By William Hallowell.

In recent years, the right to freedom of speech has come to be seen by some as ‘under threat’. Particularly with regards to academia, students and members of staff within universities have been challenged on their exercising of free speech – challenged for challenging a range of views and opinions. 

From being ‘cancelled’, or even to the extreme lengths of being removed from university courses or being forced to stand down from positions of employment within these institutions, the right to freedom of expression and of free speech, and the extent to which these rights under UK law are upheld, have been increasingly questioned. 

Over the last few years, there have been some high-profile attempted and successful instances of marginalisation of (political) opinion on campus: from the prohibition of sale of newspapers aligned with a certain ‘leaning’, to politically and economically affiliated student societies being shut down or facing demands to be shut down (respectively), to academics being hounded out of their positions – often by the students themselves – for expressing ‘gender critical’ views on the heated transgender debate.  

As a result, the Government has faced increasing demands to act, and prevent universities from curtailing the rights to freedom of speech and expression.

This year, the Government has announced two major steps in order to tackle this issue: the first, devised by then Education Secretary Gavin Williamson, was to introduce a ‘free speech champion’, who’s role will involve powers to fine universities or student unions that wrongly restrict free speech, and order action if people are sacked or otherwise disciplined for their views.

Secondly, also drawn up by the Department of Education under Williamson, is the Higher Education (Freedom of Speech Bill), which is currently undergoing the report stage in the House of Commons. 

This Bill looks at providing protection to university students and staff against potential violations of freedom of speech by the universities themselves, or students unions. It stresses the importance of academic freedom, and the need for the freedom of both students and staff to be able to safely express their opinions, without the threat or fear of academic, professional or social sanction. 

However, whilst the Government has argued that this Bill is vital in its push to tackle what it sees as a growing intolerance on university campuses with regards to political opinion, opposition parties have been critical. Previously, the Labour Party’s shadow Education Secretary, Kate Green, has said that  there is no issue with freedom of speech in universities that necessitates the proposed legislation, which she described as an ‘evidence-free zone’. The Opposition have also said this Bill would give legal protection to ‘hate speech’, and have had an amendment previously rejected that would deny the Bill a second reading in the Commons. 

Additionally, the former Education spokesperson for the Liberal Democrats, Layla Moran, has said previously that the Government’s free speech champion policy is ‘purposefully’ divisive and distracts from an ‘inept’ Education Secretary (a comment aimed at Gavin Williamson made before the latest Cabinet reshuffle). She has also said that free speech in universities is not a priority. 

If eventually given Royal Assent, the Higher Education (Freedom of Speech) Bill will provide the ability for university students and staff to seek monetary compensation through the civil proceedings, if they feel wronged by way of having their right to free speech challenged or impeded. This means that obstructing free speech in an educational setting could become a tort – a civil wrong for which damages may have to be paid. 

The proposed legislation would ‘secure the academic freedom’ of staff by allowing their ‘freedom within the law and within their field of expertise’ to ‘question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of being adversely affected… [by] loss of their jobs or privileges [or] the likelihood of their securing promotion’ within the university. The Bill also states that universities ‘must promote the importance of freedom of speech within the law, and academic freedom for academic staff of [universities]… in the provision of higher education.’

It is clear, therefore, how the Government wishes to reinforce its position on the importance of upholding free speech within academic institutions, and also for universities themselves to promote the importance of their staff to have the free will to express academic opinions within their positions of employment – and question and discuss, freely, opinions they may disagree with. 

This Bill also stresses that student unions that are eligible for financial support must ‘secure’ the free speech of members of the union, staff and students of the provider and visiting speakers – the latter of which has also seen controversy surrounding the discussion of free speech on university campuses, and the ‘cancelling’ or dis-invitation of various invited guests.

The Bill will also ensure that ‘affiliation to a students’ union is not denied to any student society’ on the grounds of an individual’s ‘views, beliefs or ideas, or society’s policy or objectives, or the views, beliefs or ideas of any of its members’. Under the Government’s proposed legislation, therefore, student unions will, alongside universities themselves, be expected to uphold the right to free speech of its members, staff or students of the provider and visiting speakers. 

In regards to the ability for those who feel that their right to free speech has been challenged or infringed upon to seek damages, the Bill could allow for a person to bring civil proceedings against a university’s governing body or student union in breach of their duties in relation to the protection of free speech. This would mean that claimants could fight to be awarded monetary damages against their respective university, should their free speech be deemed substantially affected. 

The Higher Education (Freedom of Speech) Bill, will, if passed, also ensure that the independent body for universities, the Office for Students (OfS), reinforces the Government’s position on upholding free speech at universities outlined in the proposed legislation. The Bill will require the OfS to ‘promote the importance of freedom of speech’ and ‘academic freedom for academic staff’ at universities. It will also allow the ability for the OfS to outline ‘good practice’ in relation to freedom of speech, and give advice on such practice to institutions of higher education. 

This proposed legislation, which is endorsed by a number of senior Government figures, will be likely to receive vast support from voters. The public discussion surrounding freedom of speech – particularly where educational institutes are involved – has been a concern for a number of years. In recent years, universities have come under fire for being ‘woke’ or too ‘progressive’ in their attitudes to political, social and cultural matters debated widely in open discourse (such as with the debate around statues of historic figures or gender ideology). This Bill is likely to be well received by members of the public, a vast number of which are opposed ‘woke’ politics. 

For university students and staff, particularly those who feel that they cannot fully and openly express their views without fear of disparagement, receiving abuse or potentially losing their job or place on their chosen course, this proposed legislation, if eventually given Royal Assent, will be a relief.

It will act as a defence against having their right to free speech curbed by those in positions of power who wish to exert their authority over those whose views they may personally disagree with. 

The Government have firmly set about their plans to protect those who may feel, or who have already fallen, victim to having their freedom of speech curtailed as result of exercising their views and opinions. The ability to seek compensation through civil proceedings will likely be welcomed by students who have already been removed from their courses, or by staff who have lost academic positions, for expressing opinions that may be contradictory to those of their superiors, or unpopular amongst students. By having the opportunity to seek monetary damages should their free speech be impeded, academics and students have been allowed more adequate protection for their reputations, views and positions within universities, should it be necessary to exercise it. 

However, it is also likely that opposition to the Bill, such as the arguments advanced by representatives for Education from opposition parties, will continue to make the case that the proposed legislation to protect free speech at universities allows for scope to ‘say anything’. Opposition to this Bill includes the argument that a platform will be provided to those with extremist or hateful views to spread them, as the Labour Party have suggested by arguing that the legislation would allow for the spread of ‘hate speech’. 

For more from William Hallowell please follow him on Twitter.

© 2021 William Hallwell

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