The tort is back – but will it survive the Commons?

In the Lords, the free speech Bill now has had its tort reinstated, albeit in a “soft” variety.

But believe it or not, there are still indications that the debate over this legislation could run a little longer.

The afternoon looked all set to see the Lords settle on the compromise that had been originally reached before Christmas, before Lord Willetts got all giddy and deleted the thing altogether – returning to the ability to sue a university or SU over a failure in its duties only once one of the two ombuds processes has been exhausted.

But it looks like several members were unhappy with this “fudge”. Crossbench peer Lord Grabiner gave us a sense of the backroom shenanigans (“usual channels”) accompanying the negotiations when he revealed that during the afternoon, Lords had all received an email from the government that included this ominous phrase:

Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the government may wish to explore further opportunities to achieve consensus when it returns to the Commons.

His point was that the implication was that the government might return to hard/scary/upfront tort once the Bill pongs back to the Commons – and given the underpinning assumption about the need for “hard tort” was soft regulation, he urged that ministers instead tell OfS to “pull its finger out”.

One of “those affected by the Bill at the forefront of our minds” was doubtless Baroness Fox, who had already signalled to the Telegraph that she intended to regale the house with a long anecdote concerning her own cancellation from a speaking engagement at Royal Holloway SU’s Debating Society.

In Fox’s version of events, DebSoc had issued an invite and, having ploughed through the paperwork, was all set to welcome Fox to campus last month. Six societies had gotten wind of the booking and objected, at least in part, on the basis of Fox’s retweeting of a Ricky Gervais joke about trans people.

SU President Maia Jarvis then wrote what Fox describes as a “menacing” message to the debating society, stating:

I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”

For Fox, this was a “supposedly impartial” SU inappropriately judging outside speakers’ political views, using a form of “coercive control and pressure” to “badger” the debating society committee to cancel the talk.

Fox says an email from the organiser backed up that view:

I’ve decided to cancel for the sake of the future of the society and its reputation on campus … It is the only option I have at this point to protect the committee and the society for the future. After back and forth with the SU, it seems that they will find any way to make your visit onto campus an issue of student safety and wellbeing. I see it as nothing less than bullying.”

But here’s the thing. The event was allowed to go ahead. It wasn’t cancelled by the SU. What Jarvis had done was convey both the views of some of her societies, and her own views, to another student. You can agree or disagree with Jarvis’ judgement on Fox or views about her all you like – but are we really saying that she should have hidden or shielded those views from the debating society?

Are we really saying, in other words, that students shouldn’t be able to disagree with each other in this way?

Is free speech the DebSoc being protected from what Fox described as “bullying” from Jarvis, by muzzling and silencing the elected student leader from debating her views on Fox and Gervais? Or is free speech letting DebSoc, Jarvis and the six student societies all talk in public about things, debating the relative importance of concepts like freedom of speech and the impact on marginalised students of “jokes” that we would never allow in a seminar or lecture theatre?

And anyway. Let’s imagine that, DebSoc having realised that the invite might upset others and resolved to cancel the event, what is the SU or the university supposed to do? Force DebSoc to go ahead? Discipline its committee if it doesn’t?

Later, Fox said that she did not mind if students invite her and then disinvite her:

All I care about is if students are bullied into disinviting me

As I’ve said before on here, it’s not at all clear that legislation in general, or this legislation specifically, would, could or should ever frame Jarvis’ email as “bullying” as opposed to “standing up for the bullied” – and more importantly, the idea that it’s legislation that can govern what is and isn’t popular on campus really is for the birds.

Elsewhere, the debate was on familiar ground – three mentions each of Oxford and Cambridge, no mentions of the FE providers’ SUs that will be caught by the legislation, and so on – although for those playing the drinking game, the notable lack of mention of Kathleen Stock for a change will mean they remained comparatively sober when compared to previous debates. Surprisingly, peers did not draw the obvious parallel to the Gary Lineker/BBC affair like Keir Starmer did at PMQs the other week.

It was, as usual, Lord Willetts that had the most sensible things to say. Responding to Fox’s lament at bureaucracy and risk assessment, Willetts spoke for every SU activities manager in the country when he revealed his own theory on where the form filling had come from:

I am speculating, but I think I know where that bureaucracy comes from: it is the Prevent initiative. I remember my conversations with officials in the Home Office who said to me, “There are extremists being invited to speak at universities and we need to have a process to make sure extremists who will stir up hatred are not allowed to speak”. I remember meetings with Home Office Ministers where, if I may say so, it is possible that I made some of the points that the noble Baroness made. But the pressure was, “We cannot allow an unregulated approach; we need to know who these speakers are so we can check if they’re potentially going to infringe the law”. That, I suspect, is the origin of the bureaucracy. That is where it started, over a decade ago.

And he also disabused Lords that had though the OfS to be producer-captured of the idea that it needed to be side-stepped with hard tort:

I would invite noble Lords on all sides of the House to read, for example, the recent letter of complaint from universities about the OfS, saying precisely that it was too aggressive, that it was not working with them and that it was a heavy-handed regulator. The idea that the OfS is some kind of patsy that has been put up to put off any intervention is a complete misreading of the powers that it already has under legislation steered through Parliament by my noble friend Lord Johnson of Marylebone and that are now enhanced by this legislation.”

Back to the Commons next, where we’ll discover whether the threat to harden up the tort was just a note of reassurance to calm tempers today, or a real attempt to prolong the ping pong.

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