Does The Higher Education Bill Threaten Our Human Rights?

The Higher Education (Freedom of Speech) Bill is edging closer to its third reading, but is it better positioned to protect or threaten our rights?

While the Bill proposes a number of changes to higher education, including improvements to course flexibility and standards of education, its most hotly contested sections seek to protect freedom of speech and stop universities “no-platforming” controversial speakers. 

Presented as a protective instrument of law defending the right to freedom of expression, which is enshrined in Article 10 of the Human Rights Act (HRA), the Bill if enacted will require universities to have a “particular regard to the importance of free speech”. However, critics fear that the Bill will simultaneously endanger another right protected in the HRA – the right to freedom from discrimination.

A motivation for the Bill’s introduction is what the government has referred to as a “growing chilling effect on campuses”, in that certain students, lecturers or would-be speakers feel silenced or censored by no-platforming and similar tactics. However, research by the Office for Students (OFS) revealed that, of 59,574 events proposed at higher education institutions in the year 2017/18, only 53 speaking engagements were refused, making the practice relatively rare.

What Does The Bill Aim To Do?

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While the Bill aims to address potential suppression of free speech, it also proposes to modify how higher education functions. 

The Bill is intended to address uneven access, especially as students from the most advantaged backgrounds remain six times more likely to go to the most selective universities, and improve standards of teaching by giving the OFS powers to implement a new ‘teaching excellence framework’. Outlined in the 2015 Conservative Party manifesto, its goal is to incentivise universities to elevate teaching standards and support more students into employment. 

Alongside these proposals, the Bill introduces new measures requiring universities and colleges to defend free speech and “help stamp out unlawful ‘silencing’”.  

“The values of freedom of speech and academic freedom are a huge part of what makes our higher education system so well respected around the world,” said universities minister Michelle Donelan. “This government will tackle head-on the growing chilling effect on our campuses which is silencing and censoring students, academics and visiting speakers.”

These legal duties will extend to students’ unions, meaning that they will have to take “practicable steps” to protect lawful freedom of speech. Institutions that fail to keep these duties could face sanctions, such as fines. 

“It puts a duty on higher education institutions that they must ensure that all stakeholders are free to express their ideas, beliefs or views within the premises of that institution,” explained Rebecca Page-Tickell, director of education and experience at the Royal Docks School of Business and Law. “Additionally, the institution must ensure that through speaking publicly about their ideas, beliefs and views stakeholders are not adversely affected through loss of privilege, loss of potential for promotion or potential to change jobs.”

The Bill establishes a new role for a “director for freedom of speech and academic freedom”, who will sit on the board of the OFS and be responsible for investigating alleged breaches of new freedom of speech duties.

What Are The Potential Benefits?

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The Bill has the potential to improve standards of education at universities and encourage more students from disadvantaged backgrounds to pursue higher education. 

To help students gain clear insight into the standards of their universities, the Bill could “put more information in the hands of students through a ‘transparency revolution’”. It will “place a duty” on institutions to make application, offer, acceptance and progression rates publicly available. These will be broken down by gender, socio-economic background and ethnicity to promote transparency. 

In theory, the Bill would act as a shield for the right to freedom of expression in universities and colleges by preventing speakers, teachers and students from being no-platformed for controversial, but not illegal, viewpoints. 

“It is a basic human right to be able to express ourselves freely and take part in rigorous debate,” said then-education secretary Gavin Williamson. “Our legal system allows us to articulate views which others may disagree with as long as they don’t meet the threshold of hate speech or inciting violence. This must be defended, nowhere more so than within our world-renowned universities.”

Daniel Gorman, director of EnglishPEN, said: “The Bill could help advance academic freedom by strengthening the job security of academics. The potential impact of these provisions is limited, however, by the narrow definition of “academic freedom” used in the Bill – and the fact that jurisdiction to hear claims from dismissed academics is limited to civil courts, rather than employment tribunals, which are more accessible to those with few resources.”

What Are The Potential Drawbacks?

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While the Bill’s other proposals have been broadly accepted, its content on free speech has been met with criticism.

“This Bill is responding to a media-driven concern that certain sections of the population are being deprived of a platform or their right to express their views,” explained Page-Tickell. “In fact, the OFS in reporting on Prevent metrics noted just 0.08% of speakers were non-platformed in 2017-18 and a 0.2% rate of non-platforming in the last two years.”

In its current form, the Bill is somewhat ambiguous. It places a duty on higher education providers (HEPs) to secure the “academic freedom” of staff, meaning they must be allowed to “question and test received wisdom” and “put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected”. The term “adversely affected”, however, lacks definition, leaving universities vulnerable because the Bill will enable people to bring civil claims against HEPs for failing to protect free speech. 

The Labour Party has been particularly critical of the potential abuse of free speech protections laid out in the Bill. During a House of Commons vote, shadow education secretary Kate Green said the proposed legislation was unnecessary because there is no free speech crisis in universities.

“This is a bill to enshrine legal protections for hateful, harmful and divisive speech,” she said. “It is a bill that creates a new legal framework to allow those responsible for such harmful speech to take legal action against universities, eating into the resources that ought to be educating our young people and supporting our world-class research programmes.”

As it stands, the Bill is in danger of setting two human rights on a collision course. Freedom of expression is an important principle in society but it cannot be protected at the expense of the right to freedom from discrimination.