Free speech bill: Peers scrap right to sue but add NDA ban

The UK government’s plans to give students and academics the right to sue universities over free speech concerns have been dealt a blow by the House of Lords.

Peers had already forced amendments to the Higher Education (Freedom of Speech) Bill by ensuring individuals exhausted all other options before seeking legal action, but then voted to scrap the controversial clause entirely after a lengthy debate.

Former universities minister Lord Willetts, who led the opposition to the controversial “statutory tort” included in clause 4 of the bill, successfully argued it would cause an excess of litigation for universities to deal with and further reduce the very freedom of speech it was trying to protect.

Others said the government spokesman Lord Howe’s attempt to modify the clause was a “feeble” attempt to protect academics, and would have a “chilling effect on the academic sector”.

The amendment to scrap clause 4 entirely was voted through by 218 to 175 during the debate on 7 December, with Lord Willetts one of just three Tory peers going against the government. MPs will consider the Lords’ amendments when the bill returns to the House of Commons next year.

Peers also successfully amended the legislation to ban the use of non-disclosure agreements when settling harassment and sexual misconduct cases. Former higher education minister Michelle Donelan had previously urged universities to sign up to a voluntary pledge not to use NDAs but the government’s representatives in the Lords backed going further because too few universities had signed up. 

“We cannot allow this practice to continue,” said Baroness Barran, the education minister during the debate after an amendment was proposed by Labour peer Lord Collins.

The free speech bill – which was first introduced to Parliament in May 2021 and has faced a bumpy road since then – proposed the creation of the “statutory tort” to enable individuals to sue 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. Supporters said the threat of legal action would ensure universities followed their new duties under the bill. 

But opponents claimed this would be counterproductive and overly litigious, especially as the bill also hands powers to the regulator, the Office for Students, to take action against universities not following the law. 

Speaking in the chamber, Lord Willetts backed the principle of the bill but warned that the empowering of the OfS, alongside a new proposal for a right of tort and civil litigation, was a “very odd way” of tackling the problem – and said the government should have confidence in its regulator.

He said clause 4 would have the “opposite effect” to what it intended and the threat of legal letters would frighten those who set up student societies into not inviting controversial speakers.

Lord Grabiner, a crossbench peer, said it would be an “open invitation to ill-motivated troublemakers” who would use the courts as a public platform to advance their own ideological agenda, against poorly funded universities and student unions.

He warned that it would have a “chilling effect on the academic sector”, and would lead to figures who are perceived to be controversial, such as author J. K. Rowling, being effectively shut out of campuses.

“Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited,” he said.

And he said the clause would not have been any help to Kathleen Stock, the former University of Sussex professor who left her institution in 2021 after being targeted by activists over her stance on transgender rights. 

Lord Moylan said the government’s “feeble” amendment was a signal to academics that it was “no longer interested”, nor on their side.

patrick.jack@timeshighereducation.com