Freedom of speech in England is currently protected by a range of legal measures: by the common law, by the European Convention on Human Rights and by domestic legislation. Section 43 (1) of the Education (No 2) Act 1986 provides as follows:
'Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers."
The Department for Education published a report in February this year "Higher Education: free speech and academic freedom". The Government proposes new legislation to "strengthen protections for free speech and academic freedom in higher education".
The report takes the view that the section 43 statutory duty is insufficient and it is proposed that the duty on universities (and those governed by the s43 duty) should be extended to "actively promote" freedom of speech.
There is also an issue identified in the report about the bodies to which the duty applies. Currently the s43 duty does not apply directly to students unions which are typically established as separate bodies, regulated by the Charity Commission. It is proposed that students unions would come under the direct regulatory jurisdiction of the Office for Students for the purposes of the s43 duty.
The Office for Students is to be granted new powers by legislation. There is to be a new "condition of registration" on free speech and academic freedom for those bodies which are on the Register of English Higher Education Providers. The report notes that this will provide the OfS with the power to impose sanctions for breaches. There is also to be a new Free Speech and Academic Freedom Champion who will be a member of the OfS Board who will be able to investigate infringements of free speech in higher education and recommend redress. There are also to be new minimum standards for institutions' mandatory codes of practice on freedom of speech.
A new statutory tort for breach of the s43 duty is proposed which would enable individuals to seek legal redress for the loss they have suffered as a result of breach of the duty.
Further steps are also proposed to enhance the protection for "academic freedom". Section 2(8) of the Higher Education Act 2017 confirms that the OfS has an existing statutory duty to have regard to the need to protect institutional autonomy which is stated to include:
"the freedom within the law of academic staff at English higher education providers (i) to question and test received wisdom (ii) 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 the providers."
We await the details of the draft legislation.