The Education Secretary, Bridget Phillipson, has announced that it is proposed to recommence the Higher Education (Freedom of Speech) Act 2023 in a significantly amended form.
The key provisions were postponed by the incoming government in July 2024, days before they were due to come into force.
Bates Wells, together with NUS Charity and other higher education sector leaders had expressed serious concerns that the old law (and accompanying guidance):
- Risked diverting limited resources from students’ unions and HEPs, which should be used to further their (generally charitable) educational purposes;
- Did not sufficiently take account of the inter-relationship with charity law duties and Charity Commission guidance; and
- Appeared to particularly target equality, diversity and inclusion initiatives at regulated bodies.
NUS Charity were advised in relation to the regime by Bates Wells’ Mark Abbott. Please view Mark’s fuller comments on the problems with the current legislation here.
As revised, the Act is intended to continue to promote and prioritise lawful freedom of speech on campus. However, there are what appear to be significant positive steps – Phillipson’s announcement confirming that:
- The provisions will no longer directly apply to students’ unions. SUs will still, as at present, be subject to other legal rules relating to freedom of speech, but will not it appears need to take the disproportionate steps set out in the previous draft Office for Students guidance.
- The statutory tort, which would have allowed people who claim to have been denied a platform to take court action, has been removed. There is specific reference to an issue with the old law – “the threat of legal action and the financial fallout for universities breaching their duties…[pushing] some providers to overly defend hateful or degrading speech instead of looking out for students who feel intimidated, out of fear of the consequences”.
- The new complaints mechanism has been rationalised.
Mark Abbott, who is a Senior Associate and Parliamentary Agent, says: “While we await details of the proposals, we welcome the comments which appear to point to a more appropriate and proportionate regime, allowing HEPs and SUs to promote both freedom of speech and respect and tolerance, and recognising the importance of their important charity law duties. It is a not only a positive result but a testament to the gargantuan efforts of NUS Charity and others in the sector”.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.