”

Lord Willetts said during the committee stage that the concern of peers was that “some event does not happen, for whatever reason, at a university, and the following day a well-organised critic fires off a letter to the OIA [Office of the Independent Adjudicator], a letter to the OfS, tries to start civil litigation, writes a letter of complaint to the vice-chancellor and phones a couple of newspapers. That is not in the interests of anyone who cares about freedom of speech and higher education.”

Eric Kaufmann, professor of politics at Birkbeck, University of London, co-author of a report for the Policy Exchange thinktank that was the source for the key elements of the bill including the statutory tort, and a member of the Free Speech Union’s advisory board, said: “We are concerned, but I think things are still very much in play.”

He added: “Regrettably the risk of being sued tends to be required to concentrate institutional minds on upholding the law since the more proximal and frequent pressure on administrators comes from the anti-[free] speech side.”

Smita Jamdar, head of education at law firm Shakespeare Martineau, said a statutory tort “sounds a superficially attractive route to redress but presents a lot of practical issues”.

“Privileging claims for free speech based on the wealth of the backers rather belies the idea of a universal right and has consequences for outside interests to indirectly influence what goes on in universities and colleges,” she said.

The issues involved in such cases would also be “complex and potentially precedent setting and will almost certainly not be suitable for small claims”, meaning free speech cases “will be expensive to litigate and the risk of being sued could therefore drive defensive practices which paradoxically reduce the opportunities to have vigorous and open debate about contentious issues”, Ms Jamdar argued.

john.morgan@timeshighereducation.com