What is the Freedom of Speech Act for universities?

What is the Freedom of Speech Act for universities?

The Government’s Higher Education (Freedom of Speech) Bill became law on 11 May 2023, marking a significant advancement in safeguarding freedom of speech and academic freedom on university campuses. It imposes greater responsibilities on universities to ensure students can speak freely both inside and outside the classroom, while also providing enhanced protection for academics teaching potentially controversial material.

By reinforcing existing free speech duties, the Act aims to foster a cultural shift on campuses. The right to engage in free and open debate is crucial in higher education and beyond. Being able to disagree and discuss complex or sensitive topics constructively is vital for a civil society and democracy.

Key provisions of the Act

1. Duty to promote free speech

Universities must actively promote freedom of speech on campus. This includes creating policies that support an open environment where controversial or unpopular opinions can be expressed without fear of censorship or retribution.

2. Protection of visiting speakers

The Act stipulates that universities must ensure that visiting speakers can deliver their talks without undue interference. This is crucial for maintaining a vibrant intellectual environment where a wide range of views can be heard and debated.

3. Students’ Union responsibilities

For the first time, the Act imposes similar free speech duties on students’ unions. They are required to uphold free speech principles and ensure that their activities and events comply with the new regulations.

4. Creation of the Director for Freedom of Speech and Academic Freedom

A new role within the Office for Students (OfS) is established to oversee and enforce the free speech duties of universities. This director has the power to investigate complaints and impose sanctions on institutions that fail to comply.

5. Redress for individuals

The Act allows individuals who believe their freedom of speech has been unlawfully restricted to seek redress through the courts. This provision empowers students, staff, and speakers to challenge perceived infringements on their rights.

What did the Freedom of Speech Act replace?

The Freedom of Speech Act builds on previous legislation, notably the Education (No. 2) Act 1986, which required universities to ensure that freedom of speech was secured for members, students, and employees of the establishment, as well as for visiting speakers. The Freedom of Speech Act and the Education (No. 2) Act 1986 are both pivotal pieces of legislation aimed at safeguarding freedom of speech within UK universities. However, they differ significantly in their scope, provisions, and overall impact on higher education institutions. This analysis explores the key differences between these two Acts.

The Education (No. 2) Act 1986 primarily focuses on general educational provisions across various educational institutions. Among its many regulations, it includes a mandate for universities to ensure freedom of speech within the law, as part of a broader effort to govern educational standards and policies. In contrast, the Freedom of Speech Act 2023 specifically targets higher education institutions, addressing contemporary challenges related to freedom of speech on university campuses. It is explicitly designed to enhance and protect freedom of speech and academic freedom in universities, aiming to counter modern issues such as “cancel culture” and the silencing of controversial or unpopular opinions.

Under the Education (No. 2) Act 1986, universities were required to take reasonable steps to ensure freedom of speech for students, staff, and visiting speakers within the law. This included the creation of a code of practice outlining procedures for meetings and activities where free speech issues might arise. However, the Act’s provisions were relatively broad and lacked specific mechanisms for enforcement or protection against breaches. The Freedom of Speech Act 2023, on the other hand, extends the responsibilities of universities, requiring them to not only protect but also actively promote free speech on campus. It offers more robust protections for academics who teach potentially controversial material. Additionally, it imposes similar free speech duties on students’ unions, ensuring that these bodies uphold free speech principles as well.

A significant feature of the 2023 Act is the establishment of a new role within the Office for Students: the Director for Freedom of Speech and Academic Freedom. This director is empowered to investigate complaints and impose sanctions on institutions that fail to comply with the Act. Furthermore, the Act provides a clear mechanism for individuals to seek legal redress if they believe their free speech rights have been unlawfully restricted.

What does the Freedom of Speech Act mean for students?

For students, the Freedom of Speech Act intended to bring about several significant implications, reshaping the landscape of expression and dialogue on campus.

Firstly, the Act enhances rights and protections for students. It ensures that students are better protected when expressing their views, whether in lectures, seminars, or public debates. This protection means that students can voice their opinions without fear of institutional censorship, fostering a more open and supportive environment for free expression.

Secondly, the Act promotes more diverse discourse. With universities and students’ unions required to uphold free speech principles, students can anticipate a broader range of speakers and topics being discussed on campus. This diversity enriches the educational experience by exposing students to different viewpoints and encouraging critical thinking.

However, the Act also introduces responsibilities and challenges. While it enhances free speech, students must understand that this right is not absolute and must be exercised within the bounds of the law. This includes respecting the rights of others and avoiding hate speech or incitement to violence. Students need to navigate these responsibilities carefully to maintain a respectful and constructive dialogue.

Finally, the Act encourages active engagement. Students are urged to participate in debates and discussions, fostering a culture of open dialogue. The Act supports the idea that the best response to controversial or offensive speech is more speech, promoting a marketplace of ideas where the best arguments can prevail. This active engagement is essential for developing a vibrant and dynamic academic community.

What are the challenges and critcisims of the act? 

While the Freedom of Speech Act aims to bolster free speech, it has faced several criticisms and challenges.

One major concern is balancing free speech and safety. Critics argue that the Act may make it more difficult for universities to maintain a safe and inclusive environment while upholding free speech. There are worries that the Act could inadvertently protect harmful or extremist speech under the guise of free expression, potentially creating a hostile atmosphere on campuses.

Another significant issue is the administrative burden the Act imposes. The new requirements necessitate that universities and students’ unions develop and enforce comprehensive free speech policies. This additional administrative responsibility could divert resources away from other essential activities and services, placing a strain on institutions already managing various academic and operational demands.

Finally, there is the potential for misuse. The Act could be exploited by individuals or groups seeking to disrupt university operations or promote harmful agendas. Ensuring that the Act is applied fairly and judiciously will be crucial to its success, requiring careful monitoring and enforcement to prevent abuse and maintain the integrity of free speech principles on campus.

How will the Freedom of Speech Act be changed in 2024?

The Office for Students (OfS) has launched a consultation on new guidance regarding freedom of speech, in preparation for universities, colleges, and students’ unions to adopt new free speech duties expected to begin in August this year.

The proposed guidance includes practical examples to illustrate what higher education providers may need to do to comply with these duties. It also provides scenarios showing potential breaches of free speech obligations:

International scholarships

If University A accepts international students on scholarships funded by a government that requires adherence to its ruling party’s principles, this may undermine free speech and academic freedom. University A might need to terminate or amend such scholarship agreements.

Jointly funded institutes

Institute A, funded by University B and a foreign commercial entity, appoints staff through an ideological test. This could penalise applicants and restrict academic freedom. University B may need to terminate or amend these funding arrangements.

Pronoun usage rules

University A’s rule requiring strict adherence to preferred pronouns might restrict lawful free speech, such as in academic writing. The university may need to revise this rule. 

Positive representation in teaching materials

University A’s requirement to depict British history and foreign policy positively could suppress certain viewpoints. This rule may need to be removed to comply with free speech duties.

From August, a new free-to-use complaints scheme will be available for students, staff, and visiting speakers who feel their lawful free speech has been restricted. The OfS can recommend redress if a complaint is upheld.

The OfS is also consulting on changes to its regulatory framework to incorporate its new duties and functions regarding free speech and academic freedom.

Arif Ahmed, Director for Freedom of Speech and Academic Freedom at the OfS, emphasised the importance of free exchange of ideas in higher education. He noted that while universities and colleges have been subject to statutory requirements for freedom of speech since the 1986 Education (No. 2) Act, the new guidance helps institutions and students’ unions prepare for the new requirements. This includes reviewing and updating policies, procedures, and practices to ensure they secure this fundamental right.

The Freedom of Speech Act represents a significant development in the landscape of higher education in the UK. By strengthening protections for free speech, the Act aims to create a more open and dynamic academic environment where ideas can be freely exchanged and debated. For students, this means enhanced rights and opportunities to engage with diverse perspectives, but it also requires a commitment to exercising free speech responsibly and within the law.

As the Act is implemented, it will be essential for universities, students’ unions, and students themselves to work together to uphold the principles of free speech while ensuring that campuses remain safe and inclusive spaces for all. Through dialogue, education, and mutual respect, the goals of the Freedom of Speech Act can be realised, enriching the academic experience for everyone involved.