Freedom of Speech & Higher Education

Who does the Act Affect?

The Act applies to all registered higher education providers (“HE providers”), including all Universities. The Act also specifies that “constituent institutions” (meaning any constituent college, school, hall or other institution of the provider) will also be required to comply. This means the Act will apply to the Colleges of the Universities of Cambridge and Oxford and relevant students’ unions.

What are the key provisions?

The Act protects free speech within the law.  It does not protect unlawful speech.

In summary, the Act includes a range of measures aimed at strengthening previous legislation on freedom of speech and academic freedom in higher education, including:

• Creating new duties for registered HE providers to promote the importance of lawful freedom of speech and academic freedom;
• Creating new duties regarding freedom of speech for student unions;
• Creating a new statutory tort for breach of freedom of speech duties, enabling individuals who have suffered loss to seek legal redress for loss they have suffered;
• Creating a new complaints scheme (to be operated by the Office for Students), allowing individuals to seek compensation for loss they have suffered;
• Enhancing academic freedom protections by extending coverage to include recruitment and promotion; and
• Banning the use of NDAs to silence victims of sexual misconduct, and other forms of bullying or harassment.

More specifically, higher education providers will be required to secure academic freedom for academic staff who should have licence within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or privileges.

Freedom of Speech Code of Practice

To comply with the new duties, HE providers will need to have a Code of Practice to assist with the promotion of freedom of speech.  This must include detail (amongst other things) on how an institution intends to uphold freedom of speech and outline the procedures staff and students must follow in connection with meetings and other activities and any criteria for determining whether there are exceptional circumstances that may apply which can limit the freedom of speech.

What are the potential consequences of non-compliance?

The inclusion of a new statutory tort is intended to provide a cause of action for those who suffer a loss as a result of a higher education provider failing to take practicable steps to secure freedom of speech.

Before making a claim, the person must have made a complaint under a relevant complaints process and must have received the relevant decision under that procedure. The relevant complaints process will be the OfS free speech complaints scheme or the complaints scheme operated by the Office of the Adjudicator for Higher Education.

Impact for employers

It is likely that any grievance procedure and/or internal investigation followed will become significantly more complex and time consuming.

Action

Ahead of the new law coming into effect, HE providers will need to review and possibly update their governing documents (alongside existing codes of practice in respect of freedom of speech) to prepare for the new duties. HE providers should pay attention to the alignment between freedom of speech and harassment-related policies to ensure that the definitions used do not curtail lawful free speech.

If you have any questions on the Act and how this will affect you, please get in touch with a member of our Employment team.