107: The Higher Education (Freedom of Speech) Bill – could it cause more harm than good?

Following our previous entry back in February 2022, we revisit the Higher Education (Freedom of Speech) Bill (the ‘Bill’) for a brief update on its recent progress and in particular, its apparent failure to address the controversial ‘Prevent’ duty under the Government’s ‘CONTEST’ strategy. Having initially been introduced in the House of Commons in May 2021, the Bill has now passed its Second Reading in the House of Lords.

Update on progress

Most modifications made to the Bill as introduced to the Lords appear to be relatively minor. The duties, as introduced by the Bill and addressed in our previous entry, have been extended to higher education institutions ‘and their constituent institutions’, seemingly addressing the criticisms in the Commons around the duties under the Bill not previously applying to Oxbridge colleges. ‘Constituent institutions’ for the purposes of the Bill, means any constituent college, school, hall or other institution of the provider.

More controversially, the modified Bill has now been brought into line with the Education (No 2) Act 1986 (the Education Act), to protect academics’ freedom of speech regardless of whether this relates to their field of expertise. While it is generally accepted that it is in the fundamental interest of academics and higher education institutions to be viewed by the public with confidence and respect, some have argued – see for example this article by the think tank – Higher Education Policy Institute – that restricting academics’ freedom of speech to their field of expertise would better secure and maintain public confidence. Further, failing to limit protection of academics’ freedom of speech exacerbates particular political biases which exist within academia and higher education institutions or, at least, fail to address them. As a result, this amendment has fuelled the cause of those who already viewed the Bill as a ‘hate speech protection bill’, as previously discussed in February’s blog.

Freedom of Speech and the ‘Prevent’ Duty

The Bill has also been criticised for failing to engage properly with the Government’s own ‘Prevent’ duty. Under Section 26 of the Counter-Terrorism and Security Act 2015, universities (as with other public bodies) have a general duty to ‘have due regard to the need to prevent people from being drawn into terrorism’. The Prevent strategy is itself controversial, with concerns that it facilitates discrimination in public services and encourages a culture of self-censorship. Critics – such as Sarah Owen MP, speaking in this House of Commons debate –  say the Bill continues to enforce the broad ‘Prevent’ duty, which seeks to criminalise individuals who may seek to share their views on potentially challenging topics.

The Government claims that the Bill would assist in ‘changing the wider culture on university campuses so that everyone has an equal right to be heard and peacefully challenged … with tolerance of different opinions’. But the University and College Union disagrees, suggesting that the Government’s ‘Prevent’ strategy is, in fact, threatening free speech and academic freedom, whilst the Bill is ‘the government using freedom of speech as a Trojan horse for increasing its power and control over staff and students.’

As highlighted in this article by the UK Constitutional Law Association, the Government’s White Paper on free speech and academic freedom in higher education, references the Joint Committee on Human Rights (JCHR)’s findings regarding the ‘Prevent’ duty. Of particular interest was the JCHR’s conclusion that:

‘the fear of being reported for organising or attending an event [on campus], combined with increased levels of bureaucracy following the introduction of the Prevent Duty, is reported to be having a “chilling effect” on freedom of speech.’

Whilst in its White Paper, the Government reiterates that the Prevent Duty should not be used to suppress lawful free speech, the modified Bill fails to address the issues highlighted by the JCHR.

To add to the ambiguity concerns raised in our February blog, this has the potential to be a great cause for confusion for higher education institutions in attempting to balance the conflicting requirements under the ‘Prevent’ strategy, as against the Bill (if implemented as currently drafted). If these discrepancies are not addressed as the Bill continues to progress through Parliament, could the Bill have the potential to cause more harm than good?

The Bill is currently in the Committee stage in the House of Lords, after which it will move to report stage for further scrutiny, before its third (and final) reading in the House of Lords.