As the Higher Education (Freedom of Speech) Bill (the "Bill") nears Royal Assent, we have summarised the key practical considerations and compliance obligations that higher education providers, including universities and colleges ("providers"), need to be aware of as they prepare for this new law.
James Murray, Robert Lewis and Charlotte Lomas have set out below a brief summary of the new duties under the Bill, along with a compliance checklist of practical questions which providers should be asking themselves.
If you would like any further information on these duties and how best to practically address them, please contact James Murray.
You can also explore more on this topic in an article James wrote recently for the Oxford University Press on academic freedom and free expression under English Law, entitled "The Thinkery and the Academy".
The primary purpose of the Bill is to ensure providers comply with enhanced free speech duties or face sanctions from the Office for Students (the "OfS") and/or legal claims from individuals.
Under the Bill, a new OfS director role for Freedom of Speech and Academic Freedom will be introduced. This new OfS director will sit on the board of the OfS and will essentially ensure that providers are complying with their duties under the Bill, on an active and ongoing basis.
Recent reports suggest that this role will likely be given to Arif Ahmed, a Professor of Philosophy and Cambridge Fellow. Professor Ahmed is noted to be a particularly robust defender of academic freedom and free speech. Combined with the further powers being granted to the OfS, this appointment will mean closer scrutiny and represents a significant shift in the regulatory and compliance environment for providers.
New or amended provider duties:
A1: Core Duties
Duty to secure freedom of speech:
Under section A1 of the Bill, providers will be required to take reasonably practicable steps to secure freedom of speech for its staff, members, students and visiting speakers.
This includes – but crucially is not limited to – securing that the use of any premises of the provider is not denied to any individual or body on the grounds of their, or their members', beliefs or views.
This duty is very similar to the existing duty under s43 Education (No. 2) Act 1986 ("s43 duty"), however, the wording of A1 states that universities must have 'particular regard to the importance of freedom of speech' when taking the 'reasonably practicable' steps. 'Particular regard' has not been explained further, and we continue to wait for new case law or guidance from the OfS to clarify this position.
Duty to secure academic freedom:
The protections under A1 are further extended to include the duty to secure academic freedom, but for academic staff only.
When defining academic freedom, the Bill uses the familiar definition given by s202(2)(a) Education Reform Act 1988, that academic staff should have freedom 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 they may have at their provider. This definition is often reflected in providers' own governing documents.
However, an additional element of this definition has been added in the Bill – the duty not to reduce the likelihood of academic staff securing promotion or different jobs at the provider, on the grounds of said staff exercising their rights to academic freedom. The duty also applies to the recruitment of individuals who are applying for jobs as academic staff at a particular provider, who may have exercised their rights to academic freedom elsewhere.
Does your existing free speech policy (if you have one) and your governing documents recognise the broad and positive duty to secure free speech in all respects for staff, students and visiting speakers?
Sometimes policies are too narrow and relate only to room bookings and visiting speakers, rather than all facets of the provider's activities.
Does your existing free speech policy (if you have one) and your governing documents recognise academic freedom for all academic staff in all respects?
Often governing documents and policies only expressly recognise academic freedom in disciplinary and grievance matters, but the duty is wider than that. Also, many providers limit the definition of academic staff and don't cover, e.g. part time or casual academic staff, as they should.
Have existing recruitment and promotion procedures been reviewed for compliance with the Bill and so academic freedom is properly protected?
As noted above, often academic freedom is only referenced in relation to grievance and disciplinary matters, but the duties under the Bill are wider than that.
Are all relevant staff properly trained on the new requirements of the Bill and the law protecting academic freedom and free speech generally?
There are several new duties to think about and new ways in which to apply or consider existing duties, especially in recruitment and promotion. In our experience, free speech issues are often overlooked and/or poorly understood by administrators
Have your harassment, grievance, disciplinary and whistleblowing policies (in particular) been updated to take account of the Bill's duties and the law protecting academic freedom and free speech generally?
One issue which we often see is providers' harassment policies not properly reflecting the interaction between unlawful harassment under the Equality Act 2010 and the law protecting academic freedom and freedom of speech. It is particularly important to get this right as disciplining an academic for harassment without considering their free speech rights can lead to further difficulties.
A2: Code of Practice
Duty to publish a code of practice
The A2 duty concerns the code of practice which a provider must publish with a view to facilitating the A1 duties. This will be familiar to providers as they are already required to produce such a code as part of their existing s43 duty.
However, there have been additions to this duty, in particular, the policies must now also set out the institution’s values relating to freedom of speech, an explanation of how those values uphold freedom of speech, and the criteria to be used by the provider in making decisions about whether to allow the use of its premises.
Is your existing code of practice up to standard in light of existing requirements and modern best practice?
It may be some time since the code of practice – originally introduced under the 1986 duty – has been scrutinised and this is an opportune time to do so.
What internal steps or approvals are required to update your existing code of practice to reflect the new statutory requirements?
For smaller providers, this may be relatively straightforward, but the approval processes at larger providers can sometimes have much longer lead-in time. You should also build in time for a legal review.
Do you have a clear sense of your institution's value relating to freedom of speech?
Most institutions have a general sense of valuing freedom of speech, but this can quickly become contentious when it is committed to a value statement on paper. Consider taking time to consult staff and students to create consensus.
What criteria would be appropriate for you in making decisions about whether to allow the use of your premises and on what terms?
This is a requirement of the new Bill. Of course, such criteria cannot disadvantage an individual or group because of their ideas beliefs or views, but there other practical considerations which should be borne in mind, depending on the size of your available facilities, etc.
What are the criteria you will use to determine that there ARE exceptional circumstances which might justify you requiring an individual or group to bear the costs of security for using your premises?
Again, this is a requirement of the new Bill. The obligation to include this in your code of practice suggests that failing to do so may mean you cannot rely upon the statutory carve out which allows you to pass on security costs. This could be highly problematic for relatively small providers who end up hosting a particularly controversial speaker which attracts a lot of protest.
A3: The duty to promote the importance of freedom of speech and academic freedom
Section A3 is entirely new and imposes a duty on providers to promote the importance of lawful freedom of speech, and academic freedom for their academic staff, in the provision of higher education.
At present, there is still a lack of guidance on the 'duty to promote', which leaves providers in some doubt as to what they should do. However, in the compliance checklist below, we highlight some areas which providers may wish to consider in order to demonstrate to the OfS that they are complying with this new duty.
- Do you have an internal working group or sub-committee at a high level within your institution which deals with matters relating to academic freedom and freedom of speech, and is that body empowered to make recommendations on policy and practice to the executive body?
- Does your institution have an internal champion for academic freedom and freedom of speech who holds meaningful influence within the institution or who sits on the relevant executive body?
- Does your institution have in place strong statements and policies which encourage the development of an open and safe culture for freedom of speech and academic freedom?
- Is your institution undertaking a holistic audit of its governing documents, policies and training requirements for staff to ensure it is properly complying with the Bill and permeating the Bill's protections for free speech and academic freedom throughout itself?
- Do you have in place appropriate management and PR strategies in order to appropriately respond to controversies around free speech and academic freedom, i.e. is it quick to condemn or affirm its commitment to such principles during appropriate investigations?
New or amended OfS duties that will impact providers:
Mandatory conditions relating to freedom of speech
Under the new Bill, the OfS must ensure that the governing documents of a provider, and the management and governance arrangements on the governing body of that provider, are compliant with the provider's duties under sections A1-A3.
This will mean higher standards are expected of the governing documents and arrangements of the provider with respect to free speech and academic freedom, and they will be subject to the scrutiny and – potentially – the enforcement powers of the OfS.
- Have you reviewed your existing governing documents, in particular, the definition of academic staff (see above), to ensure compliance with the A1 – A3 duties?
- Have you reviewed your existing management and governance arrangements, in particular, the disciplinary and harassment procedures (see above) to ensure compliance with the A1 – A3 duties?
- Have you considered setting up an internal working group on free speech and academic freedom to monitor compliance on an ongoing basis and/or put in place mechanism for gathering appropriate advice?
Free speech complaints scheme
The Bill will create a new complaints scheme specifically for the review and determination of free speech complaints. This is based on the existing student complaint scheme run by the Office of the Independent Adjudicator.
A free speech complaint may come from students, members of staff, individuals who have applied to become academic staff members, and any persons who have, or have at any time, been invited to be a visiting speaker at the provider.
The content of the complaint itself may include claims that individuals have suffered adverse consequences as a result of the action or inaction of the governing body of the provider, or claims that question whether the provider has breached their duty under A1 (the duty to secure freedom of speech and academic freedom).
If the OfS find that the free speech complaint is justified, they will notify the provider of its recommendations, which might include re-instating a dismissed academic or paying compensation.
- What is the existing process for addressing freedom of speech related complaints against staff, and particularly academic staff?
- Have your internal teams got capacity to deal with complaints under the new scheme or will the provider need to approve additional budget for more personnel?
- Have those teams had the training they need to spot high risk cases and generally understand free speech complaints?
Overseas funding: registered higher education providers:
The OfS will now be granted powers to monitor any overseas funding to a provider, with a view to assessing whether such funding presents a risk to freedom of speech and academic freedom in the provision of higher education.
Overseas funding includes endowments, gifts, donations, research grants and contracts, and funding pursuant to an educational or commercial partnership. The overseas funding must have come from a government, incorporated or registered body, or a politically exposed person, from or in relation to, an overseas country other than a prescribed country.
Overseas countries means any country or territory outside the UK, and prescribed country means a country or territory specified in regulations made by the Secretary of State.
This new duty means that providers will need to be more thoughtful about their existing overseas funding, and any future overseas funding they are offered or are currently negotiating.
They will also need to maintain detailed records about funding, as any breach found by the OfS of duties under the Bill generally will trigger a requirement for the OfS to consider the source of funding.
- Have you got in place robust review and recording mechanisms for all overseas funders and overseas funding arrangements?
- Have you got the staff you need to ensure proper records can be taken and retained?
- Are the staff involved in your funding negotiations sufficiently trained to understand the provider's obligations under the Bill?
There is a raft of new compliance requirements for providers. As such, staff will need to be trained and resourced to ensure providers have the capacity to both understand their initial and ongoing duties and appropriately manage them.
In light of the new duties which the Bill brings, there are likely to be significant numbers of challenges under the new complaints scheme or in the courts. The new powers for the OfS and the new director position will also mean providers need to be much more mindful with respect to their regulatory obligations around free speech and academic freedom.
If you would like to discuss what steps your organisation needs to take in order to prepare for the Bill, please contact James Murray.