Explainer: Proposed ‘free speech’ legislation for English universities

free speech; universities

On 16 February, Education Secretary Gavin Williamson proposed controversial new legislation that will broaden the legal duties of universities and student unions regarding free speech on campus. The new measures will require universities in England to actively promote free expression and will allow students, academics and visiting speakers to seek compensation for free speech infringement. The government will also appoint a new Free Speech and Academic Freedom Champion to enforce the law.  

In his announcement, the Secretary said: “I am deeply worried about the chilling effect on campuses of unacceptable silencing and censoring. That is why we must strengthen free speech in higher education, by bolstering the existing legal duties and ensuring strong, robust action is taken if these are breached.”

We broke down the details of the proposed legislation, the controversy it has sparked, and what it means for SOAS and other institutions of higher education in England.

Education Secretary, Gavin Williamson.

What exactly is the proposed legislation?

The proposed legislation is linked to the government’s manifesto commitment to academic freedom and free speech. The measures, as outlined in the policy paper, include:

  • The appointment of a Free Speech and Academic Freedom Champion to investigate infringements of free speech and recommend redress
  • A registration condition on free speech and academic freedom with the the Office for Students 
  • A duty on higher education providers and student unions to ‘actively promote’ freedom of speech
  • Introduction of a statutory tort for breach of the duty, enabling individuals to seek legal redress
  • Widened and enhanced academic freedom protections to include recruitment and promotion
  • The establishment of minimum standards for free speech codes of practice 

What is a ‘free speech champion’?

The Free Speech and Academic Freedom Champion will be appointed to the board of the Office for Students, the regulator which represents students’ interests in England. The Champion will be responsible for investigating potential infringements of free speech in higher education and recommend redress, including legal compensation. 

Is there legislation already in place?

Freedom of expression in UK universities is subject to a complex array of legislation related to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly and association. These new proposals aim to strengthen Section 43 of the Education Act (No. 2) 1986, which requires universities to establish and follow a code of practice to protect freedom of speech, to ensure universities to ‘actively promote’ free speech on campus. 

The Prevent duty, introduced by the Counter-Terrorism and Security Act 2015 also places a legal obligation on universities to “have due regard for the need to prevent people being drawn into terrorism”, though it has been criticised for harming free speech on campuses. 

While not enshrined in law, the National Union of Students (NUS) has outlined a no-platforming policy that prevents individuals or groups known to hold racist or fascist views from speaking at NUS events. 

Why is this legislation being proposed now?

Government officials have recently cited several reports and high-profile cases of guest speakers being no-platformed for holding controversial or rightwing views. The government’s manifesto on academic freedom, published in 2020, specifically proposed an Academic Freedom Bill along with other measures to ensure that universities support intellectual dissent and protect lawful speech on campus. In 2018, the previous conservative government commissioned a report to examine the undermining of free speech in universities. At the time, former SOAS director Valerie Amos denied the suppression of free speech on campuses, and argued instead that the threats came from government legislation. 

On a separate but related note, Culture secretary Oliver Dowden is further cracking down on so-called ‘cancel culture’ by hosting a summit with the UK’s biggest heritage bodies this week to discuss contested heritage. 

How does the SOAS student union currently handle claims of free speech infringement? 

As a registered Charity under the Charity Commission, the SOAS SU is legally bound to uphold freedom of speech in campus spaces. The SU also has a complaints procedure where students can express dissatisfaction about the School’s action, inaction or standard of service. 

What are universities’ concerns?

The legislation has been fiercely opposed by many, including the University and College Union, which accused the government of “fighting phantom threats to free speech.” 

The NUS vice-president for higher education Hillary Gyebi-Ababio said: “There is no evidence of a freedom of expression crisis on campus, and students’ unions are constantly taking positive steps to help facilitate the thousands of events that take place each year.”

Sabrina Shah, co-president of Democracy and Education at the SOAS students’ union said: “This new proposed legislation raises concerns for the SU around the policing and criminalisation of students engaging in political activism and political debate on campus and the infringement on academic freedom. We oppose any and all forms of censorship of both staff and students.”

What happens next?

The Department for Education said the next steps for legislation would be set out “in due course” and that it will be engaging with a wider range of stakeholders about the analysis and proposed solutions. 

A statement from Universities UK added: “While it is important that universities continually reflect on ways they can further enhance and support free speech, we await further details on the proposals – including about the role of the free speech champion – before we can comment further about the implications for university and student union activities.”

Do you think there is a crisis of freedom of speech in English universities? Do you think the government was right to step in with this legislation?

Let us know in the comments below. 

Maxine Betteridge-Moes is a SOAS Digital Ambassador pursuing an MA Media in Development. Born and raised in Canada, she has worked in Asia and Africa as a journalist, podcast producer and occasional music blogger. Follow her on Twitter @maxine_moes

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