95: Would the Higher Education (Freedom of Speech) Bill alter the culture of UK university campuses?
The Higher Education (Freedom of Speech) Bill (the Bill), first introduced to Parliament in May 2021, aims to address what the government describes as the ‘growing chilling effect on campuses‘, with concerns around students and academics being unable to fully voice their opinions.
Under the Education (No.2) Act 1986 (the Education Act), universities, polytechnics and colleges are required to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.’ The Human Rights Act 1998 is the other main piece of legislation which protects freedom of speech.
The Higher Education and Research Act 2017 (the 2017 Act) sets out the general duties of the Office for Students (the OfS), the independent regulatory body for higher education in England. The Bill would insert into the 2017 Act the need for the OfS to promote the importance of freedom of speech and protect academic freedom in higher education. Under this additional clause, the Secretary of State would also have the power to require the OfS to report on matters relating to freedom of speech and academic freedom. Whilst the OfS is currently required to prepare and submit to the Secretary of State, an annual performance report of its functions, the Bill would also allow for the Secretary of State to require a ‘special report on such matters relating to freedom of speech and academic freedom as may be specified in the direction.’ Further emphasis on the role of the OfS is added by the draft Bill in introducing a Director for Freedom of Speech and Academic Freedom to oversee the OfS’ performance.
The Bill aims to extend the protections afforded by the existing legislation by requiring higher education institutions to have a ‘particular regard to the importance of free speech’, and for student unions to actively protect free speech. Higher education providers must also ensure academic staff are provided with academic freedom. Academic freedom is defined as ‘their 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 […].’
‘Adversely affected’ for the purposes of the Bill relates to risking the loss of jobs or privileges at the provider and the reduction in likelihood of securing promotions or different jobs at the provider. Academic staff are therefore only protected under the Bill insofar as their freedom relates to their field of expertise. Conversely, the Education Act covers academics’ freedom of speech regardless of whether this relates to their field of expertise, which arguably allows academics unnecessarily wide protection from hate speech. ‘Hate speech’ can be defined as an offence under Section 4A of the Public Order Act 1986, as inserted by the Criminal Justice and Public Order Act 1994. Section 4A(1) states that:
‘A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.’
The Bill would also increase choice for students seeking redress because they consider that freedom of speech has not been facilitated on campus. Currently, students are able to follow the internal grievance procedures at their institution, failing which, they can approach the Office of the Independent Adjudicator (OIA). Remedies for a successful OIA complaint can address any upheld aspect of a complaint and include academic appeal, disciplinary or fitness to practice procedures. In a recent case, Huddersfield University was ordered to apologise to a PhD student who was reprimanded over allegedly ‘transphobic’ tweets. The Bill would offer the additional route of applying to the new Director for Freedom of Speech and Academic Freedom responsible for overseeing the OfS. The OfS however, would be able to offer narrower remedies and only in respect of the freedom of speech concerned.
The Bill would also introduce a new statutory tort, whereby civil proceedings may be brought against a higher education institution or student union for breach of their duties in relation to free speech. For example, guest speakers who have been invited to events hosted by higher education providers and subsequently removed from event schedules due to student protest, would have a cause to claim compensation from the institution, should they feel they have been ‘de-platformed’. Students and academics can also seek compensation from providers and student unions, should they be found to have failed to uphold their duties to protect free speech.
Despite the aim of shifting campus culture in order to actively promote free speech, the Bill has sparked significant controversy and has been described in a parliamentary debate by Kate Green, Shadow Secretary of State for Education, as ‘a hate speech protection bill.’ The government has emphasised that the Bill would not promote or otherwise protect any form of unlawful or hate speech. Rather, the aim is to enable the OfS to make those decisions that would otherwise be referred for court judgment. Critics will argue that the addition of a new statutory tort may over complicate the process and introduce more legal procedures and costs. In addition, allowing students the option of pursuing a complaint with the OIA or OfS with differing remedies may be cause for confusion.
The Bill has also been criticised by Labour MPs on the ground that higher education institutions and student unions would be forced to pay unwelcome legal insurance and administrative costs, including costs for compliance, in enforcing new regulations and introducing new codes of practice. Critically, this is likely to diminish the funds available for teaching and research. The National Union of Students Vice President Hillary Gyebi-Ababio stated in a submission to the Public Bill Committee that the new Bill could in fact result in student unions becoming ‘more risk averse to inviting speakers. They just cannot handle the prospect of having to pay lots of money in the case of litigation.’ Concerns also remain around the potential to enable unlawful or hate speech, as a result of promoting free speech.
A third criticism of the Bill turns on a perceived difference of treatment for student bodies at different universities. As currently drafted, the Bill would subject universities and their student bodies (ie the university student union) to the duties in the Bill, plus ‘any constituent college, school, hall or other institution of the provider’, in order to capture to the constituent colleges which make up certain universities such as Oxford, Cambridge and Durham. However, the government has argued that it is not necessary to extend the duties in the Bill to the student bodies of those constituent colleges, known at Oxbridge colleges as the (undergraduate) Junior Common Room (JCR) and (graduate) Middle Common Room (MCR). This arguably puts a Oxford JCR/MCR in a different position to the Oxford University Student Union or the (rather more well-known) debating club, the Oxford Union.
So, whilst in principle the Bill is intended to promote a liberal approach to freedom of speech and expression in Higher Education institutions, it appears that there are some ambiguities and potential issues to iron out. Student Unions are already under financial pressure, particularly following the pandemic, and the threat of potential fines and civil action against them for failure to uphold their legal duties in facilitating freedom of speech may only exacerbate the burden. Arguably, this would result in the opposite effect of the intention of the Bill, in discouraging the extension of invitations to potentially controversial speakers for example, which may have aided campus culture by showcasing different viewpoints and widening conversations.