Universities and student unions in England to be required to promote free speech

The Higher Education (Freedom of Speech) Bill (21 page / 174 KB PDF) will require institutions and student unions in England to maintain a code of practice to secure freedom of speech for staff, students and visitors. The government said the legislation would help stamp out “unlawful silencing”, or “cancel culture”.

A Director for Freedom of Speech and Academic Freedom will sit on the board of the Office for Students (OfS), with responsibility for investigations of breaches of the new freedom of speech duties, including a new complaints scheme for students, staff and visiting speakers. The director may be able to recommend sanctions against institutions including fines.

The legislation will enable individuals to bring civil claims against institutions registered with the OfS, or students’ unions, for breaches of their duties under the law.

Higher education expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said the intention of the bill is to strengthen powers already in place under section 43 of the Education (No. 2) Act 1986 with particular emphasis on student unions. Section 43 of the 1986 Act already  creates a statutory duty requiring governing bodies of higher education providers to ensure freedom of speech within the law on their premises. The 1986 Act includes additional requirements including setting up codes of practice to manage this obligation. The measures in place in the 1986 act are not directly enforceable against students' unions.

“In my experience higher education providers take these duties extremely seriously and, as the Parliamentary report by the Joint Committee on Human Rights in 2018 suggested, the evidence of actual breaches by either universities or student unions is not widespread as many people believe,” Sladdin said.

Sladdin said although student unions are eligible to be established as separate legal entities, the 1986 Act had not been updated to reflect this. Despite this, student unions were still captured by other powers which enable higher education providers to manage the conduct of students and student unions.

“The complexity of the present legal framework means that decisions regarding free speech are very finely balanced. While the reforms may simplify the position around student unions it is unclear that it will address the wider complexity of the legal framework governing free speech,” Sladdin said.

The introduction of the right to bring a civil claim is intended to give individuals whose rights to free speech are unlawfully infringed by a higher education provider a more direct right of redress. Currently, individuals can only bring a judicial review claim against a decision not to hold an event or invite a speaker under the 1986 Act and the Human Rights Act 1998.

“Although a judicial review does not in itself give rise to damages in itself, an individual who has established a breach of statutory duty may seek damages in addition if there is a persuasive case that the breach gives rise to an additional rights to claim for damages,” Sladdin said.

The proposal of a new  tort of statutory duty is intended to cover some of the groups that the government suggests have no clear right of remedy under the law such as external speakers. However, Sladdin said that "any person wanting to claim would still have to show that any breach of section 43 had caused them loss, which is likely to still make it difficult to actually bring a claim in practical terms.”

It has been suggested that , the proposed changes create the possibility for more claims, but Sladdin is "not convinced that this will easily translate into successful litigation in most cases – particularly given the duties already in place under section 43 and the fact that these duties are already taken extremely seriously by institutions”.

However, Sladdin said the new bill could increase the administrative burden on institutions. They will need to prepare detailed audit trails of their risk assessment processes in order to mitigate the risk of claims. This could create practical difficulties where a decision whether or not to proceed with an event has to be taken urgently due to genuine concerns about campus safety, a factor which the courts have previously held as a valid reason for postponing speaker events.

The bill was first signalled in a February 2021 policy paper published by the Department of Education and referred to again in a briefing ahead of the Queen’s Speech.