In the free speech bill, the tort returns – but will it remain a backstop?

They went a bit too far, really.

We’re (still) talking here about the “statutory tort” – Clause 4 of the Higher Education (Freedom of Speech) Bill that enables staff, students and visiting speakers to sue a university or SU for not upholding their free speech or academic freedom duties.

In the Lords just before Christmas, peers opposed to the provision were offered a compromise by the government – it would only be able to be deployed if internal and Office for Students/Office of the Independent Adjudicator procedures had been exhausted.

But giddy with excitement as the festive break drew near, Lord Willetts’ woke mob turned its nose up at that offer and had the numbers to just delete the thing altogether – setting itself on a guaranteed collision course with the Commons when “consideration of Lords amendments” was scheduled in the new year.

For some reason, children’s minister Claire Coutinho holds the “free speech in education” brief, and the good news is that while the Free Speech Union and their ilk still want to be able to send threatening letters at the first hint of a risk assessment, she sent some subtle hints that the idea of the tort-as-backstop is still very much on the table:

In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS or the OIA. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.”

We might safely assume that the Lords will now accept the compromise – and hopefully that will see a Bill that feels like it’s been bouncing around Parliament since the dawn of all time will land on OfS’ desk to start implementing.

There has always been a profound paradox at the heart of the proposal. In the government’s mind there are countless people trying to speak on campus – only to be thwarted by university and SU wokesters cloaking their tactics in bureaucracy.

That case was made again last night by Coutinho and those whipped to speak on the government’s side – with the usual collection of Orwell quotes, anecdotes and the dodgy dossier of research that underpinned the original Policy Exchange reports that led to the Bill:

Our generation is facing our own battle for freedom: the freedom to express our opinions and debate controversial ideas without fear or favour.

Later Miriam Cates (MP for Penistone and Stocksbridge) quoted the usual self-censorship stats, claimed that Nadhim Zahawi had been cancelled (not by HMRC of course), and quoted that OfS data on 193 cancelled speaker requests. As a reminder, 29 were rejected over health and safety, 157 were canned over procedure (ie can I book a room tomorrow? No) and just 8 of the 193 were stopped for “other reasons”.

Her contribution, with no irony, ended with the line:

We must return to ideas and policies based on evidence and reality

In that world view, the legislation will enable free speech where there is a clamour for it – but this is a world where legislation gets some people served at the bar faster – when across most of the sector, there may be nobody in the pub in the first place.

Hence the other side of the paradox was put by Lloyd Russell-Moyle (MP for Brighton, Kemptown), who was right to point out that outside of the Russell Group, universities and SUs considering inviting controversial speakers to campus will simply say:

It is too complicated to invite a speaker in. It is too risky for student unions, so they will just not be invited.

As our own research found back in 2021, a disproportionate number of external speakers are booked to appear at the country’s most elite universities. Across SU society events during 2019/20, we found that 71 per cent of all external speaker bookings were taking place at Russell Group universities.

Lia Nici (MP for Great Grimsby) was somewhat confused:

… because the Bill is not designed to limit freedom of speech; it is actually there to protect it and to ensure that people are not cancelled.

We’ll likely have to find out the hard way that to be cancelled, you have to be invited to start with.

Of course if OfS has been interested in supplying light rather than heat into the debate, it could have told MPs whether its figures showed all students having the same sort of access to the breadth and depth of political engagement and exposure to debate and controversial ideas as others. It chose to supply insinuation for the government’s position instead.

To be honest the best bit of the Bill, celebrated from all sides of the house, remains the surprise addition of a ban on NDAs over misconduct complaints in universities – which, we were reminded by Layla Moran (Oxford West and Abingdon), became inevitable when only four out of 75 Oxbridge colleges played ball with Michelle Donelan’s support of a pledge to outlaw them voluntarily.

In another world, doing some grown up analysis on who feels able to speak on campus and who doesn’t – rather than replaying decades old moral panics about censorious students – feels like a prize still worth pursuing.