As part of the duty to protect free speech, Higher Education Providers must also secure the ‘academic freedom’ of their academic staff. This is defined as staff’s ‘freedom within the law and within their field of expertise – (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’. The definition restricts a member of staff’s freedom of speech to their field of expertise. The Education Act duty to protect free speech will still apply to an academic who is expressing a view outside their field of expertise, but the distinction drawn in the Bill may cause some confusion and seems out of place when the intention is to strengthen protection for academic staff.
Freedom of speech is defined by the Bill as including freedom to express ideas, beliefs and views without suffering adverse consequences. The extent of what constitutes an ‘adverse consequence’ is not defined. If interpreted as a low bar, this could include criticism. For example, if students choose to walk out of a lecturer’s class, would that be an adverse consequence, and if so, how would that interact with the student’s right to freedom of speech? There is uncertainty over the extent of a higher education providers duties to protect freedom of speech, which is a particular issue as the Bill also introduces the ability for a person to bring a civil claim against a higher education provider in respect of a breach of the duty.
The Bill also requires both higher education providers and students’ unions to ensure use of their premises are not denied to someone because of their ideas, beliefs or views, and that the terms on which premises are provided are not based on such ideas, beliefs or views. If a particularly controversial speaker is attending a students’ union, could the students’ union introduce terms to ensure the event is held safely? Even if sensible, would these terms be a breach as they are based on the fact that the speaker held a particular view?
A more concrete change to be introduced by the Bill is the enhanced role of the Office for Students (OfS), overseen by a new ‘Director for Freedom of Speech and Academic Freedom’. The OfS will be promoting the importance of free speech and running a scheme to determine free speech complaints in the higher education sector.
Conditions for registration with the OfS will include that a provider’s governing documents and management arrangements enable it to comply with the duties in the Bill relating to free speech. Compliance will also be an ongoing registration requirement. In addition, the OfS will be tasked with monitoring whether students’ unions are complying, and registered higher education providers are required to keep the OfS informed about its students’ unions.
The new complaints scheme will be for members of staff, students or visiting speakers who have been adversely affected by a higher education provider’s or students’ union’s breach of its duties in relation to free speech. Before a compliant can be made however, any internal procedures must first be exhausted. If the OfS considers a complaint to be justified, it may make a recommendation to the higher education provider or students’ union to take action, including paying a fine, or refrain from taking certain action. Interestingly, the question of whether a free speech complaint is justified will in many situations require an assessment of the law by the OfS to determine if the speech in question was within the law. The government has insisted that the Bill will not protect any unlawful or ‘hate’ speech, but the OfS will be able to make such legal judgments, which would usually be reserved for the courts.
As the Bill makes its way through parliament, some of the ambiguity may be ironed out, but until then, it would not be unreasonable if Higher Education Providers felt unsure of how best to prepare for the changes it will bring in.