On 12 May 2021, Higher Education (Freedom of Speech) Bill was introduced to Parliament, to tackle what the government refers to as the 'growing chilling effect on campuses' whereby it feels students and academics are being silenced and censored.
The Bill has been strongly opposed by opposition parties but will in all likelihood be passed considering the government's considerable majority. Therefore higher education providers should be using the time before the Bill becomes law to consider how they will manage its implications. Critics of the Bill have commented that providers may find they are facing more uncertainty, rather than less, about how freedom of speech should be dealt with on campus.
So what exactly is this Bill trying to address? There have certainly been high profile cases of speakers being 'no-platformed' by university students' unions, such as former Home Secretary Amber Rudd. Recent debates around 'de-colonising' curriculums have led to comparisons with censorship. However, the Office for Students has released statistics showing that in the Year 2017/18, of 59,574 events held at higher education institutions, only 53 events were rejected, indicating that 'no-platforming' is in fact a relatively minor problem.
Furthermore, there already is legislation protecting freedom of speech. The Education Act 1986 places a duty on universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. The European Convention on Human Rights also protects free speech.
This raises the question, given the incidents that the government are aiming to address seem to be relatively rare and legal protections already exist, will the additional protections to be introduced by the Bill be proportionate?
The Bill is bringing in a number of changes. The implications of some will be clear, but for others, higher education providers may be left scratching their heads about how to respond. For example, the Bill now requires higher education providers to have 'particular regard to the importance of free speech' when carrying out the duty of ensuring that freedom of speech is secured.
How a higher education provider could change what they are doing in practical terms to demonstrate this 'particular regard' is not entirely clear. Should it now take precedence over other duties? On the other hand, the Bill will now impose a duty on students' unions to protect free speech, which will close a gap in the law.
As part of the duty to protect free speech, Higher Education Providers must also secure the 'academic freedom' of their academic staff. This is defined as staff's 'freedom within the law and within their field of expertise – (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected'. The definition restricts a member of staff's freedom of speech to their field of expertise. The Education Act duty to protect free speech will still apply to an academic who is expressing a view outside their field of expertise, but the distinction drawn in the Bill may cause some confusion and seems out of place when the intention is to strengthen protection for academic staff.
Freedom of speech is defined by the Bill as including freedom to express ideas, beliefs and views without suffering adverse consequences. The extent of what constitutes an 'adverse consequence' is not defined. If interpreted as a low bar, this could include criticism. For example, if students choose to walk out of a lecturer's class, would that be an adverse consequence, and if so, how would that interact with the student's right to freedom of speech? There is uncertainty over the extent of a higher education providers duties to protect freedom of speech, which is a particular issue as the Bill also introduces the ability for a person to bring a civil claim against a higher education provider in respect of a breach of the duty.
The Bill also requires both higher education providers and students' unions to ensure use of their premises are not denied to someone because of their ideas, beliefs or views, and that the terms on which premises are provided are not based on such ideas, beliefs or views. If a particularly controversial speaker is attending a students' union, could the students' union introduce terms to ensure the event is held safely? Even if sensible, would these terms be a breach as they are based on the fact that the speaker held a particular view?
A more concrete change to be introduced by the Bill is the enhanced role of the Office for Students (OfS), overseen by a new 'Director for Freedom of Speech and Academic Freedom'. The OfS will be promoting the importance of free speech and running a scheme to determine free speech complaints in the higher education sector.
Conditions for registration with the OfS will include that a provider's governing documents and management arrangements enable it to comply with the duties in the Bill relating to free speech. Compliance will also be an ongoing registration requirement. In addition, the OfS will be tasked with monitoring whether students' unions are complying, and registered higher education providers are required to keep the OfS informed about its students' unions.
The new complaints scheme will be for members of staff, students or visiting speakers who have been adversely affected by a higher education provider's or students' union's breach of its duties in relation to free speech. Before a compliant can be made however, any internal procedures must first be exhausted. If the OfS considers a complaint to be justified, it may make a recommendation to the higher education provider or students' union to take action, including paying a fine, or refrain from taking certain action. Interestingly, the question of whether a free speech complaint is justified will in many situations require an assessment of the law by the OfS to determine if the speech in question was within the law. The government has insisted that the Bill will not protect any unlawful or 'hate' speech, but the OfS will be able to make such legal judgments, which would usually be reserved for the courts.
As the Bill makes its way through parliament, some of the ambiguity may be ironed out, but until then, it would not be unreasonable if Higher Education Providers felt unsure of how best to prepare for the changes it will bring in.
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