The free speech emperor has a smattering of new clothing

Geraldine Swanton has a legal analysis of Gavin Williamson's free speech proposals - and wonders what they really add other than complexity.

Geraldine Swanton is Legal Director at Shakespeare Martineau.

Not all problems can be resolved by legislation. That is particularly true of problems which it is accepted are not widespread and for which there is already comprehensive provision under existing legislation.

The publication of Gavin Williamson’s proposals for changes to freedom-of-speech legislation therefore induced a visceral sigh and cry of “why?”.

It is not the role of a lawyer to speculate on any political motive, but to understand how even more legislation will address the perceived “chilling effect” of the “small number of high profile incidents” to which Gavin Williamson refers. Extreme cases make bad law.

He has a promotion

One of the proposals is to include a duty on higher education providers (HEPs) to “actively promote’ freedom of speech. The existing duty is set out in s43 of the Education (No. 2) Act 1986 and requires HEPs to take reasonably practicable steps to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers.

The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) in domestic legislation and includes the right to freedom of expression, which subsumes freedom of speech. It is a long-established principle of ECHR jurisprudence that it is not sufficient for those bound by the ECHR simply to refrain from breaching the rights guaranteed to individuals.

Instead, they are under a duty to take positive steps to secure those rights, which otherwise would be merely theoretical and illusory. Gavin Williamson’s proposal therefore adds nothing of substance to current law.

Conditional logic

To reinforce the ostensible new positive duty to promote freedom of speech, a new condition of registration is envisaged to ensure that the obligation is “clearer and more upfront”.

As Gavin Williamson points out, the OfS already regulates free speech and academic freedom by means of Conditions E1 (public-interest governance) and E2 (management and governance). Both freedom of speech and academic freedom are expressly referred to by the OfS as public-interest principles.

The Government’s own first principle of good regulation provides that regulators should avoid imposing unnecessary regulatory burdens through their regulatory activities (Regulators’ Code 2014 par 1.1).

Increasing the number of registration conditions in response to isolated problems appears to be case in point ­ – a government sledgehammer to crack a nut when there is already in existence a workable nutcracker. It also raises the spectre of regulatory conditions being used for wider ideological purposes, posing a risk to institutional autonomy.

The new condition is accompanied by a proposed appointment of a free-speech / academic-freedom champion to the OfS Board. The concept of a “champion” in the context of governance is an interesting one. Does it create a hierarchy of conditions with those not championed being less important?

What are the implications for collective responsibility if individual board members are tasked with responsibility for specific aspects of the regulatory framework?

Tort me a lesson

Gavin Williamson is also concerned that those whose rights are breached are not, under current law, entitled to compensation for losses caused as a result. In response, he proposes a new statutory tort (i.e. a civil wrong) which would provide for payment of compensation if claims were successful.

He includes in the list of those who would benefit academic staff and students who were disciplined for their views. Academic freedom within the law is enshrined in HEPs’ constitutions and staff exercising that freedom who are dismissed will have a strong case for claiming unfair dismissal, entitling them to compensation, subject to the two-year qualifying service rule.

The latter rule is a clear barrier to a sub-set of academic staff bringing claims and an obvious, but apparently unexplored, solution would be to remove it for the purposes of academic freedom/freedom of speech. It is already removed in other contexts e.g. where a detriment is suffered as a result of a whistleblowing complaint.

Students who are excluded for expressing their views will have available to them a number of remedies that offer compensation. The most obvious is a right to make a complaint to the Office of the Independent Adjudicator for Higher Education, which can recommend payment of compensation for loss, as well as for inconvenience and distress.

Students also have the benefit of the protection of consumer law. Any code of conduct that sought to constrain the lawful exercise of freedom of speech could amount to an unfair contract term and would not be binding on the student. Exclusions in reliance on an unfair term could therefore amount to a breach of contract with an award of compensation for any resulting financial loss.

In addition, a student wrongfully expelled for exercising freedom of speech or expression could bring an action for judicial review in which damages can be awarded if there is a concurrent right to damages, because, for example, the expulsion also amounts to a breach of contract. Most students will want a wrongful decision to expel quashed and to be reinstated on their programme of study, and judicial review is a very important mechanism for effecting such an outcome.

Adding further rights of redress makes the law unnecessarily complex and is disproportionate. If there is a serious desire to allow individuals remedies in this area, it may be more effective to ensure that they have meaningful access to the courts and legal aid.

The remaining listed potential beneficiaries of the new tort are organisers of cancelled events who have incurred costs (e.g. for hiring premises) and visiting speakers who are “disinvited or no platformed”.

Extending rights of redress to an open class of third parties risks creating a compensation culture and a diversion of resources to servicing an increased volume of claims. However, given that the available data suggests that there is not a widespread problem with cancellation or no platforming, this may end up being a relatively small risk.

Academic freedom

Many HEPs already incorporate the constitutional right to academic freedom in contracts of employment. Gavin Williamson points out, however, that there is no consistency and there is usually no comparable provision in non-employment academic contracts, such as those for visiting lecturers. There is a case therefore to be made for a consistent and more comprehensive approach.

Students’ unions

Where no-platforming incidents have occurred, it appears that the majority have related to SU activities. That SUs are not bound by the statutory free-speech duty represents an unfortunate gap in the law. Closing that gap is a welcome legislative development.

In addition, there is a proposal to bring SUs into the ambit of the OfS’s regulatory powers in respect of freedom of speech and academic freedom only and the Charity Commission would remain the principal regulator for all other purposes. While that may ultimately be an appropriate step, there is insufficient detail to assess at this stage whether it is a workable, coherent proposition.

Practice makes perfect

All HEPs are required to keep up to date a code of practice setting out the procedures to be followed by students and staff when organising meetings and activities that take place on HEPs’ premises (including SU premises). They inevitably vary from institution to institution.

There is merit in introducing minimum standards for the sector to ensure consistency and reduce bureaucracy. However, the devil will as always be in the detail, and the minimum standards will need to be sufficiently flexible to reflect the different contexts and resources of a diverse sector.

Final thoughts

Freedom of speech and expression are the pre-requisites of active participation in a democracy. Those rights extend not only ideas that are well received, but also those that shock and disturb.

As we observed when we wrote on the subject two years ago, what appears to be lost in the urge to legislate are the positive benefits to society of all those on campus, including students, engaging in discussion, even confrontation, on difficult and divisive subjects in a way that reflects the august academic context in which those debates are being conducted.

Many of the controversies associated with the free speech and expression may have been avoided if all participants were ready to conduct them in accordance with the values and skills of proper, intellectually well-managed academic enquiry, with the opportunity for rigorous challenge.

It is hugely helpful in an increasingly polarised and divided society for institutions, rather than government, to take a leading role in facilitating engagement with these conflicts – and through discussion, challenge and debate, helping to find reasoned and evidence-based common ground.

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