The Government has today produced a policy paper setting out its proposals to protect academic freedom and free speech in UK universities. In this post, I set out some of the background to why these measures were needed, a brief summary of what they contain, and some initial reflections.

Understanding the problem

"[Academics] describe an atmosphere of fear and intimidation", submitted Professor Kathleen Stock OBE to the current inquiry of the Parliamentary Joint Committee on Human Rights concerning Freedom of Expression. She was responding to the Committee's question on whether the situation on campus regarding academic freedom of speech had worsened since its last report in March 2018). Her answer – emphatically – was that it has.

Professor Stock, more recently, has drawn attention to the website of the GC Academia Network, which hosts anonymous anecdotes concerning the 'no debate' culture in academia and its harmful effect on academia. This collection reflects research on the state of academic freedom in the UK.

Consider a report prepared for the University and College Union in 2017, which concluded that the constitutional and legislative protection for academic freedom in the UK was "negligible". Their survey data from across Europe also concluded that de facto protection for academic freedom in the UK was also poor, and they noted higher instances of bullying and fear of detriments in the UK than elsewhere.

In light of this, the UCU submitted an allegation to the Joint ILO/UNESCO Committee of Experts regarding the UK Government's "non-compliance with the 1997 UNESCO recommendation on the status of higher education teaching personnel." Notably, on 14 February, their general secretary tweeted that, "there was no evidence of a free speech crisis on campus". It does seem somewhat hard to reconcile these two positions, and it is not clear on what basis that more recent comment was made.

The detailed and careful research which underscored the UCU's allegation in 2019 has been echoed in a 2020 report by the Policy Exchange, following research by Professor Eric Kaufmann, Dr Tom Simpson and Dr Remi Adekoya. Around the same time, the Policy Institute at King's College London also produced a report which concluded: "there are signs of a "chilling effect", where some students (25 per cent) are reluctant to express their views for fear of repercussions."

The KCL report was cited by the Education Secretary, Gavin Williamson, when announcing new legislation to protect academic freedom and free speech on campus.

The new measures

Full details of the measures can be found here, along with the Government's detailed rationale for introducing the proposed changes.

In short, the proposals are wide-ranging and can be summarised as follows:

  1. A new Free Speech and Academic Freedom Champion to be appointed to the board of the Office for Students. The Champion will make recommendations on breaches to the OfS, which can impose sanctions, and will have powers to investigate individual cases.
  2. A new registration condition which will require Universities to actively support free speech on campus. This is intended to extend the scope of the Champion's powers.
  3. The section 43 duty (see further here) may be strengthened to include a duty to actively promote freedom of speech within the law. This would be wider than the existing duty to take reasonably practicable steps to ensure free speech is secured within the law. This may also be extended to give direct protections to individuals.
  4. The section 43 duty will be extended to cover Student Unions directly, and regulatory powers will be given to the OfS to enforce their compliance.
  5. Minimum standard for the codes of practice required under section 43. The Government has suggested that these could reflect the spirit of the Chicago Principles, which set out the importance of free speech – see here – which are often seen as a gold standard for such principles.
  6. A new statutory tort, which will give individuals a direct right of recourse as a result of a breach of the section 43 duty. The intention is to compensate individuals for any loss suffered (e.g. a detriment or dismissal which breaches section 43), and to give the duty 'extra teeth'.
  7. Enhanced contractual protections for academic freedom. The intention here seems to be to ensure consistency both across the sector in terms of the type of contractual protection an academic has, and across the range of academics who are covered (i.e. casual and early years researchers, as well as more established dons).

Initial thoughts

In light of the background sketched out above, these measures are very welcome. There is clearly an intention on the Government's part to overhaul a statutory framework which is proving itself to not be fit for purpose.

If these proposals are introduced, there will be significant shift in the balance of incentives for administrators when considering difficult issues related to free speech and academic freedom.

For example, erring on the side of caution when faced with a complaint under the Equality Act 2010 may no longer be an option when an individual can take direct enforcement action for breach of their right to academic freedom. There could now be considerable reputational and financial risks of getting things wrong on both sides (either a breach of Equality legislation or a breach of the new academic freedom law).

The legislative regime for Universities dealing with complaints engaging free speech is likely to get very complex and careful advice will be needed. Proper compliance in terms of updated policies, procedures and contracts will be also be very important.

However, all that being said, there is still work to be done by the Government. Proposals 6 and 7, in particular, need close scrutiny to ensure that they, as intended, give meaningful protection to individuals through the courts and tribunals. I am not convinced, in their current form, that they do that.

Further, no attempt has yet been made to tackle the contours of academic freedom of speech and free speech within the law on campus. That is where the real battleground will be. The Government may say this must be left to the courts to decide, but I would not agree that is good enough for such an ambitious set of proposals. The Government must give greater clarity from the very outset on what these concepts mean and how far the protection actually extends. One approach may be to gold plate existing jurisprudence from the European Court of Human Rights.

I will expand on both of those ideas, and more, in future pieces, and will be discussing them at an upcoming forum on Academic Freedom, which I am co-convening with the University of Buckingham.

Originally Published by Taylor Vinters, February 2021

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