Government Poised to Water Down Higher Education (Freedom of Speech) Bill

According to the Telegraph, the Government has tabled an amendment to the Higher Ed Bill in the House of Lords that would significantly dilute the new protections it creates for free speech in English universities.

A free speech law designed to prevent universities from cancelling controversial speakers has been watered down, the Telegraph can reveal.

The Government has made concessions to universities over new powers it had drawn up to enable academics and students to sue institutions for breaching their free speech rights.

It has tabled amendments that would require academics and students to only seek compensation in the courts as a last resort, after first pursuing complaints through the procedures of the relevant university and the higher education regulator.

Claimants would also have to prove they had suffered a loss.

It follows lobbying by Tory peers, who argued that the law would cause universities to face huge costs. However, others in the party are furious at the perceived weakening of the support for free speech.

This is quite a complicated issue, so worth explaining.

As things stood, the Bill would have created a new statutory tort enabling students and academics to sue English universities in the county court if they believed they had breached the new duties the Bill imposes on universities to protect free speech. This was one of two new enforcement mechanisms introduced by the Bill, the other being that it creates a new post of Director for Freedom of Speech and Academic Freedom in the Office for Students with responsibility for ensuring free speech at universities is upheld.

The creation of the new tort has been vigorously opposed in the House of Lords, including by the former Conservative Higher Education Minister David Willetts, and, in the hope of seeing off a rebellion, the Government has proposed a compromise whereby the tort would remain but can only be used as a last resort after students and academics have exhausted all other remedies, including complaining to the Office for Students.

That will have the effect of watering down the Bill for a variety of reasons. If a speaker is no-platformed at a university, the tort in its original form would have enabled them to seek an injunction in the country court, meaning the event could have gone ahead, but if this amendment goes through that will no longer be possible. In addition, while the Office for Students can suggest universities pay fines when complaints are upheld, it doesn’t have the power to force them to do so. But more importantly, turning court action into something that can only be taken as a last resort means the enforcement of the new free speech duties in the Bill is almost entirely dependent on the right person being appointed as the Director for Freedom of Speech and Academic Freedom – someone who passionately believes in free speech rather than a lackey of the universities sector. There’s a risk the current Government won’t appoint the right person, and that risk becomes a racing certainty when it’s Keir Starmer’t turn to appoint their successor.

All regulatory bodies are susceptible to capture by the sector they’re supposed to be regulating and that’s particularly true of higher education. The only way to make sure universities uphold the new free speech duties in the Bill is to give aggrieved parties the option of suing them in the county court. Without that, this Bill will make no more difference that the Education (No.2) Act 1986. That Act imposed a legal duty on universities to uphold free speech, but it’s never been taken seriously by the sector because there was no accompanying enforcement mechanism. The new statutory tort is what gave the new free speech duties teeth. If that’s going to be reduced to a weapon of last resort, the Bill is virtually a dead letter.

Obviously, this watering down is something the Free Speech Union will vigorously oppose. We pulled together a letter last week signed by over 50 academics urging the Government not to ditch the tort entirely (which you can read here). While it hasn’t done that, this compromise renders it almost useless.

The Telegraph article is worth reading in full, not least because it contains this wonderful quote from Jo Phoenix, who was no-platformed by Essex University:

To now think that I would have to go through a lengthy complaints process, well let’s just say that this process is an excellent way that university managers can kick the problem in our universities into the long grass.