The New Campus Free Speech Bill ' What Universities Need To Know And Need To Do

• Published date: 17 May 2021
• Subject Matter: Consumer Protection, Compliance, Education
• Law Firm: Taylor Vinters
• Author: Mr James Murray

Amid great controversy, this week the Government published its long-awaited Higher Education (Freedom of Speech) Bill.

The purpose of the Bill is to force universities and students unions to comply with enhanced free speech duties or face sanctions from the Office for Students and/or legal claims from individuals.

Opposition to, and support for, the Bill have broken along predictable political lines. In this blog, I want to focus on the practicalities of what the Bill would require universities to do and what action they need to take in order to be compliant with the new law. Love the new Bill or loathe it, the law is going to change and universities need to act.

I've highlighted in bold below the action steps universities must take and the most key changes of which they need to be aware.

Core duties for universities

These are set out in sections A1 to A3 and are the most important parts of the Bill. The OfS and the new Director of Free Speech and Academic Freedom will be empowered to ensure compliance with these duties, and individuals will be able to bring civil claims in relation to breaches of the A1 duty (though, note not A2 or A3).

To summarise:

1) The A1 duty is very similar to the existing s43 duty (see here - this will stay on the statute books, but won't apply to English higher education providers). It requires the institution's governing body to take steps that are "reasonably practicable" to ensure freedom of speech within the law for its staff, members, students and visiting speakers. This includes ensuring that the use of premises isn't denied to anyone because of their ideas, beliefs or view. So far, so s43.

What's new is the additional requirement to have "particular regard to the importance of freedom of speech" when taking the "reasonably practicable" steps. It's not really clear what either of those things mean in practice or whether the additional wording actually adds or modifies the duty in any meaningful way. The main case on the s43 duty involved a cancelled event where the security costs became too high - perhaps the new emphasis will mean that costs have to take more of a back seat to free speech when considering what step are appropriate? We'll need case law to flesh that out.

Also new is the addition of a specific objective to secure academic freedom for academic staff alongside their general right to free speech. That includes ensuring that they are not put at risk of losing their jobs, privileges or promotion prospects.

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