Of particular note are proposed changes that will provide the Office for Students (OfS) with additional monitoring and enforcement powers, lead to the creation of a Director for Freedom of Speech and Academic Freedom and extend the application of duties to Students' Unions.
Freedom of speech can be defined as the right to express views, beliefs and ideas without adverse consequences and applies to all. Currently, Higher Education Institutions (HEIs) registered with the OfS have a legal duty to ensure that freedom of speech is upheld by taking reasonably practicable steps to secure the lawful use of it for their members, students, staff and visiting speakers. This is underpinned by legislation (s43 Education (No.2) Act 1986) which includes a requirement to keep an up-to-date code of practice.
Academic freedom, by contrast, is based primarily on the intellectual independence of academics, including the freedom to express their views, question and test received wisdom and put forward new ideas and controversial or unpopular opinions without being placed in jeopardy of losing their jobs and privileges (s202 of the Education Reform Act 1988).
Both freedom of speech and academic freedom are recognised as public interest governance principles by the OfS and apply to all registered providers via conditions E1 and E2. The OfS is itself required to protect academic freedom when performing its access and participation function and has made it clear in recent guidance that it stands for the 'widest possible definition of free speech: anything within the law'.
The expression of views, beliefs and ideas that are unlawful include speech that causes fear and provocation of violence (s4 Public Order Act 1986), acts which are intended to stir up hate on grounds of race, religion or sexual orientation (s18 and 29B Public Order Act 1986), or which cause a person harassment, alarm or distress (s4A and s5 Public Order Act 1986).
Further, HEIs that are public authorities must comply with the Public Sector Equality Duty set out in s149 Equality Act 2010. This creates a legal obligation to have due regard to eliminate harassment, discrimination, victimisation or any other behaviour that is prohibited under the Equality Act 2010 and to foster good relations between persons who share a relevant characteristic (eg race, religion or belief) and persons that do not share it. This consideration becomes important in decisions relating to the viability of discussions about controversial or sensitive topics on campus.
Given the political arguments for further legislation in this area (notably a perceived need to prevent 'a chilling effect' where individuals feel unable to express views without repercussions) it is unsurprising that the Bill requires HEIs not only to uphold freedom of speech and academic freedom but to also actively promote them. The practicalities of how this should be done are unclear, but the Bill does state that the OfS will be required to identify good practice and provide HEIs with advice on what is expected.
It is known that HEIs will need to take 'reasonably practicable' steps towards securing this outcome whilst paying 'particular regard to the importance' of freedom of speech. The emphasis on prioritising this duty suggests that the balance will be tipped in favour of proactivity even when significant time and resources are necessary. We anticipate that this will create an additional administrative burden on HEIs, for example in the form of detailed audit trails designed to mitigate the risk of claims.
The Bill also seeks to widen the scope of academic freedom, by ensuring that protection for academics extends beyond retaining jobs and privileges to recruitment and promotion prospects. HEIs will therefore need to act with care not only when sanctioning or dismissing staff but also when hiring and recognising them, to ensure the new right to claim losses for breaches of this duty do not apply. It should be noted, however, that academic freedom is defined narrowly in the Bill, being limited to the field of expertise of the academic in question, which does potentially make the nature of protection available against a claim for breach of this right puzzling.
Another important proposal is the creation of a Director for Freedom of Speech and Academic Freedom at the OfS to oversee the performance of OfS's own free speech functions and the new Free Speech Complaints Scheme. This will be accessible to current or former students and staff, applicants for academic posts and invited visiting speakers. Among the Director's powers will be the ability to make recommendations and sanction institutions (including fines) if it is considered that the duties have not been upheld and, if necessary, to enforce compliance with an injunction.
It is important to note, however, that an injunction application will not be possible unless the HEI's internal complaints procedure has been exhausted. Determining whether an institution has upheld its freedom of speech and academic freedom duty will, of course, require a decision on whether particular speech/actions are lawful or not, which creates uncertainty given that it is not known how the OfS will make such a legal judgment.
The new freedom of speech duty and code of practice requirements will apply directly to Students' Unions for the first time. Generally, Students' Unions and HEIs are distinct legal entities but the new regime could impact HEIs if the associated Students' Union faces legal or regulatory action. On a positive note, this may encourage better communication and collaboration between HEIs and Students' Unions.
Finally under the Bill, individuals will be able to bring civil claims against OfS registered institutions or Students' Unions for breaches of freedom of speech and/or academic freedom. This change is intended to give individuals whose rights are unlawfully infringed a more direct right of redress, the only current option being an application for judicial review. Non-compliance with the new duties may lead to HEIs paying compensation to individuals affected, as well as contributing to the other party's costs if they lose.
In conclusion, it is important for HEIs to keep a close eye on the progression of the Bill through Parliament, with the second reading in the House of Commons having taken place on 12 July. If the Bill is passed with no or minor amendments, the avenues of redress for current or former HEI students and staff, applicants for academic posts and invited visiting speakers will widen significantly.
In addition, the new monitoring and enforcement powers allocated to the OfS will, if nothing else, justify HEIs reviewing their code of practice and associated policies and ensuring audit trails of decision making are clear whenever freedom of speech or academic freedom considerations arise.