Some big legal questions hang over the new free speech bill

Smita Jamdar interrogates the government's new legislation on free speech and academic freedom and finds much to be concerned about.

Smita Jamdar leads the education team at Shakespeare Martineau

The long-threatened Higher Education (Freedom of Speech) Bill has finally been published and there are a number of areas of specific concern that it is to be hoped will be clarified or addressed as the bill makes its way through Parliament.

In any event, institutions should start thinking now how they will manage the risks created by the new legislation.

The bill purports to give effect to the government’s manifesto commitment to strengthen freedom of speech and academic freedom in universities and higher education providers, as amplified in the proposals published earlier this year which we covered in this blog.

Broadly the bill provides for confirmation of the existing duty on institutions to uphold freedom of speech for staff, students and visiting speakers, and the addition of a new duty to promote the same; the introduction of new duties on students’ unions; further requirements for codes of practice; the introduction of the right to bring a civil action for breach of the statutory duties; and the creation of a complaint scheme to be administered by the OfS through a new Director of Freedom of Speech and Academic Freedom.

Areas of concern

Although the duty remains to do what is reasonably practicable to ensure free speech, in deciding how to achieve this governing bodies will have to have particular regard to the importance of free speech. This could be interpreted to mean that institutions will be expected to devote more resources to ensuring free speech than to other areas that have not been considered sufficiently important to require statutory protection.

This could obviously stretch already depleted budgets elsewhere. What it will be considered reasonable to expect institutions to deprioritise in order to fund the “particular importance” of free speech remains to be seen.

“Reasonably practicable” is, in any event, a higher standard than simply what is reasonable. The test is whether something is practically possible, balanced against the costs, time, and resource needed to achieve it. Given the “particular importance” of freedom of speech, the balance may tip in favour of taking steps even where they are expensive, for example disciplinary action or even an injunction against those trying to stop events.

The terms on which facilities are made available to speakers must not to any extent be based on the views, ideas, beliefs or objectives of the speaker or organisation in question. What does this mean in terms of specific measures that may be necessary to ensure that particularly controversial events can be held safely?

It might be necessary for example to require advance notice of numbers of attendees, additional security, use of a particular venue or to avoid a particular date. If these are considered unlawful terms because they are (necessarily) based to some extent on the views of the speaker or body in question, how does this fit with the health and safety duties of institutions and/or their SUs?

The new duty to promote freedom of speech is broad and such duties often lead to a burgeoning bureaucracy in demonstrating how the duty is being met. The sector should be prepared to report on the measures it has taken to promote freedom of speech.

As compliance with the statutory duties to secure and promote free speech and academic freedom will form part of the mandatory initial and ongoing conditions of registration, institutions may also be required by the OfS to complete self-assessment templates or ad hoc reviews, as were required for other registration conditions and the recent consumer protection review.

Expertise and expression

Far from strengthening the academic freedom of staff, the bill appears to constrain it by restricting it to their field of expertise. As academic staff also benefit from the general freedom of speech duty this may be a distinction without a difference, but a definitional change like this could create confusion as to the nature of the protection available to a member of staff at any given point.

It is also not clear how these new rights will interact with existing employment law considerations. For example, the explanatory notes accompanying the bill suggest that one possible outcome of a complaint to OfS might be to require reinstatement of a member of staff who has been dismissed.

Freedom of speech is defined as including the freedom to express beliefs, views and ideas without adverse consequences. This is a very broad concept and could, presumably, include criticism, challenge and protest by staff, students or indeed members of the public. Potentially, if a speaker suffers “adverse consequences” at the hands of any of these groups, the institution could be considered to have breached its duty to secure their free speech. However, those objecting are also entitled to exercise their freedom of speech without adverse consequences, and so institutions may be damned if they do or damned if they don’t in terms of taking action to curtail protest.

Although the duties on students’ unions are separate, institutions will undoubtedly be affected if their students’ union faces legal or regulatory action for breach of duties, so there is a risk of collateral damage even if the institution has done all it can in respect of its own duties. Institutions will need to understand how their students’ unions are managing their duties and may need to offer support and challenge to ensure they are managed well.

The complaints scheme to the OfS raises the question of how the OfS will determine whether contested speech is or isn’t “within the law”. It is not a forum that is equipped to make legal judgments. It is notable that when the Trump administration tried to make it a ground to withhold or withdraw funding if an institution failed to uphold free speech, the proposal ultimately recognised that there needed to be a court determination that the speech in question was legally permissible before regulatory action of this nature could be taken.

Although it is to be hoped that some of these areas of concern will be ironed out as the bill works through the parliamentary process, the government’s majority and apparent ideological commitment to the belief that this legislation is needed means that there is a likelihood that this problematic bill will find its way onto the statute books largely unscathed. Institutions should be proactive in considering how best to implement its requirements.

One response to “Some big legal questions hang over the new free speech bill

  1. A good analysis by Smita as usual.

    A few comments, We were all doing our best before 1986 to try to protect controversial speakers, and sometimes, chums, it was not at all fun. I recall in particular a visit by one well-known individual to Hull in 1983 which resulted in a photo of me in the local paper with my arm round him and being thumped for my efforts. I am sure other administrators of the time will have similar memories. A late addition to the Education (No 2) Bill which became section 43 was a ‘knee-jerk’ reaction to such disrupted events on campus featuring right wing speakers. It generated a flurry of activity in universities to create policies and procedures, but otherwise was basically ignored, only one case being brought, and rejected. Despite all the University’s efforts, the same individual appeared again in 1987 after I had left Hull and that time the police were present.. When preparing the first CUA (now AUA) and CRS (now AHUA) textbook on higher education law, in 1987 I corresponded with the government about the fact that the application of s 43 to student unions was unclear. For details see para 9.24 of the third (2021) edition of The Law of Higher Education (OUP). Why it has taken the state 34 years to deal with this issue is, as they say, beyond this mere mortal! As for the proposed statutory tort, this seems to me to be unworkable, but comment is best left to a professor of private law to give an authoritative view?

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