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The Government has stated that freedom of speech in universities is fundamental to liberty, arguing that it underpins liberal, democratic society and that “[…] our universities have a long and proud history of being a space where views may be freely expressed and debated”. However, it has expressed a growing concern about a ‘chilling effect’ on university campuses with not all students and staff feeling able to express themselves “without fear of repercussion”.

The 2019 Conservative manifesto included commitments to “strengthen academic freedom and free speech in universities and continue to focus on raising standards”. The Government introduced the Higher Education (Freedom of Speech) Bill into the House of Commons in May 2021 and it is currently awaiting a date for report stage.

The House of Lords is due to consider the following question for short debate:

Lord Morris of Aberavon to ask Her Majesty’s Government what assessment they have made of freedom of speech in universities.

At the time of writing, a date for the debate is yet to be scheduled.

Is freedom of speech in universities under threat?

In the Government’s February 2021 policy paper, ‘Higher Education: Free Speech and Academic Freedom’, the then Secretary of State for Education, Gavin Williamson, argued there had been a rise of intolerance on university campuses and a “creeping culture of censorship”. The paper asserted that there was an increasing issue with how controversial ideas were approached

[…] there is growing concern that free speech on university campuses is being affected by increasing intolerance of ideas that challenge conventional wisdom. There are also cases of pressure being placed on students and staff to avoid certain narratives at English universities that are deemed controversial or unacceptable elsewhere.

Pointing to “high-profile incidents where free speech appears to have been limited without clear reason”, the paper cited evidence, such as a 2019 report by the think-tank Policy Exchange, which it said showed a “chilling effect” on free speech on university campuses. The government concluded “there is a growing atmosphere on campuses that is antithetical to constructive debate where differing opinion is respected”.

Critics of the bill have suggested that evidence of a threat to freedom of speech at universities is absent. At second reading of the Higher Education (Freedom of Speech) Bill in the Commons, the Shadow Education Secretary, Kate Green, commented:

I cannot understand why the Government think it is needed. An assessment by the Office for Students found that just 53 out of 59,574 events with external speakers were refused permission in 2017–18. Perhaps that was an unusually slow year for cancel culture and there is a real problem. However, last year a survey found, as we have heard, that of 10,000 events with external speakers, only six were cancelled. The Government’s plans, I am afraid, seem to be based pretty much entirely on a report by Policy Exchange, referenced by the secretary of state and referenced in more than one third of the footnotes of the policy paper that ministers published in advance of the bill’s publication.

In 2018, the Joint Committee on Human Rights (JCHR) examined the issue in its report, ‘Freedom of Speech in Universities’. As part of the inquiry leading to the report the committee commissioned research, conducted a student survey and ran a web forum to establish if students feel free speech is being undermined. The report concluded:

[…] although there were real free speech issues, there was also a widespread view that free speech was not overly inhibited and that it was valued by students.

Regulation of free speech

The legal framework which governs freedom of speech is complex. Freedom of speech also intersects with other legislation such as that relating to discrimination and radicalisation, as the JCHR noted in their 2018 report:

Free speech is not an absolute right: it is right that there are limitations to ensure that it is not exercised in a way which causes harm to others.

The committee highlighted the way in which freedom of speech is balanced with other laws, such as those which govern speech which:

[…] incites murder, violence or terrorism; stirs up racial hatred, or hatred to other groups; causes fear of violence, alarm or distress, constitutes harassment or is defamatory or malicious. It does not prohibit speech which others may find upsetting or offensive.

Higher education providers have a range of statutory duties, such as the duty to protect freedom of speech and the duty to protect students from radicalisation, which have the potential to conflict with each other and affect freedom of speech at universities. In addition to the competing statutory duties for universities regarding freedom of speech, there are also a range of different organisations and people who are responsible for upholding freedom of speech in universities, including the universities themselves, student unions, the Charity Commission and the Office for Students.

The Higher Education (Freedom of Speech) Bill seeks to amend and strengthen existing legislation on freedom of speech and academic freedom in higher education. The explanatory notes state that it would:

  • Strengthen the duties regarding freedom of speech which are currently imposed by section 43 of the Education (No. 2) Act 1986 on higher education providers registered with the Office for Students (OfS), the higher education regulator in England.
  • Create a new duty for registered higher education providers to promote lawful freedom of speech and academic freedom in higher education.
  • Create new duties regarding freedom of speech for students’ unions at approved (fee cap) providers (a category of registered higher education provider).
  • Create a new statutory tort for breach of specified freedom of speech duties. This would enable individuals to bring civil proceedings against a higher education provider and/or students’ union for a breach of free speech duties. It would also allow an individual to seek legal redress for loss they have suffered as a result of a breach of those duties.
  • Enhance academic freedom protections by extending coverage to include recruitment and promotion and making clear it applies to speech within an academic’s field of expertise.
  • Introduce new registration conditions for registered higher education providers on freedom of speech and academic freedom.
  • Introduce regulation by the OfS of students’ unions at approved (fee cap) providers in relation to their compliance with the new duties.
  • Create a new role within the OfS of a Director for Freedom of Speech and Academic Freedom, with a remit to champion freedom of speech and academic freedom on campus, and responsibility for investigations of infringements of freedom of speech duties in higher education which may result in sanctions or individual redress via a new complaints scheme.

Further information regarding the current legal framework relating to freedom of speech at universities, and a detailed discussion of the proposed Higher Education (Freedom of Speech) Bill, is provided in the House of Commons Library briefing, ‘Higher Education (Freedom of Speech) Bill 2021’.

What next?

The issue of free speech in universities seems likely to remain in the headlines. Most recently, the Government has been asked about it in the context of the resignation of Professor Kathleen Stock from her post at the University of Sussex. Responding to the questions in the House of Lords on 16 November 2021, the Parliamentary Under Secretary at the Department for Education, Baroness Barran, said:

No academic should have to fear for their personal safety, particularly as a consequence of expressing lawful views. This incident demonstrates why this Government are pressing ahead with legislation to promote and defend freedom of speech on campuses. […] The Government are clear that any restriction of lawful speech and academic freedom goes against the fundamental principles of English higher education. The new Higher Education (Freedom of Speech) Bill will strengthen existing freedom of speech duties and address the gaps that exist within the current law, including the lack of a clear enforcement mechanism. That will bring with it clear consequences for providers and student unions that breach these new duties.

The date for report stage of the Higher Education (Freedom of Speech) Bill in the House of Commons is still to be announced.

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Cover image by Dom Fou on Unsplash.