Clauses 1 and 2 strengthen freedom of speech duties on registered higher education providers and extend them to students unions at approved fee cap providers. Clause 3 plugs an identifiable and substantive gap in the current legislative framework by providing individuals with a route of redress for loss suffered as a result of a breach of these freedom of speech duties. Clause 3 therefore creates a new statutory tort. This enables civil proceedings to be brought against a higher education provider in respect of a breach of the new duties under section A1 of the Higher Education and Research Act 2017, or against a student union in respect of a breach of the section A4 duty.

Individuals can still complain in the first instance—for free—to their higher education provider or student union if they consider that there has been such a breach. They can subsequently complain for free to the new complaints scheme that will be operated by the Office for Students, and students will still be able to complain for free about their provider to the Office of the Independent Adjudicator for Higher Education. However, the statutory tort will also be available, although we are clear that it is intended to be a route of last resort.