UK eyeing measures to strengthen freedom of speech in universities

The UK government’s briefing (30 page / 1MB PDF) ahead of the Queen’s Speech on 11 May 2021 confirmed that it is considering bringing forward a statute to strengthen the freedom of speech in universities.

The proposals were first mentioned in a February 2021 policy paper (42 page / 1.85MB PDF) by the Department of Education. Higher education expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said it was clear that one of the key drivers for the further legislation was a belief that free speech is being stifled by those who place ‘emotional safety’ over a willingness to be challenged by opposing viewpoints.

“The intention is to give greater protection to staff, students and external speakers at universities who wish to exercise their rights of free speech within the law,” Sladdin said.

In addition to creating the role of a champion, the proposed legislation would require the Office for Students (OfS) to introduce a registration condition on free speech, with the power to impose sanctions for breaches; and widen and enhance academic freedom protections; and set minimum standards for free speech codes of practice.

The legislation would also strengthen section 43 of the Education (No. 2) Act 1986 to include a duty on higher education providers to “actively promote” freedom of speech; extend the section 43 duty to apply directly to student unions; and introduce a statutory tort for breach of the duty, enabling individuals to seek legal redress.

Section 43 of the Education Act places a duty on all those involved in the governance of higher education providers registered with the OfS to take reasonably practicable steps to ensure that freedom of speech within the law is secured for their members, students and employees, and for visiting speakers. This covers academic freedom as well as freedom of speech more broadly.

Those steps include issuing a code of practice relating to procedures to be followed by students and staff when organising meetings and activities, and ensuring, so far as is reasonably practicable, that the use of the provider’s premises is not denied to any individual or organisation on any ground connected with their beliefs, views, policy or objectives.

Sladdin said the existing legislation meant providers already had legal duties they had to comply with, and levers to secure compliance by student and staff. However, the fact that the law had not been updated following the right of student unions to become separate legal entities has meant that the requirements of Section 43 can no longer be directly enforced against student unions.

Currently, the OfS can use its powers under the Higher Education and Research Act 2017 to take action where a provider has breached one of the registration conditions related to free speech. Sanctions can include monetary penalties or even de-registration.

However, Sladdin said there had been little regulatory action taken by the OfS in relation to potential breaches of the conditions concerning freedom of speech or academic freedom, despite the suggestion in the media and the UK government briefing that there have been a significant number of concerning incidents being reported since its full suite of powers came into force in August 2019.

“The present proposals appear to follow a number of years of suggestions by successive ministers that they intended to overhaul the present statutory protections relating to academic freedoms and freedom of speech in the higher education sector," he said. "While various reviews including the Joint House of Commons and House of Lords Committee on Human Rights in 2018, have questioned the strength of government’s narrative that higher education providers are not actively taking steps to promote free speech and academic freedoms, it has become clear that the legal framework within which providers have to operate is overly complex and can often hinder rather than promote free speech."

"In particular, the legislation needs to be updated to reflect the fact that since 2006 student unions have been able to acquire separate legal status from their institutions,” Sladdin said.

“What is less clear, however, is the government’s view that the present regime is not being complied with or is toothless. While the proposals put forward include regulatory powers in the form of OfS conditions of registration and a statutory tort for breach of duty may clarify the extent of the duty and the likely sanctions for non compliance, they seem to add little in practical terms. The reference to a tort for breach of statutory merely re-states a safeguard already in place rather than adding any new powers or remedies,” Sladdin said.