The Government’s Higher Education (Freedom of Speech) Bill became law on May 11, 2023-a significant step towards ensuring freedom of speech and academic freedom on university campuses.
There are increased demands on universities under the Act to secure the students’ freedom of speech inside and out of the classroom, and yet to provide greater protection to academics teaching material offending some of their students.
It will strengthen existing duties to protect free speech and effect cultural change on campuses. The right to a free and open debate is critical in higher education and elsewhere.
We must be able to disagree and discuss complex or sensitive topics constructively; this is essential for civil society and democracy.
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What does it mean to universities, colleges and students’ unions?
Usually, the Act requires that universities, colleges and student unions in England take steps to ensure that lawful freedom of speech is secured on campuses. Prohibition exists only about unlawful speech, including harassment of others or the incitement of violence or terrorism.
It is for universities, colleges, and students’ unions to determine whether the speech is lawful, by reference to criminal law like the Public Order Act 1986, and legislation such as the Equality Act 2010. They will also create and share a code of conduct for free speech on campus.
A new Director for Freedom of Speech and Academic Freedom will be appointed to oversee all functions connected to free speech in the Office for Students (OfS), including the new complaints scheme and investigations if there are accusations against a university that it has breached its duties under the Act.
The new OfS Director will be a champion of free speech on campus and make sure that the OfS acts when necessary.
The OfS, in the National Student Survey 2023, reveals that 86% of students in England could freely state their ideas, opinions, and beliefs. Again, there is much to be done, and this is why we are taking steps forward to make sure this number keeps growing.
What does it mean for students, lecturers and guest speakers?
Under the Act, universities will not be permitted to silence individuals who have complaints of sexual misconduct, abuse, harassment or bullying by using non-disclosure agreements.
This has been a very real problem they wish to crack down on to protect students who have suffered harm.
The Act will also establish a new free-to-use complaints scheme that will be operated by the OfS, the higher education regulator in England.
Students, employees and guest speakers will be given the right to take cases to court if they believe they have been financially or otherwise harmed by the infringement on their First Amendment free speech rights.
We expect the new responsibilities and provisions set forth by this Act to be in place before the 2024-25 academic year.
If I have questions or concerns about free speech on my campus, what should I do?
Although the Act has yet to come into full effect, its governmental regulations must make some, specifying further detail on how the Act will work.
The OfS must also consult on how to set up the new duties and operate the new complaints scheme.
Meanwhile, you can report to your university and not be pleased with the result. Then you can take the issue further to the OfS and also on to the Office of the Independent Adjudicator for Higher Education, the students’ complaints scheme.
What are the new compliance mechanisms?
As regulator, OfS will:
- Monitor providers to ensure their governing documents are compatible with (and enable adequate oversight of) their duties in relation to freedom of speech (it will also directly monitor students’ unions and constituent colleges in respect of their duties under freedom of speech)
- Operate a free speech complaints scheme
- Track foreign funding (over a threshold level) given to universities, constituent colleges and students’ unions so that funding of this nature is not deemed to threaten their free speech and academic freedom functions
- Appointment of Director for Freedom of Speech and Academic Freedom (Professor Arif Ahmed, a fellow of the University of Cambridge, assumed the post in August 2023)
- Promote the value of free expression and academic freedom, including issuing guidance and recommendations on best practices.
What is the university doing to prepare?
There is a Committee on Prevent and Freedom of Speech at the University, a joint committee of the Council and the General Board, monitoring preparations and overseeing an Action Plan implemented by staff within the Governance and Compliance Division. The committee is constituted by representation from various University functions, including the Colleges and Cambridge Students’ Union.
Work has been prioritized, both within the institution and with legal advisers, for example, in a new University Code of Practice on Freedom of Speech agreed and adopted by the Regent House. This Code of Practice brings together, updates and supersedes three University-level documents on freedom of speech: the University Statement on Freedom of Speech, the Code of Practice on Meetings and Public Gatherings on University Premises, and the summary University Free Speech Principles.
In addition to the new Code of Practice, the OfS requires universities to review a range of policies, procedures and processes to ensure their consistency with free speech duties, to embed and document free speech considerations in decision-making, and to provide suitable training and guidance on the subject. Included in these are examples of policies and processes affected in different ways, such as:
- Academic appointments and promotions
- Complaints and disciplinary investigations
- Equality, diversity and inclusion
- Governance
- Teaching and research, including curriculum design and research ethics
- Speaker events
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