New free speech rules target English universities

The Westminster government has been accused of “fighting phantom threats to free speech” after announcing a series of legal measures to “strengthen” academic freedom in England.

The proposals from the Department for Education include a new free speech condition for higher education providers to be registered in England and access public funding. The sector regulator, the Office for Students, would have the power to impose sanctions, including financial penalties for breaches of the condition.

The tougher legal measures would also extend to students’ unions, which for the first time would have to take steps to ensure that lawful free speech is secured for their members and others, including visiting speakers. Times Higher Education reported in September that legislation on free speech was expected to target students’ unions.

Under the plans, individuals would also be able to seek compensation through the courts if they suffered losses as a result of breach of the free speech duties – such as being expelled, dismissed or demoted.

The announcement also confirmed that the government is set to appoint a “free speech and academic freedom champion” within the OfS to investigate potential breaches of free speech, such as no-platforming speakers or dismissal of academics. The champion would have the power to fine universities or students’ unions judged to wrongly restrict free speech.

The proposals follow a recent letter of guidance from education secretary Gavin Williamson to the OfS, which covered topics including regulating quality and academic freedom. Experts told THE this week that the approach taken by Mr Williamson in the letter could be “setting up a wall between the regulator and the leadership of universities”.

Announcing the new measures, Mr Williamson said he was “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,” he added.  

OfS chief executive Nicola Dandridge said that “universities and colleges have legal duties to protect both free speech and academic freedom, and their compliance with these responsibilities forms an important part of their conditions of registration with the OfS”.

“We will ensure that the changes that result from today’s proposals reinforce these responsibilities and embed the widest definition of free speech within the law,” she said.  

But University and College Union general secretary Jo Grady said that “in reality, the biggest threats to academic freedom and free speech come not from staff and students, or from so-called ‘cancel culture’, but from ministers’ own attempts to police what can and cannot be said on campus, and a failure to get to grips with the endemic job insecurity and managerialist approaches which mean academics are less able to speak truth to power”. 

“It is extraordinary that in the midst of a global pandemic, the government appears more interested in fighting phantom threats to free speech than taking action to contain the real and present danger which the virus poses to staff and students,” she added.

Hillary Gyebi-Ababio, the National Union of Students’ vice-president for higher education, said that the government “would be much better advised to focus on providing the practical support that students desperately need…rather than attacking the very institutions that have stepped up to fill the gaps in support being offered”.

“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,” she said.

Ms Gyebi-Ababio said the announcement was “an opportunity for us to prove once and for all that there is not an extensive problem with freedom of expression across higher education”.

ellie.bothwell@timeshighereducation.com