Freedom of speech: what the new legislation means for universities

The Higher Education (Freedom of Speech) Act received royal assent on 11 May 2023. It has been described as ‘world-leading’ legislation by one of its champions, Professor Eric Kaufmann (Birkbeck, University of London), an authority on academic freedom and free speech who has often debated the proposed legislation with me.

Since its first reading two years ago the Bill provoked much controversy and was subject to real critical scrutiny in the committee stage and in both Houses of Parliament. When it became clear it was to become law, sector-wide bodies - including Universities UK and the Office for Students - made some welcome statements about free speech and academic freedom. Opponents of the Bill argued that it was unnecessary given the existing law in the Education (No 2) Act (1986) that required Higher Education Institutions to ‘take such steps as are reasonable to uphold free speech’ for employees, students and visiting speakers. But the Act goes well-beyond previous requirements.

How will the Act affect universities?

The two major changes are that student unions are being brought within the scope of the legislation for the first time and that both universities and student unions will be required to ‘actively promote’ freedom of speech. What this will mean in practice is unclear, but universities and student unions should log and be prepared to report on how they have actively promoted free speech.

On the regulatory side the act contains a ‘Tort’ that allows academics to sue universities if they feel they have suffered reputational damage or adverse consequences to the progression of their career.

Staff and students can also apply for an injunction in the county court if they claim that there has been an alleged breech of free speech duties without waiting for the completion of any complaints procedure.

The Act also introduces a new role of Director for Free Speech and Academic Freedom, often called a ‘Free Speech Tsar’, to be based at the Office for Students. The role focuses on oversight of the implementation of the legislation and the creation of a complaints system. The Director will have the power to fine universities and student unions that are not compliant with the Act. Professor Arif Ahmed, a Cambridge don, has reportedly been appointed to the role. He has been an active campaigner for free speech and at more than one meeting I have heard him suggest mandatory free speech training for new students.

How well-placed is the University of Derby to meet the requirements of the Act?

The University has clear and concise statements about Freedom of Speech and on External Speakers which are models of good practice. There have been no incidents of ‘no-platforming’ by academics or the Union of Students for nearly a decade.

The University actively promotes and supports free speech and debate. A major indicator of this is that it is the only university to host the prestigious Battle of Ideas Festival and to take it to an audience in the Midlands and the North as the Buxton Battle of Ideas Festival. The motto of the Festival is ‘Free Speech Allowed’.

But the University cannot be complacent. Guidance has been issued by legal experts on how universities can ensure compliance with the law. The suggestions include the appointment of a senior member of staff or a committee to oversee the duty to actively promote free speech, an urgent review of policies to ensure that they comply with the duty and to provide a complaints policy and procedure for those who feel their freedom of speech has been infringed.

The University is in a strong position to be a model for the sector in actively promoting free speech. As the Vice-Chancellor, Professor Kathryn Mitchell CBE DL, said in an opening address at the Buxton Battle of Ideas Festival in 2022 ‘Free speech should be at the heart of everything we do as a university’. The challenge for academics and students is to live up to that vision of the University, not for fear of fines or litigation but because without that commitment we would be a university in name only.