The UK Government recently published the Higher Education (Freedom of Speech) Bill (the "Bill"). The Bill seeks to impose additional "free speech" duties on universities (and other higher education institutions) and student unions in England.
The duties
The Bill would enact three core duties for higher education institutions:
- Each higher education institution's governing body would need to take "reasonably practicable" steps towards securing lawful freedom of speech for its staff, members, students, and visiting speakers, paying particular regard to the importance of freedom of speech. This would include:
- ensuring use of the institution's premises is not denied on the basis of the ideas, beliefs or views of those wishing to use the premises, or in the case of a body, its policy, or objectives or the ideas, beliefs or views of any of its members, and,
- securing academic freedom, as defined in the Bill, for staff such as ensuring that academics are not put at risk of losing their jobs, privileges or promotion or future recruitment prospects as a result of its exercise; as well as taking reasonably practicable steps to ensure that academics are not disadvantaged when applying for jobs at the institution for having exercised that freedom.
- Each higher education institution would need to create and maintain a code of practice ("Code") so as to reflect the above statutory duties and take reasonably practicable steps to ensure compliance with the Code. The Code and the duties that underpin it would need to be brought to the attention of both students and staff (at least) annually.
- Higher education institutions would need to "promote" the importance of freedom of speech and academic freedom. The Bill does not specify how it might expect such promotion to be carried out.
Similar duties would also be imposed on student unions (although there would be no equivalent of the duty to "promote" the freedoms set out in the Bill).
Enforcement
Importantly, the Bill would establish a new free speech complaints scheme enforced by the Office for Students ("OfS"). Where a complaint was upheld by the OfS it could make "recommendations" (which would be mandatory in nature). The OFS could require a higher education institution or student union to make payment in respect of an upheld complaint (including, possibly, to the complainant).
The Bill would also: (1) create a new "Director for Freedom of Speech and Academic Freedom" within the OfS, tasked with monitoring compliance with the duties that would be enacted by the Bill and (2) impose additional obligations on those institutions seeking to register with the OfS.
Implications
The Bill has been long-awaited and is already proving controversial. Whilst higher education institutions in England will be used to comply with existing free speech obligations, there is no doubt that the Bill has the potential to further focus minds on the issue. In particular, the new enforcement mechanisms provided for in the Bill would, if enacted, mean that universities (and other higher education institutions) would be more likely to face challenge from individuals be they staff, student or visitor.
Our team at Brodies regularly advises clients in the higher education sector in Scotland, England and further afield. If you have any questions relating to the above, or any other matter, please get in touch with Niall McLean or your usual Brodies LLP contact
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