The Higher Education (Freedom of Speech) Bill continues its progression in Parliament, having initially been introduced in the House of Commons by the then-Education Secretary Gavin Williamson in May 2021, and recently “carried over” into the new (2022-23) parliamentary session; the Bill was debated at (and subsequently passed) Report stage and Third Reading in the House of Commons on Monday 13th June, and is due to be read a second time in the House of Lords today. (A useful summary of the Bill’s progress up to April 2022 can be found here.)
In this post, I argue, firstly, that the Bill appears to be addressing a “problem” that, in reality, is far smaller than the Government perceives it to be; and, secondly, it does so in a manner that fails to tackle the deeper issues that, if anything, may be harming free speech in practice. That is, the Bill, in its current form, lacks clarity in key areas, including – the focus of this post – that it does not address real issues concerning the appropriate balance of legal duties to protect (lawful) free speech and to prevent people from being drawn into terrorism (the so-called ‘Prevent duty’ under s. 26 of the Counter-Terrorism and Security Act 2015). At best, the Bill does little to improve upon the current legal framework in this respect; at worst, it risks creating more problems than it solves.
The Bill’s Provisions
The current version of the Bill (available here) proposes several new ‘duties of registered higher education providers’ (Clause 1). This includes a duty owed by ‘the governing body of a registered higher education provider … [to] take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (2)’ (emphasis added) – that being the objective of ‘securing freedom of speech within the law’ for staff of the provider, its members and students, and visiting speakers. Such steps would include ensuring that ‘the use of any premises of the provider is not denied to any individual or body’ on the grounds of the individual’s ‘ideas, beliefs or views’, or, in relation to a body, its ‘policy or objectives or the ideas, beliefs or views of any of its members’.
Of particular note (for reasons considered below) is the addition of the requirement that ‘the terms on which such premises are provided are not to any extent based on such grounds’ (emphasis added). Moreover, where matters of securing freedom of speech specifically concern academic staff, the Bill provides that this shall entail ‘securing their academic freedom’, which it defines – indeed, in terms largely similar to those found in its current definition under s. 202 of the Education Reform Act 1988 – thus: ‘their freedom within the law (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected [in ways which include] loss of their jobs or privileges at the provider [and] the likelihood of their securing promotion or different jobs at the provider being reduced’. However, the Bill proposes that this duty be extended to external, in addition to internal, applicants for academic positions.
The Bill would also require the governing body of a registered higher education provider, ‘with a view to facilitating the discharge of the [above] duties’ to ‘maintain a code of practice’, it being incumbent on the relevant provider to secure compliance with that code. It is expected that this shall set out, among other things: ‘the provider’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech’; relevant procedures to be followed by staff, students and students’ unions at the provider, concerning the organisation of meetings or other activities on its premises, the conduct of participants, and criteria to be used by the provider ‘in making decisions about whether to allow the use of premises and on what terms’; and ‘such other matters as the governing body considers appropriate’.
These duties are, in turn, largely extended to universities’ ‘constituent institutions’ (meaning ‘any constituent college, school, hall or other institution of the [registered higher education] provider’) and students’ unions, under Clauses 2 and 3, respectively. (Students’ unions are, however, exempted from the relevant duties connected with ‘securing academic freedom’.) Clause 4 establishes a statutory basis upon which civil proceedings may be brought in respect of a breach of duty (relating to the protection of freedom of speech) on behalf of either the governing body or a constituent institution of a registered higher education provider, or a students’ union.
Clauses 5 to 9 propose a range of reforms in relation to the functions of the Office for Students (OfS) – the sector’s regulatory body, established under the Higher Education and Research Act 2017 – including new legal duties: to ‘promote the importance of (a) freedom of speech within the law, and (b) academic freedom for academic staff of registered higher education providers and their constituent institutions’; to enforce compliance across the sector, including, for example, as a condition to registration status of higher education providers, and via monetary penalties in respect of students’ unions; and to ‘provide a scheme under which [it] is to review and determine free speech complaints’. Finally, Clause 10 provides for the establishment of a new regulatory body, the so-called ‘Director for Freedom of Speech and Academic Freedom’, responsible for ‘(a) overseeing the performance of the OfS’s free speech functions, (b) performing … any of those functions, or other functions, of the OfS which are delegated to [it], and (c) reporting to the other members of the OfS on the performance of the OfS’s free speech functions’.
Chasing a Chimera?
Much controversy surrounds the key aims and objectives of the Bill, which, above all, is intended to fulfil the Conservative Government’s 2019 manifesto commitment (at p.37), to ‘strengthen academic freedom and free speech in universities’, and in so doing address ostensible ‘growing evidence of a tangible threat to the fundamental values of both freedom of speech and academic freedom in universities’. Following several recent high-profile instances of “no-platforming” reported in the media – including, for example, that of former Home Secretary Amber Rudd – supporters of the Bill have at various points throughout its unusually long passage emphasised, among other things: ‘the growing chilling effect on campuses which is silencing and censoring students, academics and visiting speakers’; ‘too many reported instances where students or staff have been silenced or threatened with a loss of privileges or even dismissal for airing views or opinions that others disagree with’; and ‘a terrible outbreak of intolerance in modern society: the so-called culture wars’.
In a European Convention on Human Rights (ECHR) memorandum for the Bill, the Government indicates (at para 5) that duties arising under the existing legal framework (such as s. 43 of the Education (No. 2) Act 1986) ‘may not be being fully complied with’, with ‘limited options for enforcement’. While (in a section entitled ‘The Case for Change’) the Explanatory Notes to the Bill cite a 2019 Policy Exchange report which, it is suggested, ‘showed evidence of some students favouring emotional safety over freedom of speech’; also noted are those concerns raised in a 2018 Joint Committee on Human Rights (JCHR) report on freedom of speech in universities, particularly as to the level of ‘regulatory complexity’ in this area. In the House of Commons debate, earlier this month, the Minister for Higher and Further Education, Michelle Donelan, remarked that the Bill is thus about ‘changing the wider culture on university campuses so that everyone has an equal right to be heard and peacefully challenged … with tolerance of different opinions and in a constructive way’.
Yet, this premise has been widely and severely criticised. Notably, the same JCHR report – whilst recognising (at para 36) that ‘[a]ny inhibition on lawful free speech is serious’, and that ‘there have been such incursions’ – ultimately found no evidence of ‘the wholesale censorship of debate in universities which media coverage has suggested’. Statistics recently published by the OfS also appear to reveal the relatively diminutive scale of the “problem” of no-platforming and academic censorship per se:
Overall, the number of events or speaker requests rejected in 2019-20 was 94, with 43,337 events approved. In 2018-19, 141 events were rejected with 59,782 requests approved.
And it is a great irony, especially given that resolving ‘regulatory complexity’ is apparently one of the main aims of the Bill, that there is to be significant overlap between the functions of the OfS – including its new functions in overseeing a complaints scheme – and those of the Office of the Independent Adjudicator for Higher Education (OIA).
Among the key issues raised by critics of the Bill is that of its failure to address – much less resolve – ongoing tensions within the sector, specifically concerning the role of universities vis-à-vis the controversial ‘Prevent’ strand of the Government’s broader counter-terrorism strategy, ‘CONTEST’ – described by one Labour MP as ‘the real block on freedom of speech on campuses’. That is, s. 26 of the Counter-Terrorism and Security Act 2015 imposes upon ‘specified authorities’ – which, under Schedule 6, includes universities – a ‘general duty’ to ‘have due regard [in the exercise of their functions] to the need to prevent people from being drawn into terrorism’. Indeed, the so-called ‘Prevent duty’ has long been criticised for what many perceive are its divisive and stigmatising consequences, not least for Muslim staff and students. The Universities and Colleges Union (UCU), which represents academics and support staff, has argued that the current Bill thus constitutes an attempt by the Government to ‘us[e] freedom of speech as a Trojan horse for increasing its power and control over staff and students’; rather, ‘government interference in the form of the Prevent duty’, it is suggested, is one among several factors by which free speech and academic freedom are ‘threatened more widely on campus’.
It is intriguing, to say the least, that while the ‘growing chilling effect on campuses’ is so frequently highlighted as the rationale for the reforms contained in the Bill, the Government’s White Paper notes (at para 35) the JCHR’s comments as to the particular impact of the Prevent duty in this regard:
In their 2018 report, the JCHR found that the fear of being reported for organising or attending an event, combined with increased levels of bureaucracy following the introduction of the Prevent Duty, was reported to be having a chilling effect on freedom of speech.
And yet, none of the reforms contained in the Bill tackle the issues surrounding the Prevent duty head-on. This is a major deficiency of the current Bill, and this fundamental tension has the potential to create major uncertainty for universities and students’ unions operating subject to these reforms.
(Re)balancing Competing Legal Duties
Despite ample evidence which appears to undermine the Government’s case for introducing these reforms, the Government has claimed (at para 9), nonetheless, that the reforms – especially those under Clause 1 – ‘will strengthen and replace the existing duties on higher education providers currently set out in section 43 of the Education (No. 2) Act 1986’. Yet, for the most part the Bill merely reiterates those existing duties, the key difference being the provision included under Clause 1 (replicated under Clauses 2 and 3), that higher education providers need have ‘particular regard for the importance of freedom of speech’. (The relevant section of the 1986 Act mentions only the ‘tak[ing of] such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers’.) Although, quite what impact these changes might have in practice is unclear. The consequential amendments addressed in Part 2 of the Schedule to the Bill do nothing to provide clarity. It begs a number of questions: how might the duty to have ‘particular regard for the importance of freedom of speech’ – whether in securing (lawful) free speech or academic freedom – realistically be carried out any more thoroughly than existing obligations under the 1986 Act? And how, exactly, is this to be reconciled with the Prevent duty per se, which already – and equally – requires higher education providers to ‘have particular regard to the duty to ensure freedom of speech’ in preventing people from being drawn into terrorism (CTSA 2015, s. 31)?
Indeed, ambiguity surrounds the extent to which certain of the Bill’s provisions would allow – or, as appears more likely to be the case, would not allow – for the sort of careful balancing of competing considerations and legal duties which attend any (lawful) restriction of freedom of expression. As noted in a Russell Group briefing published in November 2021, ‘in a number of areas there are practical and legal concerns over the impact the reforms could have on universities and students’ unions’, among them, crucially, ‘[t]he implications of the proposed changes to the law on the ability of universities to balance competing legal requirements including their capacity to defend free speech while complying fully with equality law, including its protections against harassment, and counterterrorism legislation’.
Take, for instance, the National Union of Students’ long-standing No Platform Policy, which seeks, among other things, to ‘prevent individuals or groups known to hold racist, fascist views from speaking at union events’. (The relevant NUS guidance notes: ‘The British National Party, racist and fascist in both policy statement and practice, is the organisation which is most commonly prevented from expressing its views by a ‘no platform policy’’.) This, it seems, is at odds with the demands of the Bill, specifically the combination of new legal obligations to which it would give effect: that of ‘having particular regard to the need to secure freedom of speech’ for the relevant parties, as well as ensuring that the terms on which university (or students’ union) premises are provided are not ‘to any extent’ based on the relevant individual’s ‘ideas, beliefs or views’, or those of any of the relevant body’s members, or its ‘policy or objectives’. Whereas, in other words, the NUS’s policy appears to comply with the existing legal framework (which, as noted above, requires only the ‘tak[ing of] such steps as are reasonably practicable to ensure that freedom of speech is secured for [the relevant parties]’), it is reasonable to assume that a policy of this nature would fall foul of the above obligations. (And, indeed, under the Bill this would give rise to a (civil) cause of action for the aggrieved individual(s).) Such is the trenchant manner in which those obligations – particularly when read together – are expressed.
This provides a stark illustration of broader issues concerning, and potential impact of, the (re)balancing of competing legal obligations under the Bill, in which freedom of speech – though a ‘qualified’ right as part of the ECHR, to which certain restrictions are in fact permitted in law – is to be protected in increasingly absolutist terms. It highlights, moreover, the significant ambiguity which arises in respect of universities’ and students’ unions legal obligations under the Prevent duty. For the current guidance issued in relation to that duty states (at para 11)
… when deciding whether or not to host a particular speaker, [relevant higher education bodies] should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event.
In seeking to mitigate these risks, it has been noted that, ‘absent detailed further guidance, there is a possibility of unintended consequences including a “chilling effect” where legal complexity disincentivises individuals within universities and students’ unions from seeking to arrange events’. Perhaps, alternatively, there are circumstances in which higher education providers and students’ unions, loath to risk incurring financial penalties or civil suits for cancelling events or “no-platforming” certain individuals or bodies, might simply allow events to go ahead. And what might be the consequences of this? Such is the weight that the Bill attaches to the importance of freedom of speech, now backed up by the threat of these enforcement procedures, that it risks creating the conditions on campuses which, in effect, bring us closer to giving licence to those with extreme views than is currently the case – albeit at the risk of universities’ falling foul of their duties to prevent people from being drawn into terrorism.
In a House of Commons debate last year, in response to questions as to how higher education providers will be expected to balance such competing legal duties under the Bill, the Minister for Higher and Further Education commented:
It is important to remind the House that [higher education providers] already have to do that. However, the Bill places a duty on providers to take reasonably practicable steps to secure lawful free speech. It does not supersede the Prevent duty or the Equality Act. The requirement to take reasonably practicable steps is right. It cannot be sensible to require providers to act unreasonably or to ignore their other legal duties. The Bill will give providers further clarity, because the new director will give advice and issue comprehensive guidance.
Reiterating that ‘[t]he Bill only protects lawful free speech’, the Minister added:
Harassment, racism, discrimination, hate crimes, and incitement of violence or terrorism will have no place on our campuses or in our society. In fact, I vehemently believe that we should defend and safeguard freedoms on all fronts, from freedom of speech to freedom from persecution.
It is, of course, correct to say that higher education providers are currently obliged to balance competing legal duties under the existing legal framework – including those arising under the Prevent duty. And, in fact, in so doing under the 1986 Act, these providers must take ‘reasonably practicable’ steps to ensure that freedom of speech within the law is secured for the relevant parties – the same legal standard as that proposed under the Bill is still to be applied. Again, the Prevent duty per se already requires higher education providers to ‘have particular regard to the duty to ensure freedom of speech’ (CTSA 2015, s. 31).
There are legitimate questions to be asked, therefore, as to what, exactly, will (or ought to) be done differently under the Bill. It is not clear that the Bill in any meaningful way clarifies the deficiencies, if any, of the existing legal framework. Nor is it clear, in the absence of guidance at this stage (or any indication as to what ‘advice’ or ‘comprehensive guidance’ may be provided by the new Director for Freedom of Speech and Academic Freedom in practice, as the Minister suggests), quite how the renewed emphasis on the duty to protect freedom of speech under the Bill will interact with the legal duty to counter extremism on campuses. It is also true, as the Minister notes, that the duty to protect ‘lawful free speech’ (emphasis added) does not give licence to those whose speech would constitute a criminal offence. This includes, for instance, a terrorism-related offence, such as where a person invites support for, or expresses an opinion or belief that is supportive of, a proscribed organisation (contrary to s. 12 of the Terrorism Act 2000 (as amended)). Yet, once again it remains unclear as to how higher education providers and students’ unions ought to address individuals whose ideas, beliefs or views, or the policies and objectives of certain bodies, though extreme, may fall short of the legal threshold for terrorism-related offences. What is clear, however, is that both higher education providers and students’ unions will, under this Bill, face the threat of civil action for “no-platforming” individuals and bodies, albeit in fulfilling their duties under Prevent – a threat that is not currently present for those in breach of these duties (CTSA 2015, s. 34).
The question as to the existence (or not) of an ongoing crisis of freedom of speech in universities, or of academic freedom per se, has so far fuelled intense debates as to the necessity of the reforms proposed under the Higher Education (Freedom of Speech) Bill. Of course, these debates raise important questions, which inevitably speak to fundamental principles of any well-functioning democracy – not least that of the freedom of our academic institutions (and those employed by, or studying within, or visiting them) to engage in discussion of (albeit often confronting) ideas, beliefs or views. After all, that is the very essence of the freedom of expression to which various legal instruments – both domestic and international – give protection. However, the Government, in bringing this Bill, seeks to address a “problem” the nature and scale of which it radically overstates; and there is a danger that within these debates, equally important questions, requiring careful consideration, such as those highlighted in this post, are overlooked. In its attempt to resolve issues which it perceives are harming freedom of speech in universities, the Government itself may do more harm than good.
With many thanks to Professor Alison Young and Professor Mike Gordon for their very helpful comments on a previous version of this post. Any remaining errors or inconsistencies are my own.
Mark Bennett, Lecturer in Law, Liverpool Hope University
(Suggested citation: M. Bennett, ‘Protecting Free Speech whilst Preventing Terrorism: The Higher Education (Freedom of Speech) Bill and the ‘Prevent Duty’’, U.K. Const. L. Blog (28th June 2022) (available at https://ukconstitutionallaw.org/))