The Higher Education (Freedom of Speech) Act 2023 was first introduced as a bill by Parliament on 12 May 2021.
Its stated aim is to strengthen the duty on universities, colleges and students’ unions (SUs) to protect freedom of speech for students, academics and guest speakers.
It has been controversial. Some think it is necessary to address a crisis of freedom of speech and cancel culture on campus. Others are concerned it will have a chilling effect such that controversial speakers and topics are simply avoided altogether, or that it will expose institutions and SUs to vexatious complaints and litigation.
However, after two years of intense scrutiny by the House of Commons and House of Lords, the bill was given royal assent on 11 May 2023.
Does the act simply build on existing statutory requirements for higher education institutions in respect of freedom of speech (primarily under the Human Rights Act 1998 and section 43 of the Education (No 2) Act 1986), or does it represent a seismic shift for the sector?
This article discusses some of the key aspects of the act.
Most universities in England and Wales are considered to be public bodies under the Human Rights Act 1998. This means that they cannot act incompatibly with the European Convention on Human Rights, and more specifically with Article 10, which states that everyone has the right to freedom of expression. Whilst this is not an absolute right, a higher level of protection has always been afforded to academic speech under human rights law.
In addition, section 43 of the Education Act 1986 requires higher education providers to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured’, including producing a code of practice in order to facilitate compliance with that duty.
Under the new legislation, providers will be required to take reasonably practicable steps to secure freedom of speech for their staff, members, students and visiting speakers, and to have particular regard to the importance of freedom of speech.
Whilst this is similar to the existing duty under the 1986 act, the reference to ‘particular regard’ is new, as is an entirely new duty to actively promote the importance of freedom of speech and academic freedom. This is significantly more proactive than the requirements under existing legislation.
Providers are also required to secure academic freedom for academic staff who should have licence within the law to question and test received wisdom; and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or privileges they may have at their provider.
There are also new provisions in respect of not reducing the likelihood of academic staff securing promotions, both at their existing institutions and new ones, if they have previously exercised their academic freedom elsewhere.
The first point to note is the scope of the legislation, which is not limited to registered higher education providers – although all registered providers are, of course, captured.
The act specifies that constituent institutions (meaning any constituent college, school, hall or other institution of the provider) are also required to comply with the core requirements of the act relating to the protection of freedom of speech and academic freedom. This will be particularly noteworthy for the colleges at the Universities of Oxford and Cambridge, which will be squarely captured by this definition.
During the consultation phase, the House of Commons came under criticism that the new proposed duties would not apply to the Oxbridge colleges, much like the 1986 act appeared to offer the colleges an escape from the legislation. The inclusion of section A4 of the act seemingly addresses these concerns and will force the Oxbridge colleges to conform to the same standards as other higher education institutions.
The act also imposes duties on SUs, which must take steps to secure freedom of speech for members, staff, and students of their institutions and visiting lecturers. In particular, SUs should ensure that access and terms of affiliation to the SU are not denied based on a person’s ideas or opinions.
It is notable that neither SUs, nor Oxbridge colleges are registered with the Office for Students (OfS), which will regulate this new regime (more on this below). Indeed, Oxbridge colleges have a different regulator - the Charity Commission – and it remains to be seen whether the two regulators will be aligned on issues involving free speech. This should not be assumed. Most of the charities regulated by the Charity Commission will not have dedicated statutory duties in respect of freedom of speech, and issues involving controversial speech can often lead to storms of publicity in circumstances where charities’ reputations are considered to be key charitable assets.
To comply with the new duty, registered providers and constituent institutions will need to have a code of practice.
Some organisations will already have a version of a code, in accordance with the Education Act 1986.
However, this must now assist with the promotion of freedom of speech. The act says at a minimum this code of practice must say how an institution: (i) intends to uphold freedom of speech, (ii) outline the procedures staff and students must follow in connection with meetings and other activities, (iii) the conduct required of persons involved in any meetings and/or activities and (iv) the criteria for determining whether there are exceptional circumstances that may apply which can limit the freedom of speech.
SUs will also be required to have a code in place, although this is slightly more limited in scope.
The act will also change the landscape in higher education with regards to security at events.
In the case of Professor Ben O-Dor and Professor Suleiman Sharkh v University of Southampton, Mrs Justice Andrews said the University of Southampton’s decision to refuse permission for a conference to be held on its premises due to concerns about security was a ‘perfectly rational and lawful decision’. She also upheld the university’s decision to allow the event to continue only if the security costs were covered by the conference organisers.
However, the act says that the governing body of a registered higher education provider, or constituent institution, must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises. This could result in substantial financial investment on security for controversial events and it seems that higher education providers must budget and take the hit for these costs.
When it comes into force, the act will prohibit the use of non-disclosure agreements (NDAs) for staff, members, students and visiting speakers where they have raised a ‘relevant complaint’. Relevant complaints are those about sexual abuse, sexual harassment, sexual misconduct, bullying or harassment. For the purposes of the act, an NDA will mean an agreement which purports, to any extent, to preclude the person from publishing or disclosing information about their complaint. The act goes as far as to say that even if an NDA is signed, it will be void and invalid.
Speaking about the act, Baroness Barran said that government cannot allow higher education institutions to continue to use NDAs as cover ups for poor conduct. The previous Minister for Higher and Further Education Michelle Donelan, together with the campaign group Can’t Buy My Silence spoke out about the dangers of concealing such misconduct. This public pressure has led to many HEIs voluntarily moving away from NDAs, however, whilst the act does not ban their use, given the complexity of many staff and student complaints, institutions should review their use of confidentiality provisions in standard settlement agreements.
The OfS has been given significant new powers and responsibilities under the act.
Its existing general duties are governed by the Higher Education and Research Act 2018, and the act introduces a new duty to ensure it promotes the ‘importance of freedom of speech within the law in the provision of higher education by English higher education providers’ and protects ‘the academic freedom of academic staff at English higher education providers’. For example, the OfS will monitor registered providers’ compliance with these new duties and will be able to impose monetary penalties on registered providers in cases of non-compliance with the act.
However, perhaps the most significant change is the new complaints scheme created specifically for breaches to freedom of speech. it is understood that this will be modelled on the Office of the Independent Adjudicator’s (OIA) scheme, as the OfS has never run a complaints scheme, or considered individual complaints.
Complaints can be made under the scheme by a person who has suffered adverse consequences as a result of action or inaction by their institution or SU, which breaches their rights to freedom of speech under the act. A complaint can be brought by a student, a member of academic staff or a visiting speaker. It will be particularly interesting to see how this interacts with the OIA’s scheme in the case of student complaints.
As with the OIA’s scheme, to make a complaint, the individual must adhere to a time limit specified by the scheme. A complaint cannot be raised until internal procedures for a complaint have been exhausted and they cannot be raised at all if the matter is also being heard by a court of tribunal. Finally, if a complaint of the same subject matter is being, or has been, dealt with, the complaint will be rejected. Claims which are frivolous or vexatious will also be dismissed.
After reviewing an eligible complaint, the OfS will be required to make a decision on the extent to which the complaint is justified (wholly or partially) or rejected as soon as is reasonably possible. The OfS can then provide recommendations to the institution or students’ union to attempt to ensure complaints do not occur again.
The act will create the role of ‘Director for Freedom of Speech and Academic Freedom’. This person will oversee the performance of the OfS’s free speech function and make reports on the same.
The OfS has also been granted powers to monitor overseas funding to a provider, to assess whether it risks freedom of speech and academic freedom. This is one of the few duties relating to institutions that has come into force already.
One of the most controversial parts of the act was the creation of a new statutory tort. The intention is that this will support those who have been barred from speaking at an event because of their views, or anyone else who has had their freedom of speech infringed by an institution.
In the first instance, unless there is an application for an injunction only, a person should complain to the institution or SU and complete the internal complaint scheme.
If they are dissatisfied with the outcome of their complaint, an individual can take legal action. However, to bring a claim, the claimant will have to show that they suffered either a pecuniary or non-pecuniary loss. This could include losses which are typically harder to quantify such as pain and suffering, mental anguish, and inconvenience and loss of amenities. Thus, the scope to bring a claim is potentially extremely wide, although it will be interesting to track the extent to which the courts are prepared to compensate more trivial losses and how this will compare to the approach in data protection cases, where the damages for non-pecuniary losses have remained low.
Whilst scrutinising the act, the House of Lords struck out this tort altogether due to fears that it could lead to an increase in vexatious and frivolous claims by individuals who want to advocate for their own world views. However, the House of Commons insisted in its inclusion and a compromise was reached whereby the tort was reintroduced but could only be pursued after exhausting the complaints process.
Most of the act is yet to come into force. At present, only parts of sections 7 (regulation of duties on students’ unions), 9 (overseas funding), 12 (extent), 13 (commencement) and 14 (short title) have come into force. Therefore, we will have to wait until the Secretary of State makes the relevant statutory instrument before the rest of the act becomes law. It is possible that further consultation with the sector will take place before this happens.
Given the significant changes, institutions and SUs would be well advised to use this time to focus on how they can become compliant with the act, including by reviewing their existing governance arrangements and policies in respect of freedom of speech and academic freedom, and their precedent settlement agreements for employment cases and student complaints. Those who do not will risk exposing their institutions to legal action, including the new tort which commentators predict will be tested as early as in the first year of the act’s commencement.