Legal action a ‘last resort’ as campus free speech bill redrawn

Individuals will be able to sue UK universities and students’ unions under new free speech legislation only if they have exhausted all other options, under amendments being made to the bill in the House of Lords.

After coming under pressure from peers and sector leaders over concerns about “endless litigation”, the government’s spokesman, Lord Howe, has sought to amend the legislation to ensure that grievances can be taken to the courts only as a last resort.

His amendment states that a person may begin civil proceedings only if they have “brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme” and “a decision has been made under that scheme as to the extent to which the complaint was justified”.

This would mean a university and the regulator, the Office for Students, would have the chance to consider a complaint before legal action is taken. The move has been criticised by free speech campaigners as giving universities “multiple opportunities to run down the clock”.

The amendments seek to assuage concerns expressed by peers that the “statutory tort” included in the Higher Education (Freedom of Speech) Bill could be counterproductive and lead to “vexatious” cases.

Lord Howe – whose amendments were set to be considered when the bill returns to the Lords for its report stage – is also seeking to ensure that claimants will have to prove that they had suffered a loss before beginning proceedings.

Sector bodies and politicians including the Russell Group and former ministers had previously urged the government to remove or amend the tort because of concerns that it would allow individuals to pursue their complaints via various methods at the same time.

Former Tory universities minister Lord Johnson of Marylebone told Times Higher Education previously that he feared the tort would undermine the powers of the new director for freedom of speech, a position being created by the legislation, by “enabling people to end-run him or her in the courts”.

Supporters argue that the threat of being sued is one of the most effective measures included in the bill to ensure that universities and students’ unions follow their new obligations.

The free speech director – who will sit on the OfS’ board – will also be handed extensive regulatory powers such as the ability to impose fines or conditions of registration on any higher education institution that does not comply with the legislation.

Tim Bradshaw, chief executive of the Russell Group, said universities had “always been clear that any new legislation must be effective and not a duplication of existing measures”.

“The proposed amendments are an important step forward, offering clarity for students, staff and speakers on how proposed measures like the statutory tort interact with existing procedures. Importantly, they increase protections against it being used for frivolous claims,” Dr Bradshaw said.

“However, there are still strong arguments that individual routes to redress would be better provided by the OfS complaints scheme, and we remain concerned that the bill could put off universities and, in particular, students’ unions from hosting potentially controversial speakers, particularly as the scale of potential legal costs remains unclear.”

But Bryn Harris, chief legal counsel at the Free Speech Union, described the amendment as “disappointing”.

“The purpose of the tort is not to make university disputes costlier and nastier, but to prevent disputes arising in the first place by creating an adequate risk factor that deters heavy-handedness. That risk factor will be significantly decreased if universities will have multiple opportunities to run down the clock,” he said.

tom.williams@timeshighereducation.com