Higher Education (Freedom of Speech) Bill: HL Bill 30 of 2022–23

On 28 June 2022, the second reading of the Higher Education (Freedom of Speech) Bill is scheduled to take place in the House of Lords.

Freedom of speech in higher education refers to the ability of staff, students and visiting speakers to express any lawful views. Academic freedom is the ability to put forward new ideas and controversial or unpopular opinions.

Reported breaches of freedom of speech take a number of forms, including ‘no platforming’ and ‘safe spaces’. The Joint Committee on Human Rights said that such breaches were “not pervasive”. However, the government and others have argued that collectively they create a “chilling effect” that has reduced students’ confidence to exercise freedom of speech.

A range of existing legislation and regulation governs freedom of speech in higher education. The government has argued that this is overly complex and contains gaps, such as that victims of breaches cannot obtain redress. In February 2021, the government issued a white paper containing proposed remedial measures. The bill largely reflects the paper through:

• requiring higher education providers (HEPs) and students’ unions to maintain a code of practice on freedom of speech
• a new category of tort, to allow a person to bring a civil case against an HEP or students’ union for a breach of its duties
• new powers and duties for the Office for Students (OfS), the regulator for HEPs in England, including a complaints scheme and a director for freedom of speech and academic freedom

The Labour Party opposed the bill in the House of Commons, arguing that there had been only a small number of incidents where free speech was threatened and that these could be dealt with through existing legislation. It was concerned the new tort could lead to vexatious claims against HEPs.

Several government amendments were made during the bill’s Commons stages. These included: bringing the colleges of Oxford, Cambridge and Durham Universities within the scope of the bill; requiring the OfS to monitor whether overseas funding presents risks to freedom of speech; and providing that HEPs should oversee the activities of their students’ unions.

No opposition amendments were made. Those defeated on division included steps that were intended to limit the extent to which the director for freedom of speech and academic freedom could be a political appointment.