What’s wrong with the Government’s Campus Free Speech Bill?

I wrote last week about the Government’s long-awaited Higher Education (Freedom of Speech) Bill. There, I summarised the core duties which it places on universities and described the new regulatory framework. Here, I want to take a closer look at certain aspects of the Bill and set out some key concerns which I have with it (there are, of course, others).

The stated aim of the Bill is to strengthen existing legislation on freedom of speech and academic freedom in universities, but does it achieve that aim? Only in a narrow sense. As I set out below, there are a number of fundamental concerns which mean that the aim is only superficially achieved, and the Bill would bring the significant downside of giving university administrators more things to take advice on and more compliance hoops to jump through.

In this article, I will consider how the Bill could be amended to make a more meaningful contribution to achieving its aim.

The core duties on universities

The court duties on universities are set out in sections A1 to A3 and are the most important parts of the Bill.

The Office for Students and the (new) Director of Free Speech and Academic Freedom have been given new powers to ensure compliance with these duties, and there is a new complaints scheme where issues can be brought to their attention. Further, individuals will be able to bring legal claims for compensation in relation to breaches of the A1 duty (though, note not A2 or A3). As such, these provisions must be scrutinised particularly closely.

A1 mirrors the existing s43(1) duty under the Education (No 2) Act 1986, but with some additions. The Government’s white paper had led commentators to think that the duty would be materially strengthened.

In reality, I believe the correct characterisation of the draft Bill is that this duty has been widened rather than strengthened. The most significant area of “widening” is with regard to academic freedom. As I touch on below, that “widening” does not expand the duty as much as we had expected.

The A1 duty requires the institution’s governing body to take steps that are “reasonably practicable” to ensure freedom of speech within the law for its staff, members, students and visiting speakers.

At its core, for those who are not academic staff, the A1 duty hasn’t changed all that much as compared to the existing s43(1) duty. I note a couple of key issues:

·       The scope of the people responsible for the duty has been narrowed from “every individual and body of persons concerned in the government” of an institution to “the governing body” – would a court therefore, in contrasting the two provisions (s43 survives on the statute books, though not in England), only consider decisions or actions of the governing body acting in a united or official capacity, rather than a decision maker further down the chain of command at an institution or a member of the governing body acting alone? A governing body tends to be a defined group of people, whereas an individual concerned in government is feasibly a wider group of relatively senior people within an organisation who take management decisions.

·       One addition is that, in exercising the duty, an institution must have “particular regard to the importance of freedom of speech”. It is difficult to see what this really adds in the context of the overall duty – perhaps that additional importance must be put on free speech rather than, e.g., security costs – but it is hard to anticipate how a court will interpret that or whether it will have that effect. More importantly, it doesn’t say “to the importance of freedom of speech and academic freedom”.

Without that addition, it is arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice (i.e. you can read the duty as follows: take particular regard to the importance of freedom of speech when taking reasonably practicable steps to achieve the objective of securing academic freedom). I do not think this emphasis is correct: academic freedom (and as part of that academic freedom of speech) should have primacy in the university context. Presumably, one would not want the situation where the free speech of a large group of vociferous protestors is weighed as having more importance than the freedom of an academic (on that issue, see more below).

Overall, for non-academic staff, it is difficult to read the new A1 duty as meaningfully enhancing the existing s43(1) duty.

Further, note that what follows in relation to academics only covers “academic staff” of the institution in question. That does not cover visiting academics to an institution – they have no additional protection for their academic freedom under the new Bill and their rights are the same under the Bill as any other visiting speaker (although when considering “within the law”, one must keep in mind the European Court of Human Rights’ jurisprudence on academic freedom of speech).

There has already been criticism of the Bill in that it may inadvertently give a “right to a platform” to particularly odious speakers (e.g. Holocaust deniers) or otherwise give them additional protection (an issue for which Michelle Donelan, Minister for Universities, got herself into hot water on Radio 4). As the s43(1) duty has not been meaningfully enhanced, I do not agree with the criticism.

The s43 duty never gave any individual a “right to a platform” and neither does the new Bill in my view. Further, as I set out in the context of David Starkey’s controversial comments, one must consider the important qualification of “within the law” and “reasonably practicable” steps. It is true that there are new enforcement mechanisms (e.g. the civil claims route and the complaints system), but the duty on universities has not meaningfully changed.

So, imagine a no-platformed Holocaust denier tries to sue a university under the new Bill. While holocaust denial is not per se explicitly outlawed in a general criminal sense (as it is in other countries), when considering “within the law” in the context of such a claim, a judge would consider the ECtHR jurisprudence (which would give no protection to such speech on the basis of Article 17 of the Convention, which prevents abuse of rights) and the universities’ Equality Act duties (see article above for a fuller discussion).

Either the speech has moved out-with the law because of the wider context and other legal obligations (e.g. it transgresses the Equality Act to allow it), or the claimant fails to convince the court that it should count as “speech within the law” in the sense that it has a protectable and actively enforceable quality (i.e. which holocaust denial does not have under the Convention).

A court would also consider the above in the context of whether the university took (or failed to take) reasonably practicable steps to uphold freedom of speech. I strongly doubt a court would find fault with a university no-platforming a holocaust denier under s43 or the new Bill. The Strasbourg court considers such speech “intolerable in a democratic society” and I do not think a claimant could successfully make out a claim under the new Bill which has holocaust denial at its core.

Additional protection for academics

The Bills seems to be intended to give additional protection to academics who might otherwise be at risk of losing their jobs. However, the employment protections for academics in the Bill are currently weak.

I do think it is likely that dismissed academics will be relying on the Bill to bring claims (perhaps supported by campaigning bodies or crowd funding), but I think their chances of success are generally going to be limited. On top of that, claims cannot be pursued in the employment tribunal, which is a problem for the reasons below.

Under section A6 of the new Bill, a person may bring a civil claim in respect of a breach by the governing body of the provider of any of its duties under A1. The intention seems to be that this means an academic can claim a decision to dismiss, which is in breach of A1, has caused them loss of earnings (etc.) and they are entitled to recoup those from the institution.

The problem is that the A1 duty is unlikely to be strong enough, or indeed well suited at all, for this sort of claim. I set out my concerns in detail in this article – indeed the problem is far worse because, as set out above, the duty has not been meaningfully strengthened to “actively promote”.

In short, what does “reasonably practicable” steps mean and is it suited to considering an individual’s dismissal? It probably means that the institution needs to take multiple factors into account and not just consider what the individual has done or said – i.e. a particularly vociferous / rowdy campaign by students or protestors (e.g. Evergreen College in the US), which damage an institution’s reputation, impede its operation or cause it significant costs, could shift the balance such that not firing the academic is no longer a reasonably practicable step the institution is required to take to uphold freedom of speech or academic freedom.

You can see, therefore, that this is very far from a situation where an academic has genuine employment protection against dismissal for exercising their academic freedom. In other words, provided their opponents cause enough mayhem the protection can effectively fall away. In the section on academic freedom below, I’ll touch again on some other employment related concerns about how that provision is currently worded.

Further, the employment tribunal will not have jurisdiction to hear these claims. The simplicity and cost of access to an employment tribunal is significantly lower than a court. Importantly, the tribunal also has a protective costs regime where, generally, a loser does not pay the winner’s costs. This is usually the reverse in the county / high court. If an academic is claiming years of income have been lost (￡100,000s) then they will be exposed to paying the institution’s costs if they lose, and expensive fees even to get their claims started. This could be prohibitively expensive for academics without third party support and will disincline many people to bring a claim.

What is the solution? As a starting point, if the intention is to give more meaningful employment protection for academics, I recommend a dismissal in breach of the A1 duty should be specifically included as an automatically unfair dismissal, within the jurisdiction of the employment tribunal, without the need for qualifying service, without a cap on potential compensation and with the ability to claim interim relief.

Ideally, a new ground of automatic unfair dismissal would be introduced which tightly defines protected academic expression (perhaps using the ECtHR jurisprudence as a starting point) and makes any dismissal on the grounds of such an expression irrespective of wider context automatically unfair (with the associated benefits above). I expand on that idea in the article linked above.

 Academic freedom

The definition of academic freedom is another area of significant weakness. I do not think the Bill properly reflects the distinction between free speech and academic freedom, presents the concept of academic freedom properly, or gives sufficient primacy to academic freedom.

There are several key issues:

·       Section A1(5) extends the protection to the academic freedom of “academic staff”. This needs to be “academic members”. Not all academics are engaged as staff – i.e. employees or workers of an institution. Many relationships (e.g. honorary, visiting, associate, life or emeritus honours) are not formalised such that they are included by the term “staff”. There is no sensible basis on which to exclude such individuals, who continue to be engaged in academic work. Contrast this (as a court probably would) to A1(9) where “member” is used – a court could read this as Parliament deliberately narrowing A1(5) to only those with a “staff” relationship. Further, as noted above, it is not clear in principle why this duty only extends to staff academics of the host institution, rather than a visiting academic or one in an emeritus position.

·       Section A1(6) defines academic freedom (cf. section A1(9)).

o  There is an inherent problem with the phrase “within the law”, which I set out in detail in this article. In essence, it needs a more precise definition of its scope given the importance and unique qualities of academic freedom of speech.

o  There is a new qualification “within their field of expertise”. This seems to be taken from the case law of the European Court (in particular Erdogan v Turkey), but it appears to be a misreading of that case. First, it misses off a crucial limb of work within their professional competence. This is wider than just a field of expertise – a Professor in Maths could use statistical training and understanding to comment in quantitative sociology for example, which would be within their professional competence but not strictly within their field of expertise (which could be construed narrowly by a court). Second, it excludes other key aspects of the academy, such as pedagogical techniques – a Maths professor isn’t an expert on the theory of teaching, but commenting on teaching is surely within their professional competence. General philosophical questions about epistemology or the scientific / liberal method are not strictly within the field of expertise of a History professor, but surely within their professional competence. Third, that test from Erdogan strictly pertained to extra-mural speech, it did not necessarily relate to an academic journal piece, which would derive the required academic element from other characteristics (e.g. being in a peer reviewed journal) – see Aksu v Turkey. It is surely not the intention that a History professor, who produced a piece on philosophy in a peer reviewed journal, would be excluded from this protection?

o  The definition focuses on questioning wisdom and putting forward ideas, but there are other aspects of academic freedom. For example, governance of the university or system (e.g. on decolonising the curriculum) or institutional affiliations (e.g. to Stonewall), or professional or representative academic bodies (e.g. trade unions). This definition falls short of accepted international standards regarding what academic freedom is, which undermines the Bill’s aim to set a global high water mark.

o  There is no clear delineation of when this protection applies – is it just in academic work or does it also include extra-mural speech (e.g. Twitter)?

·       A1(6) requires institutions to secure an academic’s freedom without “placing themselves at risk of being adversely affected….[by] loss of their jobs”. This is problematic because it is not an express prohibition on actually dismissing an individual. A narrow interpretation would be that the institution is required to put in place structural safeguards to prevent dismissal (e.g. an enhanced disciplinary policy), but has no specific duty against dismissal. The Government may say that this is implied. However, I am cautious about that interpretation. The courts are loathe to expand the routes for claiming dismissal related damages in their case law because of the Johnson v Unisys case – essentially, as Parliament has already established the Employment Rights Act as a remedy for dismissal damages (with tight deadlines and caps on compensation, etc.), the courts cannot circumvent that in case law. There needs to be clear words in legislation for a new route for dismissal damages to be opened up. I do not think we have that here. This limb therefore, at least, needs to be changed to “at the risk of ,or in fact being, adversely affected”. The changes which I suggested about the employment tribunal and unfair dismissal should also be made.

In addition to the above, there are also various places through the Bill where freedom of speech is mentioned but academic freedom is not. It is not clear whether this is deliberate, or an omission that overlooks the important differences between them.

Conclusion

 Overall, the Bill is clearly going to have a significant impact on the sector. The new regulatory regime and enforcement mechanisms certainly do raise the level of legal risk to a material extent, and universities will have to take great care to ensure they are compliant with the new rules. In particular, there are also new duties around hiring and managing academic employees which merit very serious consideration, especially when disciplining and dismissing academics.

However, when one looks at the core duties on universities as set out in the Bill, I do not think the Bill lives up to the grand aims of the Government. It depends on one’s perspective as to whether that is a good thing, but I strongly recommend that all parties work together to ensure the wording of the Bill is updated to deliver the stated policy goals, to reduce the legal complexity and potential for costly disputes as and when the Bill becomes law.