Amid great controversy, this week the Government published its long-awaited Higher Education (Freedom of Speech) Bill.
The purpose of the Bill is to force universities and students unions to comply with enhanced free speech duties or face sanctions from the Office for Students and/or legal claims from individuals.
Opposition to, and support for, the Bill have broken along predictable political lines. In this blog, I want to focus on the practicalities of what the Bill would require universities to do and what action they need to take in order to be compliant with the new law. Love the new Bill or loathe it, the law is going to change and universities need to act.
I’ve highlighted in bold below the action steps universities must take and the most key changes of which they need to be aware.
Core duties for universities
These are set out in sections A1 to A3 and are the most important parts of the Bill. The OfS and the new Director of Free Speech and Academic Freedom will be empowered to ensure compliance with these duties, and individuals will be able to bring civil claims in relation to breaches of the A1 duty (though, note not A2 or A3).
1) The A1 duty is very similar to the existing s43 duty (see here – this will stay on the statute books, but won’t apply to English higher education providers). It requires the institution’s governing body to take steps that are “reasonably practicable” to ensure freedom of speech within the law for its staff, members, students and visiting speakers. This includes ensuring that the use of premises isn’t denied to anyone because of their ideas, beliefs or view. So far, so s43.
What’s new is the additional requirement to have “particular regard to the importance of freedom of speech” when taking the “reasonably practicable” steps. It’s not really clear what either of those things mean in practice or whether the additional wording actually adds or modifies the duty in any meaningful way. The main case on the s43 duty involved a cancelled event where the security costs became too high – perhaps the new emphasis will mean that costs have to take more of a back seat to free speech when considering what step are appropriate? We’ll need case law to flesh that out.
Also new is the addition of a specific objective to secure academic freedom for academic staff alongside their general right to free speech. That includes ensuring that they are not put at risk of losing their jobs, privileges or promotion prospects.
Combined with the new right to claim for losses in court arising from breaches of this duty, universities will need to be much more careful when dismissing or disciplining academics. They will also need to be careful when recruiting for academic posts, as there will be an addition new duty on universities to ensure that their application was not adversely affected by any exercise of their academic freedom.
Interestingly, the Government has chosen a rather narrow definition of academic freedom. It only covers question and testing received wisdom, and putting forward new ideas and controversial or unpopular opinions which are: (1) within the law; and (2) within the academic’s field of expertise. It does not include other traditional aspects of academic freedom, such as discussing how the institution is governed or how it affiliates itself (e.g. affiliation with Stonewall is controversial among some academics). Limb (2) is also new and seems to derive (imprecisely) from international case law. This seems to be the most controversial aspect of the definition and may be refined or removed during the legislative process.
2) The A2 duty concerns the code of practice which a university must publish with a view to facilitating the A1 duty. This will be familiar to universities as they are already required to produce such a code as part of the s43 duty. However, there have been additions so universities will need to review and update their policies immediately upon the new law coming into effect. In particular, the policies must now also set out the institution’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech.
Further, the university must also at least once a year, bring the A1 duty and its code of practice to the attention of all students.
3) The A3 duty is entirely new. It is an active duty to promote the importance of freedom of speech and academic freedom. At present, there are no further details as to what is required here, but the Government have previously mentioned a statutory code of conduct which may set out details. This may come later and/or be left to the OfS and the new Director to consulate upon and draft.
Unfortunately, a lack of guidance here will leave universities in some doubt as to what they must do, particularly if a controversy arises. For example, if one of their academics faces protests or an open letter, will they face censure or sanctions from the OfS if they do not release a statement in support of academic freedom? If they don’t, it seems likely they will be facing a complaint under the new scheme (more on that below) and it will be up to the OfS and Director to scrutinise their conduct or inaction.
The first two of the above duties also apply to student unions in a similar form. Both may now be facing legal action for breach of the A1 (or equivalent) duty. This is new. Under the old regime, the only real remedy was a judicial review against a university’s decision in a s43 context. This is a complex and expensive process for individuals who ultimately would have very little prospect of achieving any compensation whatsoever. That has now changed. Not only will universities be facing the prospect of paying out compensation, they will potentially also be under threat of significant costs risks if they lose.
Important regulatory changes
There are going to be some important and significant changes to the underlying regulatory framework which govern universities. Here is a breakdown of the three most important changes:
- A new registration condition. Alongside the need to ensure the university has adequate protections in its governing documents and management arrangements to ensure compliance with its free speech duties, the OfS will be empowered specifically to ensure that universities act in a way which is compatible with their duties under A1 to A3 on an ongoing basis, as a condition of registration.
- A new Director for Freedom of Speech and Academic Freedom will be introduced. This position will sit on the board of the OfS and will essentially ensure that the universities are complying with duties under A1 to A3 on an active and ongoing basis. This will mean close scrutiny from the top, and represents a significant shift in the regulatory and compliance environment for universities.
- A new free speech complaints scheme enforced by the OfS. This is going to be significant for universities, primarily because individuals won’t have to pay a fee to lodge a complaint. The scope of potential complainant is wide and covers anyone who: is or was a student or member of the university; any applicant for an academic role; or, any invited visiting speaker. They can then submit a complaint that they have suffered “adverse consequences” (not defined) as a result of action or inaction by the university (or student union) which breached the A1 duty (or equivalent).Many of the precise details of the scheme are left for the OfS to determine, but (if upheld) the OfS has the power to make recommendation (including a requirement to pay a prescribed sum) to the university. There is then a duty on the university to comply with the recommendation and, if it does not, the OfS has the power to enforce compliance with an injunction.
All sanctions generally available to the OfS, including fines, will also apply here. The OfS can impose fines of up to £500,000 or two per cent of ‘qualifying income’, whichever is higher.
As is clear from even that brief summary, the Bill will add further complexity to university governance and will introduce significant new compliance requirements.
In particular, when disciplining and dismissing academics, universities will need to take much greater care and balance the new legal protections alongside, and perhaps against, existing law such as the Equality Act 2010. The interaction of these new rules with the specific situation of some academics (appointed under University statutes and not always employees) will need particularly careful consideration.
It also seems likely that organisations such as the Free Speech Union will use the new law to increase pressure on universities by supporting their student and academic members in threatening and pursuing claims where academic freedom and free speech issues are concerned.
Universities will need to consider carefully what the new law requires of them, and how best to mitigate the new regulatory and litigation risks to which they will likely be exposed.
Find out more about the team: Advising the innovation economy on research ethics, integrity and commercial exploitation.
James Murray is an Senior Associate in Taylor Vinters’ multi-disciplinary higher education team. The team advises a range of higher education providers, research institutes and learned societies on issues including: academic staff engagement and intellectual property; governance and regulation; and research ethics and integrity.
All views expressed in this piece are my own, and should not be taken as legal advice.