Leading academics urge government not to U-turn on free speech rights for universities

In a letter coordinated by the Free Speech Union, more than 50 academics have urged the Government not to water down the Higher Education (Freedom of Speech) Bill in response to intense lobbying from the higher education sector (Teegraph).

Unveiled last year by the then Education Secretary Gavin Williamson, the legislation will strengthen protections for free speech and academic freedom in English universities by imposing more robust legal duties on Higher Education Providers and Student Unions.

There are already several laws protecting academic free speech on the statute books, but they are usually ignored. Presently, for instance, academics can seek a judicial review if their rights are violated but that would typically cost hundreds of thousands of pounds, which clearly isn’t viable for most academics. The Higher Education (Freedom of Speech) Bill was particularly promising in that regard because it contained plans to create a robust mechanism for enforcing those existing laws via the introduction of a statutory tort to allow civil claims to be brought in the County Court against Higher Education Providers and Student Unions if they breach their new free speech obligations

As reported in?The Telegraph, however, ministers are now understood to be considering watering down plans to give students and academics powers to sue universities following opposition to the plans in the House of Lords and from professional higher education bodies like the Russell Group.

The news sparked an immediate backlash, with dozens of professors, including many who have been targeted for cancellation in the past, writing to Gillian Keegan, the Education Secretary, urging her not to scrap the Bill’s new statutory tort.

Signatories of the Free Speech Union coordinated letter include Prof Kathleen Stock, the philosophy professor who was hounded out of Sussex University due to her gender critical beliefs (Unherd), and Prof John Finnis, an Oxford law professor who faced calls to be removed from his post because of his views on homosexuality (Oxford Mail). They also include Dr Heather Brunskell-Evans, who was no-platformed by university students at King’s College London after she discussed transgender issues on a radio show (Times).

In the letter, the academics say that critics of the Bill “underestimate the scale of the free speech crisis in our universities” because “for the most part” they are “ideologically aligned with the enforcers of intellectual orthodoxy and therefore have not had to self-censor or contend with prolonged investigations merely for expressing their opinions, let alone the bullying and intimidation faced by academics who challenge the prevailing wisdom on campus about trans rights”.

Speaking to the?Telegraph, FSU General Secretary Toby Young commented: “The FSU gets about 50 cries for help a week, many of them from students and academics who’ve got into trouble for exercising their lawful right to free speech. If this Bill is passed as it stands, the vast majority of them will be in a stronger position.

He added: “Universities will have to defend their right to free speech, knowing they could be sued in the County Court if they don’t. But if the Government bends the knee to the universities lobby and neuters the Bill, free-thinking students and academics won’t be any better off.”

The FSU fears that without the crucial enforcement mechanism of a statutory tort, which will enable students and academics whose speech rights have been violated to seek remedy in the County Court, the Higher Education (Freedom of Speech) Bill will be more honoured in the breach than the observance just as the duty to uphold free speech in the Education (No. 2) Act 1986 has been.

The Education Act imposed a legal duty on universities to uphold free speech, but it has proved largely ineffective because the only way of forcing higher education providers to comply is to bring a judicial review in the High court, a lengthy, costly and risky procedure. Because of that, universities have little incentive to observe the law. In the absence of a statutory tort making it easier for students and academics to bring suit, the new Bill is likely to be as toothless as the previous one.

Critics of the Higher Education (Freedom of Speech) Bill have argued that the statutory tort will impose burdensome and costly obligations on universities. Writing in?The Times?last week, for instance, Dr Tim Bradshaw, the head of the Russell Group of Universities (a body which represents the UK's leading 24 universities), argued that?“the bill will… create a new right to pursue civil legal claims without adding basic protections to reduce the likelihood of frivolous actions”.

But criticisms of this kind seem oblivious to both the legal architecture proposed by the draft legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.

The first port of call under the Higher Education (Freedom of Speech) Bill for anyone who believes their right to free speech has been infringed, for instance, will be a specialist adjudicator (the new free speech champion at the Office for Students) who will deal solely with university free speech cases.?This is intended as an informal, inexpensive and less risky alternative to the court route, similar in many ways to the Office of the Independent Adjudicator.

It’s true that the Bill will also provide an alternative remedy in the County Court, but because the Bill will forbid a complainant from running the same case simultaneously through the courts and the OfS it is virtually certain that a judge would pressure any claimant to exhaust the OfS route before proceeding with a claim — and the claimant would risk significant adverse costs if he or she then proceeded.

What critics like Dr Bradshaw also seem not to understand is that the courts assign cases to various ‘tracks’ depending on the value of the claim. This aims to ensure the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him might be put on the County Court small-claims track. An academic dismissed from her well-paid professorship might be assigned to the High Court.

The Bill does of course create some risk of burdensome legal action. Were this a knock-down argument, however, we wouldn’t have any enforceable rights. It is inconceivable that the Bill’s critics would deploy these arguments against human rights or equality claims – and they must answer for why they make this seemingly unprincipled distinction.

Universities have had almost 40 years to get their house in order since the Education (No. 2) Act was passed, and in that time free speech and academic freedom have become more and more precarious. That is why the FSU coordinated the letter to Gillian Keegan, the Education Secretary, from over 50 academics who have “swum against the tide” and therefore “know just how little tolerance there can be for genuinely dissenting points of views”. We join with the letter’s signatories in expressing our support for the Higher Education (Freedom of Speech) Bill and urging the government not to neuter it in response to pressure currently being applied by the higher education lobby.

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