The New Campus Free Speech Bill What Universities Need To Know And Need To Do – Consumer Protection – UK – Mondaq News Alerts

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The purpose of the Bill is to forceuniversities and students unions to comply with enhanced freespeech duties or face sanctions from the Office for Students and/orlegal claims from individuals.

Opposition to, and support for, the Bill have broken alongpredictable political lines. In this blog, I want to focus on thepracticalities of what the Bill would require universities to doand what action they need to take in order to be compliant with thenew law. Love the new Bill or loathe it, the law is going to changeand universities need to act.

I've highlighted in bold below the action steps universitiesmust take and the most key changes of which they need to beaware.

These are set out in sections A1 to A3 and are the mostimportant parts of the Bill. The OfS and the new Director of FreeSpeech and Academic Freedom will be empowered to ensure compliancewith these duties, and individuals will be able to bring civilclaims in relation to breaches of the A1 duty (though, note not A2or A3).

To summarise:

1) The A1 duty is very similar to the existings43 duty (see here this will stay on the statute books, but won'tapply to English higher education providers). It requires theinstitution's governing body to take steps that are"reasonably practicable" to ensure freedom of speechwithin the law for its staff, members, students and visitingspeakers. This includes ensuring that the use of premises isn'tdenied to anyone because of their ideas, beliefs or view. So far,so s43.

What's new is the additional requirement to have"particular regard to the importance of freedom ofspeech" when taking the "reasonably practicable"steps. It's not really clear what either of thosethings mean in practice or whether the additional wording actuallyadds or modifies the duty in any meaningful way. The main case onthe s43 duty involved a cancelled event where the security costsbecame too high perhaps the new emphasis will mean thatcosts have to take more of a back seat to free speech whenconsidering what step are appropriate? We'll need case law toflesh that out.

Also new is the addition of a specific objective tosecure academic freedom for academic staffalongside their general right to free speech. That includesensuring that they are not put at risk of losing their jobs,privileges or promotion prospects.

Combined with the new right to claim for losses in courtarising from breaches of this duty, universities will need to bemuch more careful when dismissing or disciplining academics. Theywill also need to be careful when recruiting for academic posts, asthere will be an addition new duty on universities to ensurethat their application was not adversely affected by any exerciseof their academic freedom.

Interestingly, the Government has chosen a rather narrowdefinition of academic freedom. It only covers question and testingreceived wisdom, and putting forward new ideas and controversial orunpopular opinions which are: (1) within the law; and (2) withinthe academic's field of expertise. It does not include othertraditional aspects of academic freedom, such as discussing how theinstitution is governed or how it affiliates itself (e.g.affiliation with Stonewall is controversial among some academics).Limb (2) is also new and seems to derive (imprecisely) frominternational case law. This seems to be the most controversialaspect of the definition and may be refined or removed during thelegislative process.

2) The A2 duty concerns the code of practicewhich a university must publish with a view to facilitating the A1duty. This will be familiar to universities as they are alreadyrequired to produce such a code as part of the s43 duty.However, there have been additions so universities willneed to review and update their policies immediately upon the newlaw coming into effect. In particular, the policies must now alsoset out the institution's values relating to freedom of speechand an explanation of how those values uphold freedom ofspeech.

Further, the university must also at least once ayear, bring the A1 duty and its code of practice to theattention of all students.

3) The A3 duty is entirely new. It is an active duty topromote the importance of freedom of speech and academicfreedom. At present, there are no further details as towhat is required here, but the Government have previously mentioneda statutory code of conduct which may set out details. This maycome later and/or be left to the OfS and the new Director toconsulate upon and draft.

Unfortunately, a lack of guidance here will leave universitiesin some doubt as to what they must do, particularly if acontroversy arises. For example, if one of their academics facesprotests or an open letter, will they face censure or sanctionsfrom the OfS if they do not release a statement in support ofacademic freedom? If they don't, it seems likely they will befacing a complaint under the new scheme (more on that below) and itwill be up to the OfS and Director to scrutinise their conduct orinaction.

The first two of the above duties also apply to student unionsin a similar form. Both may now be facing legal action forbreach of the A1 (or equivalent) duty. This is new. Underthe old regime, the only real remedy was a judicial review againsta university's decision in a s43 context. This is a complex andexpensive process for individuals who ultimately would have verylittle prospect of achieving any compensation whatsoever.That has now changed. Not only will universities be facingthe prospect of paying out compensation, they will potentially alsobe under threat of significant costs risks if theylose.

There are going to be some important and significant changes tothe underlying regulatory framework which govern universities. Hereis a breakdown of the three most important changes:

All sanctions generally available to the OfS, includingfines, will also apply here. The OfS can impose fines of up to500,000 or two per cent of 'qualifying income',whichever is higher.

As is clear from even that brief summary, the Bill will addfurther complexity to university governance and will introducesignificant new compliance requirements.

In particular, when disciplining and dismissing academics,universities will need to take much greater care and balance thenew legal protections alongside, and perhaps against, existing lawsuch as the Equality Act 2010. The interaction of these new ruleswith the specific situation of some academics (appointed underUniversity statutes and not always employees) will needparticularly careful consideration.

It also seems likely that organisations such as the Free SpeechUnion will use the new law to increase pressure on universities bysupporting their student and academic members in threatening andpursuing claims where academic freedom and free speech issues areconcerned.

Universities will need to consider carefully what the new lawrequires of them, and how best to mitigate the new regulatory andlitigation risks to which they will likely be exposed.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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The New Campus Free Speech Bill What Universities Need To Know And Need To Do - Consumer Protection - UK - Mondaq News Alerts