The Freedom Of Speech Bill: What It Means For The UK Higher Education Sector

• Published date: 08 September 2021
• Subject Matter: Consumer Protection, Education
• Law Firm: Withers LLP
• Author: Ms Chloe Harris

On 12 May 2021, Higher Education (Freedom of Speech) Bill was introduced to Parliament, to tackle what the government refers to as the 'growing chilling effect on campuses' whereby it feels students and academics are being silenced and censored.

The Bill has been strongly opposed by opposition parties but will in all likelihood be passed considering the government's considerable majority. Therefore higher education providers should be using the time before the Bill becomes law to consider how they will manage its implications. Critics of the Bill have commented that providers may find they are facing more uncertainty, rather than less, about how freedom of speech should be dealt with on campus.

So what exactly is this Bill trying to address? There have certainly been high profile cases of speakers being 'no-platformed' by university students' unions, such as former Home Secretary Amber Rudd. Recent debates around 'de-colonising' curriculums have led to comparisons with censorship. However, the Office for Students has released statistics showing that in the Year 2017/18, of 59,574 events held at higher education institutions, only 53 events were rejected, indicating that 'no-platforming' is in fact a relatively minor problem.

Furthermore, there already is legislation protecting freedom of speech. The Education Act 1986 places a duty on universities, polytechnics and colleges to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. The European Convention on Human Rights also protects free speech.

This raises the question, given the incidents that the government are aiming to address seem to be relatively rare and legal protections already exist, will the additional protections to be introduced by the Bill be proportionate?

The Bill is bringing in a number of changes. The implications of some will be clear, but for others, higher education providers may be left scratching their heads about how to respond. For example, the Bill now requires higher education providers to have 'particular regard to the importance of free speech' when carrying out the duty of ensuring that freedom of speech is secured.

How a higher education provider could change what they are doing in practical terms to demonstrate this 'particular regard' is not entirely clear. Should it now take precedence over other duties? On the other hand, the Bill will now impose a duty on...