Briefing: Higher Education (Freedom of Speech) Bill – Statutory Tort

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03 February 2023

During debates in the House of Lords in 2022 the introduction of the statutory tort was opposed by wide range of peers from all sides on the Chamber.

Senior Crossbenchers, Conservatives and opposition front bench spokespeople spoke against its inclusion on the face of the Bill, with former ministers and legal experts raising a series of concerns with the Government’s proposals.

The Russell Group shares the view of many peers that the tort could have unintended consequences contrary to the aims of this legislation. This includes the possibility of increased legal risk reducing the likelihood of universities and students’ unions seeking to arrange events which could lead to litigation.

At present, internal grievance and complaints processes offer staff and students significant opportunities to seek redress when they feel their right to free speech has been infringed. In the event internal processes do not conclude in a way that satisfies an individual, students can take their grievance to the Office of the Independent Adjudicator (OIA) and university staff have recourse through employment law and tribunals.

The amendments put forward by Government at report stage in the Lords which clarified complainants should pursue claims through these robust existing routes to redress and the new OfS free speech scheme before initiating a civil claim were a positive step. However, they were not sufficient to address the range of concerns outlined by peers.

The removal of the tort from the legislation was a sensible step that reduced the risk of unintended consequences without undermining the core aims of the Bill.

If returned to the Bill, the tort would add significant complexity for complainants, universities and students’ unions. Managing the potential for litigation would also likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.

Read our full briefing, which includes key quotes from members of the House of Lords, below.