The Higher Education (Freedom of Speech) Bill

The Higher Education (Freedom of Speech) Bill was discussed at the Public Bill Committee this week, with Smita Jamdar – partner and head of education at Shakespeare Martineau – providing evidence to the panel.  

Commenting on the Bill, Smita said: “Over the years I have advised on a number of cases relating to free speech and in every case without fail the university has wanted to support the right to lawful free speech. There has either been a) a concern that the speech in question was not lawful; and/or b) a complaint by staff or students that the university had a duty to consider and then act accordingly.  

“The characterisation of universities one sees as not being interested in promoting free speech or giving in too readily to attempts to suppress lawful free speech is not one I recognise from my experience. But there are undoubtedly competing interests to balance and difficult judgments to make. 

“I don’t see anything in the Bill that will change that position for universities. 

“The Office for Students (OfS) is to be given the power to enforce the duty in two ways. Firstly as a new condition of registration, the breach of which can be enforced through substantial fines, suspension from the register or deregistration. Secondly, through a new free speech complaints scheme under which it can recommend remedies for breach.  

“My concern with both is that the duty applies to freedom of speech that is within the law. If there is a dispute whether speech is or isn’t ‘within the law’ how can a body like the OfS judge that? That is and should be a matter for the courts. Interestingly, in the US, when the Trump administration proposed withholding funding from institutions that did not protect the constitutional right to free speech, it ultimately concluded that there would need to be a court decision that the constitutional right had been infringed before a regulatory or funding body could impose a penalty. That I think should be the case here. Cases that aren’t about the lawfulness of the contested speech could be dealt with by the OfS.  

“The duties of the new Director of Freedom of Speech and Academic Freedom are such that he or she will need to have very specific skills, expertise and be able to demonstrate impartiality to command respect from all sides. At the moment it will be an appointment of the secretary of state. There should be more safeguards around the appointment process.  

“The current provisions relating to the statutory tort are potentially problematic. There is no harm threshold and so claims could be brought on the basis of trivial and inconsequential alleged breaches. It seems as if anyone can bring a claim irrespective of whether they are directly affected by the alleged breach, which could make universities and students unions a target for lobbying groups and groups wishing to pursue particular agendas rather than genuine free speech issues.  

“Currently there is nothing in the Higher Education Bill that will prevent claimants issuing a complaint directly to the courts, with no requirement to exhaust internal complaints processes. I would recommend that this is amended as it could rapidly become time consuming and expensive and inevitably divert resources and leadership focus from other university activities such as teaching, learning and research. The impact on students unions could be particularly profound and given their sometimes precarious financial situations could make them extremely risk averse and paradoxically reduce the opportunities for speakers and events.  

“The Bill defines free speech as the freedom to express views without ‘adverse consequences’, and this is both practically and philosophically absurd to try to enforce by legislation. We cannot legislate human nature, so while universities can facilitate free speech, they cannot and should not police people’s reactions to it, except to the extent that those reactions breach expected standards of conduct.  

“The university could therefore, facilitate someone’s right to speak who could then complain that they had faced people being rude to them, shunning them, publicly criticising them or writing open letters demanding that they are excluded from some opportunity or benefit. Protest, robust criticism, calls to cancel contracts or terminate appointments will, and indeed must be allowed to, continue, as these are the exercise of the rights to freedom of speech and expression of those engaging in them. Harassment and threatened or actual violence are not, and that is where universities can and already do intervene. 

“I think all they can do is ensure they facilitate the right to speak and to act where anything is done that constitutes a breach of its disciplinary codes. They cannot be responsible for as abstract a concept as ‘adverse consequences’.” 

Smita has been advising universities for more than 25 years, acting for more than 50 institutions across the UK.