Freedom of speech in higher education - how did we get here?

Posted: 14/07/2022

The controversial topics of freedom of speech on campus and institutional autonomy recently hit the headlines again when the Guardian reported: ‘Universities to defy government pressure to ditch race equality group – “Line has been crossed” say English universities, after request to drop scheme identifying barriers to ethnic minority students’.

The story was prompted by the publication of an open letter drafted by Universities UK (UUK) in response to an intervention by the government minister (who recently resigned), Michelle Donelan, in relation to a race equality charter run by Advance HE. Donelan stated that universities were autonomous and free to join schemes but noted they should ‘reflect carefully’ on membership. Donelan is also reported to have said: “There are of course a number of other, similar schemes and this letter invites careful consideration in respect of all these.”

The Guardian reported that UUK had confirmed that it intended to ignore Donelan’s request and would remain affiliated with Advance HE. A spokesperson for UUK was reported as saying: “Universities take their responsibilities to promote and protect free speech very seriously. We have yet to see any evidence of how this voluntary, non-prescriptive scheme works against this.”

This new scuffle between the sector and the government arises amid ongoing concerns about the health of freedom of expression in the sector and the ongoing passage of the Higher Education (Freedom of Speech) Bill which has now reached the committee stage in the House of Lords.

But how did we get here?

Concerns about freedom of speech and higher education are not new and statutory protection already exists, with a number of significant developments in the 1980s.

In 1985, Conservative minister Leon Brittan visited Manchester University. This prompted a demonstration protesting against the Government’s policies and Brittan was pelted with eggs. This event is credited with the creation of the Higher Education (No 2) Act 1986 which created a statutory duty on higher education institutions to take reasonably practicable steps to ensure freedom of speech within the law.

Academic freedom has also been the subject of statutory protection. The Education Reform Act 1988 defined the term when specifying the duties of university commissioners in drafting statutes. This states that academics enjoy freedom ‘within the law to question and test received wisdom, and to put forward new ideas and controversial and unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions’. An equivalent definition of academic freedom is included in the Higher Education and Research Act 2017 as a fundamental tenet of ‘institutional autonomy’ which must be given due regard by the Office for Students in its regulatory activities.

Higher education institutions also have obligations in respect of freedom of expression, as set out in article 10 of the European Convention on Human Rights and incorporated into UK law by the Human Rights Act 1998.

Law in action

It was the existing statutory framework and, in particular, the 1986 act that led to the government amending the statutory guidance for higher education institutions on complying with the “Prevent” duty under the Counter Terrorism and Security Act 2015.

It was also existing legislation that was relied on - albeit ultimately unsuccessfully - by the organisers of the conference 'International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism', which was cancelled by Southampton University and subsequently allowed to proceed only if the organisers agreed to meet significant security costs.

The organisers sought permission to judicially review the University for breach of the 1986 act, as well as their rights under the European Convention on Human Rights. Their application for permission was unsuccessful with the High Court accepting that, although there had been an interference, it was proportionate.

More recently, Akua Reindorf’s report on the University of Essex’s treatment of two academics concluded that the University had breached their rights to freedom of expression because of preconceptions about their views on trans rights and gender identity.

The review found the university was in breach of its statutory duty to take reasonably practicable steps to ensure that freedom of speech within the law is secured for visiting speakers in accordance with the 1986 act, as well as its own freedom of speech and academic freedom policy and existing OfS regulatory requirements.

Is there change afoot?

It is in this context, coupled with high profile cases in Bristol and Sussex, that the new bill was proposed. Earlier this year many commentators reported that it may not survive because it was running out of parliamentary time. It was also thought that the issues it addressed might be wrapped up in a wider ranging British bill of rights.

However, the bill was carried over into this parliamentary session and, if passed in the form that was brought over from the House of Commons, it will give the sector regulator, the Office for Students, new powers to regulate freedom of speech on campus. The bill will also introduce a new statutory tort for those who can demonstrate they have suffered a loss as a result of a higher education institution’s breach of their rights in relation to freedom of speech or academic freedom.

The bill has garnered criticism from those who argue that it is contrary to seek to protect academic freedom by giving additional powers to the regulator that might constrain it. Others argue that the bill does not go far enough and more wide-ranging protections should be imposed.

As this half century-long debate rages on, we will continue to track developments with considerable interest.

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