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The Higher Education Freedom of Speech Bill - What it means for Academic Freedom

The Higher Education Freedom of Speech Bill ('the Bill') was introduced by Parliament on 12 May 2021. The Bill's intended aim is to strengthen the legal duties placed on higher education providers in England and Wales to protect freedom of speech on campuses across the country, for students, academics and visiting speakers. New measures have been proposed that will require universities and colleges registered with the Office for Students (OfS) to defend free speech. For the first time, these legal duties will extend to Student Unions (SUs). Currently, institutions, but not SUs themselves, have to ensure that they are, as a minimum, taking 'reasonably practicable steps' to ensure lawful freedom of speech in accordance with Section 43 of the Education (No. 2) Act 1986.

The introduction of the Bill followed the government's expression of commitment to generally strengthen academic freedom and free speech in higher education as set out in the government policy 'Higher Education: Free Speech and Academic Freedom' published in February 2021. Former Education Secretary Gavin Williamson said at the time: "It is a basic human right to be able to express ourselves freely and take part in rigorous debate. Our legal system allows us to articulate views which others may disagree with as long as they don't meet the threshold of hate speech or inciting violence. This must be defended, nowhere more so than within our world-renowned universities".

Progression of the Bill has attracted various viewpoints, with those in opposition to it claiming that it essentially offers protection to 'hate speech' and that it is unnecessary, given the legal obligations which are already placed on institutions to protect academic freedom, as set out in the Education Act 1986. Supporters claim that the current legislation does not go far enough, and that some working in the sector have to 'self-censor' for fear of repercussion over expressing their views, including dismissal or expulsion.

How has the Bill progressed?

The Bill had its second reading in the House of Commons on 12 July 2021. Those in support of the Bill argued that it was necessary to counter "growing intolerance" in universities and to uphold the principle of free speech in society. However, opposing MPs questioned the evidence base used as justification for the new legislation. Ultimately, a Labour amendment to prevent the Bill's passage was defeated by 367 votes to 216.

The committee stage in the Commons ran between 7 and 21 September 2021. Various amendments and additional clauses were proposed by the Labour Party and other members of the committee on academic freedom. Such amendments focused on the Bill's application to student bodies, the reporting requirements of the OfS, and the appointment process for a new Free Speech Director, none of which were ultimately accepted.

The Bill had its second reading in the House of Lords on 28 June 2022. Several issues were raised with the Bill's principles and its then current provisions, including the administrative and financial burden it could place on universities, apparent contradictions with other proposed legislation and Department for Education policy, and the appointment process of the Free Speech Director. The Bill passed its second reading in the Lords without a vote.

More recently, the Bill's committee stage in the House of Lords took place over the course of 31 October and 14 November 2022. Seventy amendments were proposed, however none were put to a vote and the Bill passed to report stage unchanged. The Bill's report stage in the House of Lords is scheduled for 7 December 2022.

What does the Bill say?

The Bill will impose new statutory duties on higher education providers and SUs to firstly secure freedom of speech and secondly to establish a code setting out a range of relevant matters. There will be a new right to bring civil proceedings against providers and SUs for breach of duty to secure freedom of speech and the OfS will be given new regulatory powers to oversee how institutions are discharging their obligations, including administration of a free speech complaints scheme. There will also be the creation of a Director of Freedom of Speech and Academic Freedom if the Bill is implemented in its current form.

How has the Bill been received so far?

As mentioned above, the Bill has been widely crticised by some, including trade unions and human rights groups. The University and College Union (UCU) briefing on the Bill states that it 'will do nothing to address the real threats to academic freedom, which are widely understood to be the use of precarious employment practices that prevent staff from researching and working freely, a lack of staff representation in university governance, and a management culture which dictates the research academics undertake'. UCU complains that freedom from state interference and government control are crucial dimensions of academic freedom and freedom of speech. They believe that the Bill 'represents another case of heavy-handed ministerial interference in the education system, which will further imperil the freedoms it purports to protect'.

UCU has supported various amendments to be made to the Bill, including a broader definition of academic freedom to include protection for trade unionists, a requirement that the new Director of Freedom of Speech cannot have donated to a political party, a renewal of the legislation after three years, and a requirement that Non-Disclosure Agreements cannot inhibit freedom of speech.

Conversely, supporters of the Bill point to published reports by Policy Exchange, focusing on academic freedom in the UK, which they say demonstrate its need and rationale. The reports in question found that:

• 2 in 10 British academics in social sciences and humanities who voted Leave in the 2016 referendum said they would share these views with colleagues. This is in comparison to nearly 9 in 10 academics who voted Remain and would share their views;
• Over 1 in 3 academics surveyed admitted that they would discriminate against a Leave supporter during the hiring process; and
• Around half of those reviewing a grant proposal with a right-wing perspective would rank it lower because of its political orientation

These statistics are often relied upon by supporters of the Bill alongside high profile cases of visiting speakers or academics being 'no platformed' by universities, or having to leave their jobs. Such examples include politician Amber Rudd, who was 'no platformed' by UN Women Oxford UK Society in 2020, allegedly only receiving notification of the cancelled event thirty minutes before it was due to start.

Despite Policy Exchange supporting the need for the Bill in general, it has proposed various amendments in line with UCU commentary and recommendations. These suggested amendments focus on the alleged need to further clarify the interaction between the Bill and the Equality Act 2010, specifically in relation to the public sector equality duty and the harassment provisions of the Act. Additionally, concerns have been raised over potentially frivolous cases being brought under the new statutory tort the Bill introduces to allow individuals to receive redress against a higher education provider or SU.

Whatever the outcome of the next stage, institutions should be prepared for the debate around academic freedom to continue, particularly with regards to its relationship to individual and collective 'emotional safety'. Until new legislation is introduced providers should remember the current and ongoing legal duties which apply to their actions, practices and procedures, and seek advice where uncertainty arises.

For more information contact Laura McHugh in our Education department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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