The Freedom Of Speech Bill: What It Means For The UK Higher Education Sector – Consumer Protection – UK – Mondaq News Alerts

On 12 May 2021, Higher Education (Freedom of Speech) Bill wasintroduced to Parliament, to tackle what the government refers toas the 'growing chilling effect on campuses' whereby itfeels students and academics are being silenced and censored.

The Bill has been strongly opposed by opposition parties butwill in all likelihood be passed considering the government'sconsiderable majority. Therefore higher education providers shouldbe using the time before the Bill becomes law to consider how theywill manage its implications. Critics of the Bill have commentedthat providers may find they are facing more uncertainty, ratherthan less, about how freedom of speech should be dealt with oncampus.

So what exactly is this Bill trying to address? There havecertainly been high profile cases of speakers being'no-platformed' by university students' unions, such asformer Home Secretary Amber Rudd. Recent debates around'de-colonising' curriculums have led to comparisons withcensorship. However, the Office for Students has releasedstatistics showing that in the Year 2017/18, of 59,574 events heldat higher education institutions, only 53 events were rejected,indicating that 'no-platforming' is in fact a relativelyminor problem.

Furthermore, there already is legislation protecting freedom ofspeech. The Education Act 1986 places a duty on universities,polytechnics and colleges to take such steps as are reasonablypracticable to ensure that freedom of speech within the law issecured for members, students, employees and visiting speakers. TheEuropean Convention on Human Rights also protects free speech.

This raises the question, given the incidents that thegovernment are aiming to address seem to be relatively rare andlegal protections already exist, will the additional protections tobe introduced by the Bill be proportionate?

The Bill is bringing in a number of changes. The implications ofsome will be clear, but for others, higher education providers maybe 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' whencarrying out the duty of ensuring that freedom of speech issecured.

How a higher education provider could change what they are doingin practical terms to demonstrate this 'particular regard'is not entirely clear. Should it now take precedence over otherduties? On the other hand, the Bill will now impose a duty onstudents' unions to protect free speech, which will close a gapin the law.

As part of the duty to protect free speech, Higher EducationProviders must also secure the 'academic freedom' of theiracademic staff. This is defined as staff's 'freedom withinthe law and within their field of expertise (a) to questionand test received wisdom, and (b) to put forward new ideas andcontroversial or unpopular opinions, without placing themselves atrisk of being adversely affected'. The definition restricts amember of staff's freedom of speech to their field ofexpertise. The Education Act duty to protect free speech will stillapply to an academic who is expressing a view outside their fieldof expertise, but the distinction drawn in the Bill may cause someconfusion and seems out of place when the intention is tostrengthen protection for academic staff.

Freedom of speech is defined by the Bill as including freedom toexpress ideas, beliefs and views without suffering adverseconsequences. The extent of what constitutes an 'adverseconsequence' is not defined. If interpreted as a low bar, thiscould include criticism. For example, if students choose to walkout of a lecturer's class, would that be an adverseconsequence, and if so, how would that interact with thestudent's right to freedom of speech? There is uncertainty overthe extent of a higher education providers duties to protectfreedom of speech, which is a particular issue as the Bill alsointroduces the ability for a person to bring a civil claim againsta higher education provider in respect of a breach of the duty.

The Bill also requires both higher education providers andstudents' unions to ensure use of their premises are not deniedto someone because of their ideas, beliefs or views, and that theterms on which premises are provided are not based on such ideas,beliefs or views. If a particularly controversial speaker isattending a students' union, could the students' unionintroduce terms to ensure the event is held safely? Even ifsensible, would these terms be a breach as they are based on thefact that the speaker held a particular view?

A more concrete change to be introduced by the Bill is theenhanced role of the Office for Students (OfS), overseen by a new'Director for Freedom of Speech and Academic Freedom'. TheOfS will be promoting the importance of free speech and running ascheme to determine free speech complaints in the higher educationsector.

Conditions for registration with the OfS will include that aprovider's governing documents and management arrangementsenable it to comply with the duties in the Bill relating to freespeech. Compliance will also be an ongoing registrationrequirement. In addition, the OfS will be tasked with monitoringwhether students' unions are complying, and registered highereducation providers are required to keep the OfS informed about itsstudents' unions.

The new complaints scheme will be for members of staff, studentsor visiting speakers who have been adversely affected by a highereducation provider's or students' union's breach of itsduties in relation to free speech. Before a compliant can be madehowever, any internal procedures must first be exhausted. If theOfS considers a complaint to be justified, it may make arecommendation to the higher education provider or students'union to take action, including paying a fine, or refrain fromtaking certain action. Interestingly, the question of whether afree speech complaint is justified will in many situations requirean assessment of the law by the OfS to determine if the speech inquestion was within the law. The government has insisted that theBill will not protect any unlawful or 'hate' speech, butthe OfS will be able to make such legal judgments, which wouldusually be reserved for the courts.

As the Bill makes its way through parliament, some of theambiguity may be ironed out, but until then, it would not beunreasonable if Higher Education Providers felt unsure of how bestto prepare for the changes it will bring in.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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The Freedom Of Speech Bill: What It Means For The UK Higher Education Sector - Consumer Protection - UK - Mondaq News Alerts