Thread by @StevePeers

Time for a deep dive into the details of and issues in the Higher Education (Freedom of Speech) Bill

Might be a longish thread - sorry

Here's the bill - bills.parliament.uk/Publications/4…

Govt memorandum - bills.parliament.uk/Publications/4…

Explanatory notes - bills.parliament.uk/Publications/4…

Impact assessment - bills.parliament.uk/Publications/4…

Delegated powers memo - bills.parliament.uk/Publications/4…

I'll be referring to the bill, the memorandum, and the explanatory notes.

The notes say (para 63) that the govt 'is publishing an ECHR memorandum which explains in detail its assessment of the compatibility of the Billʹs provisions with the Convention rights'

No sign of it yet

But first, to fully understand the bill, we have to nip back to the 1980s, to look at the current law on free speech and unis - s 43 of the Education Act 1986: legislation.gov.uk/ukpga/1986/61/…

Here's the core of the existing law on academic freedom and universities (nb it applies in England and Wales)

Notice
- the duty is to 'ensure that freedom of speech within the law is secured'
- it is owed by uni administration (not student unions)
- it is owed to members, students, employees and visiting speakers
- it applies where 'reasonably practicable'

There's a specific obligation to 'to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with' their opinions or views

But this isn't all - that's only a specific part of the general free speech duty, which isn't further defined (see the words 'include' and 'in particular')

Next, a point which is often overlooked: how is this law enforced?

The Act says each uni must draw up a code of practice regarding meetings re invited speakers, and enforce it - possibly including 'disciplinary measures'

So why change the law?

The government Memorandum says it believes that there have been cases of free speech being limited. Also the law isn't generally enforced, and is too complex.

Spoiler: the bill would make the law rather more complex, as we'll see

As for the body of evidence - the methodology of one report the govt refers to has been questioned by @jdportes - theguardian.com/commentisfree/…

And one particularly significant claim of 'no-platforming' turned out to be er, inaccurate

On to the bill itself. All of it applies to England, only a bit of it to Wales (table from the explanatory notes)

The bill starts by restating the general free speech duty (nb s 43 of the 1986 Act will still also continue to exist, with only minor amendments)

Then a reworded version of the existing specific free speech obligations to visiting speakers. Again this is non-exhaustive ("includes"), ie there may be general free speech duties to them, and to the other persons covered by the bill, too.

Some have interpreted the bill as an "obligation to invite". I can't see how it does that. The obligations are owed only to "visiting speakers" (not further defined), not to those who might *wish* to be invited.

Some have suggested that "the Tories will force us to invite Nazis next week".

I'm going to comment on the bill that's actually been tabled, not the Straw Man Bill that exists in your head.

Next, a new specific obligation re academics: to secure their "academic freedom" as defined - applicable to firing, "privileges", promotion and hiring

Note that "academic freedom" is defined by reference to "within their existing field of expertise" - but again, this specific duty isn't the entirety of unis' obligation to academic staff ("includes"). They would *also* (still) owe us a more general free speech duty.

Let's look at that point in concrete terms. A former colleague was fired for sharing Holocaust denial material on social media - haaretz.com/jewish/british…
A computer science guy, so the specific 'academic freedom' obligation doesn't apply. But the general 'free speech' rule would.

Then again, remember that general free speech obligation exists *already*, in the 1986 Act - but didn't prevent him from being fired. There's no further info, but presumably the assumption was that his speech was not 'within the law' - ie the uni has Equality Act duties too.

The bill doesn't amend the existing limits on free speech in other laws - but it's not entirely clear what they are. (For instance, there's a pending appeal about what limits might be placed on employees' comments on trans issues).

And although the bill explicitly deals with employment issues, there's no express link made with employment legislation to flesh out what that means in practice. Have the employment lawyers figured this out yet, @seanjonesqc ?

Next, there's a new definition of free speech as not "suffering adverse consequences". A right not to be "cancelled", if you will.

This is part of the *general* free speech obligation on unis - so it could be the basis of an argument that a firing for controversial opinions which fell *outside* the scope of academic freedom would be covered by the bill.

Equally, while there are no specific free speech duties owed to students (unlike visiting speakers and academics), there is still a general duty - which in this case, might be an argument against expulsion or removal from a course due to expression of opinion, for instance.

What else might "adverse consequences" mean? First, let's remember that the duties here are only owed by unis. People criticising a student, speaker or academic on social media don't owe duties under the bill to that person. Neither does a publisher who cancels a book contract.

But it is arguably open to students to complain about a reduced mark which they believe is on grounds of political opinion, or even a feeling that lecturers were mean about their political opinion in class (a point raised in the govt document).

Govt documents talk a lot about 'feelings' and 'self-censorship'. There's a limited extent to which a bill can deal with this. And there's a point beyond which a statement about the law (say) is not a value judgment but is inaccurate or needs clarification - so loss of marks etc

Next - a revised code of practice obligation for unis. Remember there's an existing code of practice obligation relating to speakers, but this would expand upon it.

What's new?

1) the code of practice must now deal with 'the provider’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech'

also new -

2) 'the criteria to be used by the provider in making decisions about whether to allow the use of premises and on what terms'

3) the obligation to remind students of the code annually.

Point 1 may sound bland. But remember that the code of practice requires the possibility of disciplinary measures against staff or students who break it. Expanding the scope of the code means expanding the scope of possible disciplinary measures.

So that incredibly general obligation not to let anyone suffer 'adverse consequences' for an expression of opinion may lead to the staff or students who caused such 'adverse consequences' being disciplined.

Again, how broadly are we defining 'adverse consequences'? Remember a newspaper article on the eve of the bill being published referred to an 'open letter' criticising another academic for his views on the Empire. But the letter didn't call for any sanction of the pro-empire prof

Here's that letter again - theconversation.com/ethics-and-emp…
The free speech argument is often described as a 'marketplace of ideas'. Don't ban the ideas, debate them. But debating was *exactly what these academics were doing*. What about *their* free speech?

If you express "controversial or unpopular opinions", then *people are going to strongly disagree with you*.
The notion that such disagreement is, by itself, an "adverse consequence" for the controversial guy is utterly absurd.

And furthermore, if a visiting speaker expresses controversial views, there will be protest - not just from within the university, but from outside it.
But what does the 'free speech' govt want to with protest? Severely limit it. A reminder from @IanDunt - politics.co.uk/comment/2021/0…

The government has referred to threats of violence. Of course no one should be attacked or threatened for their views. But as the government's own Memorandum points out, this is a crime already.

And as for the government's claim in that screenshot that it considers the right to protest 'sacrosanct'...

Next, there are new obligations on student unions. Both a general free speech duty and a specific obligation re meetings.

Student unions will now have a code of practice obligation similar to university management.

Next, remedies. There will be a new remedy of civil claims against universities or student unions.

No further details on those remedies, except the explanatory notes (not binding) say that they concern loss suffered as a result of breach of the duties.

It's not explicitly clear if loss is limited to pecuniary loss for a visiting speaker (ie train tickets) or also non-pecuniary loss (the mean uni restricted my free speech). But remember the duties also apply to staff and students, so losses might also be claimed re dismissal etc

How this fits together with the employment law remedies that presumably exist for academics, who knows

More remedies!

New powers for the university regulator. It starts with a power to write warm words, but...

...also the regulator will have the power to fine student unions and enforce conditions against universities

And that's not all! There will also be a new "free speech complaint" procedure before the regulator

Note, however, that if a claim succeeds the regulator will only be able to issue recommendations

The explanatory notes give an idea of what it might recommend

Note that university management might be inclined to be risk averse (perhaps not as likely with student unions?)

So it may be encouraging staff and students not to be critical of controversial people, lest it face all these remedies

Some of us might reply...

And finally, the Toby Young clause!

Are we ready?

The regulator will have a new Free Speech Superdude, surely likely to be someone from the Spikedosphere, if not Toby himself

Remember he was initially appointed to the university regulator, but then withdrew after controversy. Here's a reminder of why I thought he was unsuitable: politics.co.uk/blog/2018/01/0…

Some concluding thoughts. While the rhetoric and evidence base are exaggerated there are nevertheless some indications of people being discouraged from expressing views/researching a field, so it may be useful to entrench protection against dismissal for academics in particular.

But the expressed intention of legislating against "self-censorship" and hurt feelings is not tenable. "Adverse consequences" is in particular too vague. Parliament should not be spending its time debating a "Mean Girls" Clause.

The relationship with other areas of law is not worked out, and it's hard to take the govt's free speech concerns seriously - given its bill restricting protest, whining at anyone who criticises slavery and colonialism, and the weird example of that open letter

Anyway, that's all from me. Hope the thread was useful.