Battle Continues Over Free Speech At Universities

• Published date: 30 March 2021
• Subject Matter: Consumer Protection, Government, Public Sector, Education, Human Rights
• Law Firm: Wrigleys Solicitors
• Author: Ms Laura Moss and Daniel Lewis

New proposed measures continue debate on free speech on university campuses .

The education secretary, Gavin Williamson, recently announced plans to introduce legislation enabling academics, students or visiting speakers who are no-platformed to sue universities for compensation, where they feel they have suffered because of infringements to their right of freedom of speech.

What new measures are proposed?

Williamson's proposals are part of a raft of new measures the government is seeking to introduce to fulfil its manifesto commitment to protect perceived threats to free speech and academic freedom in universities in England.

Further proposals include:

• appointing a 'free speech champion' to investigate potential infringements of free speech in higher education;
• making access to public funding contingent on universities adhering to a new free speech condition and giving the Office for Students, the higher education regulator in England, the power to impose fines in case of breaches;
• a new free speech duty applying directly to students' unions, requiring them to take steps to guarantee the right of free speech to their members and visiting speakers; and
• introducing a new statutory tort for breaches of the free speech duty, enabling academic staff or students who have been expelled, dismissed or demoted to seek redress through the courts.

The measures outlined above will impact all students' unions in England, if they successfully pass through parliament.

Are these measures really necessary?

Universities already have a legal obligation to take 'reasonably practicable' steps to ensure freedom of speech within the law for their members, students, employees and visiting speakers, under the Education Act 1986. As public bodies, they also have a duty to comply with Article 10 of the European Convention on Human Rights, which states that everyone has the right to freedom of expression. Useful guidance published by the Equalities and Human Rights Commission (EHRC) in February 2019 aimed to clarify the rules.

The legal framework to protect free speech on university campuses therefore already exists. Banning certain groups or individuals from campus could potentially infringe a university's duties to uphold freedom of expression on campus. If a student group blocks a particular speaker, their institution may therefore step in.

Although students' unions are not themselves subject to these duties, as independent charities, they are subject to other legal duties...