The return of the free speech tort comes with caveats

Yes, more free speech fun for a Friday evening

David Kernohan is Deputy Editor of Wonkhe

The compromise is in for the Higher Education (Freedom of Speech) Bill, ahead of Lords Consideration on 21 March.

You may remember back at Lords Report stage, just before David Willetts led a revolt to dump the entire of Clause 4, that a series of government-supported amendments limited the scope of the statutory tort.

After some superb lawyerly analysis from peers the government supported a number of amendments to the Bill – specifically to allow the tort to be made use of after one of the other routes for redress (the Office for Students and Office for the Independent Adjudicator) had been exhausted, and only where the individual in question had suffered a loss.

What this meant is that if you wanted to take a university or SU to court for infringing your freedom of speech you had to have proper go at getting redress in another way, and have actually suffered a loss that could be compensated. This is pretty standard for civil torts anyway, and the idea that these strictures would not apply under the terms of the Bill always stuck me as bad drafting rather than any claim of legal exceptionalism.

The whole thing quickly became moot when Willetts demolished the whole clause, but it was a consensus.

In the Commons, for reasons best known to herself, Undersecretary of State for  Children, Families, and Wellbeing Claire Coutinho (who for some reason has responsibility for this Bill) decided to return to the entire original clause 4 without the agreed safeguards, despite conceding in the chamber that it was a “rare” last resort. It was always clear that this would not pass muster with peers, and the last month-and-a-bit has seen the Usual Channels wearing down this pointless posturing to get back to where everyone agreed we should be before Christmas.

The usual crew of free speech ultras will enjoy performatively losing their minds about this very sensible change. SUs and universities will be happy that it is still possible to consider inviting the small number of speakers that are both controversial and worth listening to onto campus without hefty insurance to cover legal bills. And with the tort the only part of the Bill that could not have been achieved via a ministerial letter to the Office for Students, whoever it is in government that still cares about this two-year-old legislation can have the briefest feeling of achievement.


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