The Higher Education (Freedom of Speech) Bill to return in its original form

Some great news broke yesterday evening (Thursday 2nd February) – the Higher Education (Freedom of Speech) Bill returns to the House of Commons on February 7th and we have good reason to believe the new statutory tort, which will enable students and academics to sue universities that breach their speech rights in the County Court, will be restored in full (Telegraph).

This is a big victory and it’s thanks in no small part to our members and supporters who used our digital campaigning tool to email their MPs urging them not to dilute this important Bill.

As we’ve long pointed out, the?Higher Education (Freedom of Speech) Bill?strengthens the right of students and academics to discuss, debate, and debunk each other’s views (you can read our most recent briefings?here,?here?and?here). Although there are already several laws protecting academic free speech on the statute books, they are more honoured in the breach than the observance. What is so promising about the Higher Ed Bill – at least, as it was originally drafted – is that it both strengthens these protections and creates mechanisms for enforcing them. Specifically,?Clause 4?created?a statutory tort to enable academics and students to sue universities and students’ unions in the County Court for compensation if they breach their new duties to protect free speech on campus, as set out in the Bill.

However, this element of the legislation met with strong opposition during the Bill’s?Second Reading?and?Report?stages in the House of Lords in December.

Sensing trouble, we decided to pull together a letter to the Education Secretary Gillian Keegan from more than 50 academics, urging the government not to get rid of the tort (Telegraph). We think our letter helped to dissuade the Government from scrapping the tort altogether, although its defence of the tort could hardly be described as Churchillian. In an attempt to strike a compromise with the Bill’s critics, the government tabled an amendment in the Lords that would require academics and students to only seek compensation in the County Court as a last resort, after first pursuing complaints through the procedures of the relevant university and the higher education regulator (the amendment can be found?here, close to the top of page 3). We were unhappy about that. Our position is that the new statutory tort is what would give the legislation’s new free speech duties teeth, and if that’s reduced to a weapon of last resort, the Bill is essentially a dead letter.

In what may turn out to be a stroke of good fortune, however, the critics of the Bill in the Lords rejected this compromise and voted to strip out Clause 4 in its entirety. When the Bill returns to the Commons next week, the government has indicated it will restore the tort in its original form – a far better outcome than if the compromise had been accepted in the Lords.

Credit for this sensible decision should go to Claire Coutinho, the Under Secretary of State for Education and the minister responsible for the Bill. Dozens of academics who’ve been at the sharp end of cancel culture in British universities have contacted her to tell her why they think the tort is essential. She has clearly listened to them and not the sector’s lobbyists in the House of Lords, which is greatly to her credit. In politics, as in other walks of life, being intransigent is not always the best policy.

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If you think there’s a risk you’ll be penalised for exercising your legal right to free speech, whether it’s in the workplace or the public square, you need the protection of the Free Speech Union. Membership starts from just ￡2.49 a month. You can join us?here.?

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