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Government makes proposals to further promote freedom of speech at universities

18 February 2021

Concerned at reports of some viewpoints being effectively unwelcome on university campuses, the Department for Education has announced a series of proposals they hope will strengthen existing requirements that universities foster an environment of free speech and its associated academic freedom.

Setting out the proposals, the Education Secretary referred to an “unacceptable silencing and censoring” giving rise to a ‘chilling effect’ on campuses. The proposals therefore include:

  1. A requirement that registered higher education providers further commit to freedom of speech;
  2. Amendments to the relevant section 43 of the Education (No. 2) Act 1986 to include a duty on Higher Education Providers to ‘actively promote’ freedom of speech;
  3. An extension of these duties to Student Unions;
  4. Powers for the Office for Students, an existing regulator, to impose fines for breaches, and the appointment of a ‘Free Speech Champion’ to the OiS board, to investigate infringements; and
  5. A new civil tort to allow for compensation for those affected by a breach of the amended Section 43. Examples are given as those of students, academics or others who have been expelled, dismissed, or demoted, and to provide compensation for cancelled events or for cancelled visiting speakers.

The proposals identify that, although Freedom of Speech and expression is already legislated for in various respects for Higher Education Providers, it currently lacks any practical enforcement methods. The current option of judicial review is not seen by the Department as appropriate. Therefore the appointment of the ‘Champion’ is intended to provide a form of complaints procedure that can recommend sanctions for any breaches of the requirements.

It is important to highlight notes in the proposals which point out that Freedom of Expression is only valid where it remains in the constraints of the law. Therefore unlawful speech such as provocations of violence, acts intended or likely to stir up hatred on grounds of race, religion or sexual orientation, speech amounting to a terrorism related offence, or defamatory speech remain restricted.

It will also be interesting to see in practice how cases are dealt with that interact with universities’ duties under the Equality Act 2010 and the Public Sector Equality Duty.

The proposals can be found here.

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