Skip to content
The UK's only independent think tank devoted to higher education.

What’s going on with the Higher Education (Freedom of Speech) Bill?

  • 1 February 2023
  • By Josh Freeman

This piece has been written for HEPI by Josh Freeman, who is a postgraduate student and a former HEPI intern. His most recent publication was on students’ perceptions of career services (HEPI Policy Note 40).

Unexpectedly for a piece of legislation whose passage through Parliament has been painfully slow, December 2022 saw a rapid series of changes made to the Higher Education (Freedom of Speech) Bill. 

First, the Government appeared to make large changes to the new statutory tort, a new legal mechanism intended to support those who have had their free speech rights infringed by higher education institutions. Then the Lords scrapped the tort entirely. Now the legislation is back in the Commons, and it is up to ministers in the Department for Education to decide how far to push the issue.

These changes are the latest drama for a Bill which has attracted great controversy on both sides. It has been praised by free speech advocates, particularly those on the right of the political spectrum, who raise concerns about censorship and academic freedom. It has also faced fierce criticism from organisations like the Russell Group and Universities UK. These groups say they agree with the principle behind the legislation but that the Bill’s execution of it leaves much to be desired. What are the changes, and what will it mean for those who work and study in higher education?

The tort – 18 months of debate

The recent debate has focused on Article 4 of the Bill, which creates a new statutory tort. The legislation was intended to support those who have been ‘no-platformed’ – uninvited from speaking at an event because of their views – or otherwise had their speech rights infringed by institutions. Under the tort, victims of no-platforming would be able to take higher education institutions to court for violations of their free speech obligations. Aggrieved individuals would also have access to a new complaints scheme via the beefed-up Office for Students. 

The tort represented an escalation by the Government in its methods to tackle a purported free speech ‘crisis’. Yet the system the legislation proposed to create was a little baffling, not least because it seemed that individuals could pursue multiple complaint routes simultaneously. As the Russell Group suggested, it threatened both to be a bureaucratic nightmare and interfere with institutions’ efforts to comply with other legislation, such as their obligations under Prevent. In the House of Lords, Baroness Garden (Liberal Democrat) and Lord Collins (Labour) were worried about the impact of ‘vexatious and frivolous’ claims brought by interest groups looking to use the courts to push their own world views. 

I found similar risks in my October 2022 report on student societies. The organisers of contentious events already face significant challenges when hosting contentious speakers, not least backlash among other students, as well as all sorts of logistical difficulties. Adding in the possibility of legal claims might well push them towards hosting safer, not more provocative, speakers – the opposite to what the legislation intended. I argued in that report that legal action should only be a last resort, so that students are not caught up in unnecessary and embarrassing legal battles.

The changes to the Bill

In early December, the Government’s spokesman in the Lords, Earl Howe, seemed to accept these criticisms and proposed a series of amendments to the legislation. The most eye-catching change was a streamlining of the tort. Rather than being able to go to court immediately, individuals with complaints would first have to exhaust other complaints schemes at their institution and with the Office for Students. This amendment was approved by a majority of Lords.

However, an even larger change was then made. Against the wishes of the Government, the Lords voted to abolish the tort altogether. Among those opposing the tort was former Universities Minister David Willetts, who reiterated concerns about vexatious legislation. Now the legislation is back in the Commons. It is likely to be sent back and forth between the two Houses in so-called ‘ping-pong’ until they both agree.

In practice, it is unlikely the tort will stay out. The Minister in the Department for Education responsible for freedom of speech, Claire Coutinho, has said the Government is ‘resolute’ the tort will make it into the final version of the Bill. Whether or not it does will depend on how far the Lords is willing to push the issue. Yet with Labour’s plan to abolish the House of Lords hanging over their heads, peers are unlikely to push any fight too far. The most likely course of events, though not guaranteed, is that the Lords eventually back down and allow the tort through.

Just when you tort it was over

If, as many predict, the tort were to return in Earl Howe’s streamlined version, that would be a much-improved outcome as compared to the original legislation. The change will raise the stakes for higher education institutions without encumbering them with too much extra bureaucracy. In the context of a culture which increasingly wants to restrict free speech, the possibility of legal action could be more of a deterrent than an incentive. The new process, while imperfect, is likely to be much more manageable for students.

There are those who say such a change would be a weakening of the legislation. Chief among their concerns is the claim that higher education institutions could ‘run down the clock’ on issues at multiple stages in the process. It may take longer, but any new process must be balanced against the ability of higher education institutions to carry out their other duties. Given the volume of potential complaints, the courts should not be the first port of call. Especially with the threat of more serious punitive action hanging over them, it stands to reason that institutions will be able to tackle most cases internally without issue.

Besides the tort, the Government should go further. It should act positively, rather than merely punitively, to support free speech on campuses. There is a body of enthusiastic and critically minded students looking to host tough events, and they should be supported to do so, for example through guidance to institutions and support to student organisers. The Government will not achieve a cultural change merely by punishing – it needs to work with institutions to provide the conditions for a shift. If the tort survives, it should be part of a holistic approach which supports institutions to create thriving hubs of free speech.

Leave a Reply

Your email address will not be published. Required fields are marked *