| SPOTLIGHT |
The Education Secretary, Bridget Phillipson, has promised that key provisions of the Higher Education (Freedom of Speech) Act 2023 will be brought into force, whilst “burdensome” provisions will be scrapped.
The Act will require all universities to have “robust” codes of practice to ensure the protection of free speech, which will be enforced by the Office for Students (OfS).
However, elements of the Act which risk leaving universities vulnerable to “disproportionate costs” for legal disputes will be scrapped, including the statutory tort.
The Government stated: “The threat of legal action and the financial fallout for universities breaching their duties under the Act might push some providers to overly defend hateful or degrading speech instead of looking out for students who feel intimidated, out of fear of the consequences.”
Under the Act, universities who break the rules will be publicly held to account and could end up paying compensation.
They could also risk the suspension of their registration, in the most extreme circumstances.
The Government revealed there will be a ban on the use of non-disclosure agreements to silence victims of bullying, harassment or sexual misconduct on campus, which will also be upheld by the Office for Students.
The OfS will have the power to investigate complaints over breaches of free speech from staff, external speakers and members of universities, as well as issuing fines and penalties.
Education Secretary Bridget Phillipson said: “Academic freedom and free speech are fundamental to our world-leading universities and this government is committed to protecting them.
“These changes protect free speech but avoid implementing excessive and burdensome provisions which could have exposed struggling universities to disproportionate costs, diverting money away from students to pay lawyers.
“The decisions we are making about the Act demonstrate that we were right to pause commencement and to review its impact before making decisions on its future.”
The Secretary of State for Education’s announcement that the implementation of several provisions within the Higher Education (Freedom of Speech) Act will proceed was welcomed by the Equality and Human Rights Commission.
Baroness Kishwer Falkner, Chairwoman of the Commission, said: “The free expression and exchange of different views, without persecution or interference, is at the heart of our democracy. In Britain we enjoy significant human rights protections to hold our own opinions and express them freely. These values and protections are also a vital part of higher education. Holding open, challenging debates, rather than silencing the views of those we don’t agree with, helps build tolerance and address prejudice and discrimination.
“Freedom of expression in higher education should be upheld at every opportunity and should only be limited where there are genuine safety concerns, or where it constitutes unlawful behaviour. So the commencement of certain requirements within the Act – including the duty on institutions to promote free speech and take reasonably practicable steps to secure freedom of speech within the law – is an important step forward."
She added: “As Britain’s equality regulator, and the National Human Rights Institution for England and Wales, we will continue to work with the Office for Students (OfS) on the regulation of these new duties.
“The Secretary of State also confirmed that the government will amend the provisions relating to the new complaints scheme, so that the OfS has the power, rather than a duty, to consider all complaints and to put in place a condition of registration on free speech and academic freedom."
Baroness Falkner said it was essential that individuals have a clear route to redress where they believe their right to freedom of expression may have been unlawfully restricted.
“While they can bring a claim of philosophical belief discrimination under the Equality Act 2010 currently, such legal action can be expensive and time-consuming. It is important that the Higher Education (Freedom of Speech) Act provides for suitable routes to remedy in this sector," she said.
Lottie Winson
