New duty to protect free speech in higher education: implications for colleges

New legislation aimed at protecting the rights of staff, students and visiting speakers to talk about subjects which are controversial or sensitive is due to come into force soon. The Higher Education (Freedom of Speech) Act 2023 amends provisions in the Higher Education and Research Act 2017 (HERA) and will require some colleges to promote the importance of free speech and protect academic freedom.   

This blog explains the key principles and sets out the steps colleges need to take to prepare.

Are all colleges are impacted by this new law?

Not directly. Only colleges registered with the Office of Students have a duty to comply with the new rules. But that doesn't necessarily mean non-registered colleges can completely ignore them. If you have sub-contracted with registered providers, for example, you may be expected to adhere to the new rules.

What is the new duty?

All colleges have a duty to take reasonable steps to ensure freedom of speech within the law for staff, members, students and visiting speakers in accordance with the Education (No 2) Act 1986. 

The new duty goes further than this. Registered colleges must have “particular regard” to the importance of freedom of speech and to take reasonable steps to achieve it for these groups. 

Academic staff have additional protections. They must be allowed to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without jeopardising their career prospects, having their privileges removed or being dismissed for doing so. 

What does “particular regard” mean?

This relates to the reasonable steps registered colleges have to take to ensure freedom of speech at their institutions. 

Reasonableness will be determined by the regulator, the Office for Students, via a new complaints scheme (more on that below). It has published draft guidance relating to freedom of speech which sets out a comprehensive list of steps that it might be reasonable for a college to take including those relating to admissions, appointments, employment and promotion. 

A few things stand out. It says that:  

• Colleges should not require any academic to commit (or give evidence of commitment) to certain values, beliefs or ideas if that may disadvantage them from exercising their academic freedom within the law. For an example of the type of policy that would breach this, please see our comments on King's College London's EDI policy, available here  
• Interview panels must be adequately trained so that they understand freedom of speech and academic freedom
• Colleges should promptly reject public campaigns to discipline, expel or fire a member of staff (or student) for expressing their lawful views or ideas
• Claims that the lawful views expressed by a member of staff make others feel “unsafe” will not, without more, be enough to make that employee's speech unlawful
• Policies that require staff to use the preferred pronouns of people they come into contact with are “likely to restrict freedom of speech within the law”
• Colleges should not make statements (in contractual documents or elsewhere) which misrepresent their legal duties. That includes oversimplifying complex issues or omitting the importance of free speech. A good example of why this can lead to poor decision making is contained in the Reindorf report into Sussex University's decision to cancel and then blacklist an external speaker with gender -critical views. The report makes it clear that the university's harassment policy and trans policy contained misleading summaries of the law which were influenced by its membership of the Stonewall's Diversity Championship scheme

What speech is covered by the new duty?

The duty to protect and promote free speech applies to “speech within the law”. The key laws it has in mind are the Human Rights Act 1998 (which gives effect to rights and freedoms guaranteed under the European Convention on Human Rights - most relevant in this context are freedom of expression and freedom of thought, conscience and religion) and the Equality Act 2010 which protects people with a protected characteristic from discrimination.  

Speech that amounts to harassment or incites violence or hatred is not protected.

The draft guidance relating to freedom of speech recommends that colleges start from the point that all speech is protected unless it is restricted by the law. Speech that may be offensive or hurtful to some people is protected unless it spills over into unlawful behaviour. It draws attention to the legal definition of harassment (s26 Equality Act) and states that colleges have the freedom to expose students to a range of thoughts and ideas, however controversial and this will not (normally) amount to harassment. It quotes guidance from the Equalities and Human Rights Commission to illustrate this: 

“The harassment provisions [of the Equality Act 2010] cannot be used to undermine academic freedom. Students’ learning experience may include exposure to course material, discussions or speaker’s views that they find offensive or unacceptable, and this is unlikely to be considered harassment under the Equality Act.”

The ECHR has also made it clear that academic freedom should include the freedom to “disseminate information and … to conduct research and distribute knowledge and truth without restriction”. And this freedom “is not restricted to academic or scientific research, but also extends to the academics' freedom to express their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence”.

What are the key battlegrounds regarding academic free speech?

There's been a number of developments in relation to belief discrimination which are relevant to the question of freedom of speech. Under the Equality Act, philosophical beliefs can extend to a wide range of subjects and increasingly feature in discrimination claims. 

There are five legal tests that all have to be met to meet the threshold for protection (these are often referred to as the 'Grainger criteria'). The belief must: 

1. be genuinely held
2. not simply an opinion or viewpoint based on the present state of information available
3. concern a weighty and substantial aspect of human life and behaviour
4. attain a certain level of cogency, seriousness, cohesion and importance
5. be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

These criteria have been interpreted in a number of cases. Belief in climate change, ethical veganism, anti-fox hunting, opposition to critical race theory, anti-Zionism and that people cannot change their sex (gender critical beliefs) have all been held to be protected. 

It's the last in this list that have been particularly controversial in the context of higher and further education. We've seen external speakers no-platformed, students expelled and academics forced to leave their jobs, because their gender critical beliefs were considered to be hateful, transphobic or offensive. Earlier this year Professor Jo Phoenix won her discrimination case against the Open University after her colleagues launched a hostile public campaign against her after she set up a research network which focused on the importance of recognising binary sex. The tribunal found that the OU failed to protect Professor Phoenix because it did not want to be seen to support her beliefs.

To add to the complexity, someone who doesn't share a protected belief is also protected. And although everyone has an absolute right to hold a belief (protected or otherwise), the right to express those beliefs is qualified, even if they are protected. We've written about a couple of examples where the manner in which employees have expressed their beliefs was not protected here and here. 

The issue of belief discrimination, therefore, poses real challenges for colleges for a number of reasons: 

• It can be difficult to second guess whether a particular belief is protected (the fifth Grainger criteria - worthy of respect in a democratic society has been widely interpreted and only beliefs akin to Nazism will be protected, but many beliefs fail on the other grounds)
• Directly opposing beliefs can be equally protected and fiercely argued

Balancing these responsibilities with the duty to uphold the duty to promote and protect free speech will not be easy. Colleges will need to know when to step in and when not to.

What penalties can be imposed on colleges that breach the new duty?

The regulation and enforcement of the new duty is very different. Staff, members, students and external speakers will be able to directly complain to the Office for Students and, once that has been decided, sue in the courts for damages if their rights have been infringed and they suffer loss (which covers both financial and non-financial losses).

The office for Students will also be able to manage compliance through the conditions of registration concerning management and governance of colleges. Colleges that don't comply could lose their registration which will impact their funding and ability to deliver HE. 

When does it come into force?

The new duty to promote free speech is expected to come into force in August 2024, in time for the 2024/25 academic year. 

The Act contains a number of other provisions which will require regulations and, in some cases, consultation before they come into force. We expect these to be phased in during the remainder of this year and into the next. 

How should registered colleges start to prepare for the new duty?

1. The starting point is to have a firm understanding of the law including the Public Sector Equality Duty, Equality Act and Human Rights Act. Key decision makers should have tailored training which covers the law, interpretation and the new duties and all staff should have a broad understanding of these issues 
2. Undertake due diligence. Make sure that anyone you instruct to train your staff does understand the law as it stands, rather than how they, or the organisation they represent, wish it to be 
3. Review your policies. Do they accurately explain the law? If you are not sure, take a legal advice (don't rely on organisations which aren't impartial and may have an axe to grind)

We can help

We understand the law and can help you to navigate this complex area. We can provide bespoke training to your managers and support you to make legally correct decisions. Jenny Arrowsmith is an employment lawyer who specialises in supporting our education clients. Please get in touch with her if you'd like to discuss your requirements. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.