Higher Education (Freedom of Speech) Bill 2021

Published on
5 min read

The Department for Education set out proposals in a report in February 2021 to strengthen the legal framework relating to freedom of speech on university campuses and in respect of ‘academic freedom’.

The report states that there “is a growing body of evidence citing a ‘chilling effect’ on staff and students, domestic and international, who may feel unable to express their cultural, religious or political views without fear of repercussion – suggesting that the space for free speech at universities, often contested and febrile, may be becoming constrained.”

Current and proposed legal framework for English Higher Education Providers

Section 43 of the Education (no 2) Act 1986 (the 1986 Act) already places a legal obligation on registered Higher Education Providers 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.”

  1. The Higher Education (Freedom of Speech) Bill proposes that the section 43 duty is removed for registered Higher Education Providers and is replaced with a similar duty on such institutions as follows:
  2. The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection 2.

That objective is securing freedom of speech within the law for –

a) staff of the provider,

b) members of the provider,

c) students of the provider, and

d) visiting speakers.

Additional duties are set out in the Bill for the governing bodies of registered Higher Education Providers to:

  • maintain a code of practice to facilitate the discharge of the duty to secure freedom of speech; and
  • promote the importance of freedom of speech within the law in the provision of higher education.

Academic freedom

The new duty proposed by the Bill includes the objective of securing the academic freedom of academic staff. This is defined in the Bill as “their freedom within the law and within their field of expertise a) to question and test received wisdom, and b) to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of being adversely affected” in respect of their jobs or privileges or in respect of securing promotion or a different job at the provider.

Extending the legislation to students’ unions

The duty in the 1986 Act does not apply directly to students’ unions which are, generally speaking, independent bodies. The Bill proposes that students’ unions at registered Higher Education Providers which are eligible for financial support are to be subject to a duty to secure freedom of speech within the law for members of the students’ union, students of the provider, staff of the students’ union, staff of the provider, members of the provider, and visiting speakers.

The role of the Office for Students

The Bill includes provisions to amend the Higher Education and Research Act 2017 to add to the general statutory duties of the Office for Students when performing its functions to have regard to: a) the need to promote the importance of freedom of speech within the law in the provision of higher education by English Higher Education Providers; and, b) the need to protect the academic freedom of academic staff at English Higher Education Providers.

The functions of the OfS are to be extended to promote the importance of freedom of speech within the law and academic freedom in the provision of higher education by registered higher education providers. The OfS is to be empowered to identify good practice relating to the promotion of freedom of speech and academic freedom and to give advice about such practice to registered higher education providers. The Secretary of State may direct the OfS to report on such matters.

A new mandatory condition of registration is to be established which requires that an institution’s governing documents are consistent with their duties on freedom of speech and academic freedom and that an institution has in place adequate and effective management and governance arrangements to secure compliance with those duties. As an ongoing condition of registration, Higher Education Providers are to keep the OfS informed of the associations or bodies which are students’ unions for students at that provider.

The OfS is to have a duty to monitor compliance by students’ unions and is to be empowered to impose monetary penalties on students’ unions for non-compliance.

The Bill will create a new position within the OfS, namely the Director for Freedom of Speech and Academic Freedom who will be on the OfS Board and be responsible for overseeing the performance of the OfS’ free speech functions. This will include investigating compliance by registered higher education providers with their conditions of registration.

New free speech complaints scheme

The Bill will also require the OfS to provide a scheme for complaints about free speech at a registered Higher Education Provider or a students’ union.

This is to cover complaints that a person has suffered an adverse consequence as a result of action or inaction by a governing body of a registered higher education provider or by a students’ union, and also whether the action or inaction was a breach of the duty to secure freedom of speech.

The OfS may make recommendations, including recommendations to make payments, although the scheme will not require OfS to require anyone to do or not to do anything.  

New civil claim for breach of duty

The Bill will establish a new right to bring civil proceedings against a registered higher education provider or against a students’ union in respect of their duties to secure freedom of speech within the law.

Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
Sites
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R

Visitors

Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.

Staff

Mills & Reeve system for employees.