Universities and student unions in England must be required to promote freedom of expression
The Higher Education (Freedom of Expression) Bill (21 pages / 174 KB PDF) will require institutions and student unions in England to maintain a code of practice to ensure freedom of expression for staff, students and visitors. The government said the legislation would help eradicate “illegal silence” or “cancel culture”.
A director of freedom of expression and academic freedom will sit on the board of the Students’ Office (OfS), charged with investigating violations of new freedom of expression obligations, including a new system complaints for students, staff and guest speakers. The director may be able to recommend sanctions against establishments, including fines.
The legislation will allow individuals to bring civil suits against institutions registered with the OfS, or student unions, for breaches of their obligations under the law.
Higher education expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said the intention of the bill was to strengthen the powers already in place under section 43 of Education Act No. 2 of 1986, with particular emphasis on student unions. Article 43 of the 1986 law already creates a statutory obligation which obliges the governing bodies of higher education institutions to guarantee freedom of expression within the framework of the law on their premises. The 1986 law includes additional requirements, including the establishment of codes of good practice to manage this obligation. The measures in place in the 1986 law are not directly enforceable against student unions.
“In my experience, higher education providers take these duties very seriously and, as the 2018 Joint Human Rights Committee parliamentary report suggested, evidence of real violations by universities or student unions are not prevalent, as many believe, ”Sladdin mentioned.
Sladdin said that while student unions can be created as separate legal entities, the 1986 law has not been updated to reflect this. Despite this, student unions remained captured by other powers that allow higher education providers to manage the conduct of students and student unions.
“The complexity of the current legal framework means that decisions regarding freedom of expression are very finely balanced. While the reforms may simplify the position around student unions, it is not certain that they will address the broader complexity of the legal framework governing freedom of expression, ”Sladdin said.
The introduction of the right to bring a civil action aims to give people whose right to freedom of expression is unlawfully violated by a higher education institution a more direct right of appeal. Currently, individuals can only bring a judicial review action against a decision not to host an event or to invite a speaker under the 1986 Act and the 1998 Human Rights Act. the man.
“Although judicial review does not in itself give rise to damages per se, a person who has established a breach of a legal duty may seek additional damages if there is a convincing argument that the breach gives rise to additional rights to claim damages. Sladdin said.
The proposed new tort of legal obligation aims to cover some of the groups that the government says do not have a clear right of recourse under the law, such as external responders. However, Sladdin said that “anyone wishing to make a claim will still have to demonstrate that any violation of Section 43 has caused them a loss, which will likely still make it difficult to bring a claim in practical terms.”
It has been suggested that the proposed changes create the possibility of additional claims, but Sladdin is “not convinced that this will easily result in successful litigation in most cases – especially given the obligations already in place in under Article 43 and the fact that these obligations are already taken very seriously by the institutions ”.
However, Sladdin said the new bill could increase the administrative burden on institutions. They will need to prepare detailed audit trails of their risk assessment processes to mitigate the risk of claims. This could create practical difficulties when a decision on whether or not to proceed with an event must be made urgently due to genuine concerns about campus safety, a factor that the courts have previously considered a valid reason for postponing the events. speakers.
The bill was first reported in a February 2021 policy brief released by the Education Department and again mentioned in a briefing leading up to the Queen’s Speech.