Higher Education (Freedom of Speech) Bill

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Higher Education (Freedom of Speech) Bill
Royal Coat of Arms of the United Kingdom (HM Government).svg
Parliament of the United Kingdom
  • A Bill to make provision in relation to freedom of speech and academic freedom in higher education institutions and in students' unions; and for connected purposes.
Citation HC Bill 012 2021–22
Considered by Parliament of the United Kingdom
Legislative history
Introduced by Gavin Williamson, Secretary of State for Education (Commons)
Lord Howe, Deputy Leader of the House of Lords (Lords)
First reading 12 May 2021
Second reading 12 July 2021
Third reading 13 June 2022
Related legislation
Education (No. 2) Act 1986
Counter-Terrorism and Security Act 2015
Higher Education and Research Act 2017
Status: Pending

The Higher Education (Freedom of Speech) Bill is a proposed Act of the Parliament of the United Kingdom that would impose requirements for universities and students' unions to protect freedom of speech. The legislation would allow speakers to seek compensation for no-platforming through a new statutory tort, empower the Office for Students to levy fines on infringing institutions, and establish a new ombudsman or "free speech champion" charged with monitoring cases of no-platforming and academic dismissals. These measures are intended to protect academic staff, students, and visitors who advocate controversial viewpoints.

Contents

Background

"No platform" policies aiming to deny certain public figures the opportunity to speak have existed among British students' unions since the 1970s, with the National Union of Students adopting its version in April 1974. These policies formalised an approach developed by the anti-fascist student left in the late 1960s. [1] In the 1990s and 2000s, no-platforming efforts focused on the far-right British National Party as well as Islamist groups, particularly Hizb ut-Tahrir. [2] In the 2010s, however, activist attention came to focus more on public figures viewed as transphobic, and some journalists and politicians argued that no platform policies were being extended well beyond the far right. [3]

2020–21 incidents

After student societies at Oxford University deplatformed the history professor Selina Todd and a former home secretary, Amber Rudd, in February and March 2020, the Secretary of State for Education, Gavin Williamson, warned that the government would move to "defend free speech" if universities failed to do so themselves. [4] HuffPost UK reported soon afterwards that the government was preparing a law to protect freedom of speech in higher education, fulfilling the Conservative Party's manifesto pledge in the 2019 general election to "strengthen academic freedom and free speech in universities". A Department for Education spokesperson stated at the time that the government had "made clear that if universities do not uphold free speech, the government will". [5]

In March 2021, David Miller, a professor at the University of Bristol, was put under investigation after making controversial remarks on Zionism, another incident that raised concerns over academic freedom. Lord Parkinson, on behalf of the government, stated in response that universities are "independent and autonomous organisations" with the responsibility to determine the limits of "lawful free speech" for themselves, though the government condemned Miller's comments. [6]

The government confirmed in February 2021 that legislation would soon be brought forward to protect freedom of speech and academic freedom in universities, [7] and published a policy paper outlining its intended approach. [8] Titled the Higher Education (Freedom of Speech) Bill, the proposed law was formally announced at the 2021 State Opening of Parliament on 11 May 2021. [9]

Provisions

The bill would create a statutory tort enabling individuals to sue for compensation for losses suffered from an academic institution's failure to protect freedom of speech. For the first time, it would extend universities' obligation to protect freedom of speech, established in section 43 of the Education (No. 2) Act 1986, to students' unions. [10] In addition, it would institute an office of Director for Freedom of Speech and Academic Freedom, informally the "free speech champion", as an ombudsman to sit on the board of the Education Department's Office for Students (OfS) and monitor potential infringements such as deplatforming incidents and politically motivated academic dismissals. [11] [12] The bill would also establish a duty for the OfS to promote freedom of speech, [13] and empower it to fine infringing institutions. [11]

Legislative history

The bill was introduced in the House of Commons by the Education Secretary Gavin Williamson and given its first reading on 12 May 2021. Its second reading took place two months later on 12 July. After being carried over into the 2022–23 parliamentary session, it received a third reading on 13 June 2022 and was introduced in the House of Lords by the Earl Howe the following day. [14]

Reception

Political reception

In the debate following its announcement in the 2021 Queen's Speech, the Labour Party's Shadow Education Secretary, Kate Green, questioned whether the bill would protect Holocaust deniers, and the Conservative former minister Edward Leigh suggested that it could have "unintended consequences", arguing that free speech "should be governed by good manners" rather than laws. [15] The Prime Minister's Office subsequently rebuked Michelle Donelan, the universities minister, for failing to deny categorically that the bill would force universities to host Holocaust deniers. [16]

Media and advocacy groups

A joint letter from the freedom of expression campaign groups Index on Censorship, English PEN, and Article 19 on 11 May 2021 criticised the bill, arguing that the threat of fines was likely to diminish, rather than enhance, freedom of speech at universities, and would create "a chilling effect" on the content of academic teaching and the scope of research. [17] [18]

Writing in TheDaily Telegraph, however, the Birkbeck politics professor and Policy Exchange fellow Eric Kaufmann welcomed the bill as recognising that the "university's highest value is the search for truth, not the subjectively-defined emotional safety of students", and noted that it drew on previous recommendations by Policy Exchange. [19]

Higher education sector

Jo Grady, general secretary of the University and College Union, a trade union for higher education staff, described the bill as itself "a serious threat to freedom of speech and academic freedom" and argued that the government had "over-exaggerated" the issues motivating the bill. Spokespeople for the Russell Group of universities and Universities UK stated that the bill should be "proportionate" and avoid creating unnecessary bureaucracy, infringing university autonomy, or duplicating existing laws, though the Russell Group shared the government's goal of protecting free expression. [20]

The bill met a mixed reception among academics. Jonathan Grant, a public policy professor at King's College London who authored a 2019 study cited by the government in preparing the legislation, termed the bill "excessive and over the top", and criticised the government for conflating the chilling effect of censorship with "cancel culture". [21] However, the Cambridge philosophy lecturer Arif Ahmed, who led a successful campaign in 2020 to overturn a proposed free speech code at the university demanding respect for others' identities, [22] called the bill "extremely welcome", though he added that "a top-down approach is never going to be a complete solution". [21]

Julian Sladdin, a higher education expert at the law firm Pinsent Masons, noted that persons seeking to make claims under the bill would still need to demonstrate that any breach of duty had caused them legally significant loss, and expressed scepticism that this would "easily translate into successful litigation in most cases". [23]

Related Research Articles

Hate speech is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Holocaust denial</span> Denial of the genocide of Jews in World War II

Holocaust denial is an antisemitic conspiracy theory that asserts that the Nazi genocide of Jews, known as the Holocaust, is a myth, fabrication, or exaggeration. Holocaust denial involves making one or more of the following false statements:

<span class="mw-page-title-main">Oxford University Student Union</span> Organisation

The Oxford University Student Union is the official students' union of the University of Oxford. It is better known in Oxford under the branding Oxford SU or by its previous name of OUSU. It exists to represent Oxford University students in the university's decision-making, to act as the voice for students in the national higher education policy debate, and to provide direct services to the student body. The president for the 2022–23 academic year is Michael-Akolade Ayodeji. Akolade-Ayodeji will be succeeded by Danial Hussain.

<span class="mw-page-title-main">Foundation for Individual Rights and Expression</span> American free speech organization

The Foundation for Individual Rights and Expression (FIRE), formerly known as the Foundation for Individual Rights in Education, is a non-profit civil liberties group founded in 1999 with the aim of protecting free speech rights on college campuses in the United States. FIRE was renamed in June 2022, with its focus broadened to speech rights in American society in general.

Academic freedom is a moral and legal concept expressing the conviction that the freedom of inquiry by faculty members is essential to the mission of the academy as well as the principles of academia, and that scholars should have freedom to teach or communicate ideas or facts without fear of repression, job loss, or imprisonment. While the core of academic freedom covers scholars acting in an academic capacity — as teachers or researchers expressing strictly scholarly viewpoints —, an expansive interpretation extends these occupational safeguards to scholars' speech on matters outside their professional expertise. Especially within the anglo-saxon discussion it is most commonly defined as a type of freedom of speech, while the current scientific discourse in the Americas and Continental Europe more often define it as a human right with freedom of speech just being one aspect among many within the concept of academic freedom.

<span class="mw-page-title-main">Central European University</span> Private Research University based primarily in Vienna

Central European University is a private research university accredited in Hungary, Austria, and the United States, with campuses in Vienna and Budapest. The university is known for its highly selective and intensive programs in the social sciences and humanities, low student-faculty ratio, and international student body. A central tenet of the university's mission is the promotion of open societies, a result of its close association with the Open Society Foundations. CEU is one of ten members comprising the CIVICA Alliance, a group of prestigious European higher education institutions in the social sciences, humanities, business management and public policy, such as Sciences Po (France), The London School of Economics and Political Science (UK), Bocconi University (Italy) and the Stockholm School of Economics (Sweden).

<span class="mw-page-title-main">Freedom of speech in the United States</span>

In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. However, It can be restricted by time, place and manner in limited circumstances. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.

Florida House Bill H-837, also known as HB-837 or The Academic Freedom Bill of Rights, was a proposed bill in 2005 that would have allowed students to establish lawsuits against their professors and university for perceived intolerance of the student's beliefs. The bill could have also required professors to teach concepts that may have contradicted established facts, if the concept was considered a "serious scholarly" theory.

<span class="mw-page-title-main">Legality of Holocaust denial</span> Laws against Holocaust denial

Sixteen European countries, along with Canada and Israel, have laws against Holocaust denial, the denial of the systematic genocidal killing of approximately six million Jews in Europe by Nazi Germany in the 1930s and 1940s. Many countries also have broader laws that criminalize genocide denial. Among the countries that ban Holocaust denial, Austria, Germany, Hungary, Poland and Romania also ban other elements associated with Nazism, such as the display of Nazi symbols.

No Platform, in the UK, is a form of student boycott where a person or organisation is denied a platform to speak. The British National Union of Students (NUS) established its No Platform policy in April 1974. Like other No Platform policies, it asserts that no proscribed person or organisation should be given a platform to speak, nor should a union officer share a platform with them. The policy traditionally applies to entities that the NUS considers racist or fascist, most notably the British National Party, although the NUS and its liberation campaigns have policies refusing platforms to other people or organisations. The policy does not extend to students' unions who are part of NUS, although similar policies have also been adopted by its constituent unions.

A student bill of rights is a document that outlines beliefs or regulations regarding student rights, typically adopted by a student group, school, or government. These documents can be policies, laws, or statements of belief.

Compelled speech is a transmission of expression required by law. A related legal concept is protected speech. Just as freedom of speech protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which that individual disagrees.

The Amendment to the Act on the Institute of National Remembrance of 2018 is a Polish law that penalizes public speech which attributes responsibility for the Holocaust to Poland or the Polish nation. Article 2a, addressing crimes against "Polish citizens" by "Ukrainian nationalists", also caused controversy. The legislation is part of the historical policy of the Law and Justice party which seeks to present a narrative of ethnic Poles exclusively as victims and heroes. The law met with widespread international criticism, as it was seen as an infringement on freedom of expression and on academic freedom, and as a barrier to open discussion on Polish collaborationism, in what has been described as "the biggest diplomatic crisis in [Poland's] recent history".

<span class="mw-page-title-main">Deplatforming</span> Administrative or political action to deny access to a platform to express opinions

Deplatforming, also known as no-platforming, has been defined as an "attempt to boycott a group or individual through removing the platforms used to share information or ideas", or "the action or practice of preventing someone holding views regarded as unacceptable or offensive from contributing to a forum or debate, especially by blocking them on a particular website."

The working definition of antisemitism is a non-legally binding statement on what antisemitism is which was adopted by the IHRA Plenary in Bucharest, Romania, on 26 May 2016. The statement reads:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

<span class="mw-page-title-main">2021 State Opening of Parliament</span> Speech by Queen Elizabeth II

A State Opening of Parliament took place on 11 May 2021. Queen Elizabeth II opened the second session of the 58th Parliament with the traditional Queen's Speech. The event was significant as it involved many restrictions due to the COVID-19 pandemic in the United Kingdom.

The Online Safety Bill is a proposed Act of the Parliament of the United Kingdom intended to improve internet safety, published as a draft on 12 May 2021. Following the earlier 2019 Online Harms White Paper, the Bill gives the relevant Secretary of State the power, subject to Parliamentary approval, to designate and address a wide range of potentially harmful content, which may include online trolling, illegal pornography and underage access to legal pornography, and some forms of internet fraud.

<span class="mw-page-title-main">Education (No. 2) Act 1986</span> UK education law

The Education Act 1986 is an Act of the Parliament of the United Kingdom that made various legal changes to education in the UK. Though introduced to the House of Commons by his immediate successor Kenneth Baker, the Act was prepared by Margaret Thatcher's second Education Secretary, Keith Joseph, an ideological opponent of "statism" who sought to empower parents against local bureaucrats.

The New Zealand Free Speech Union (FSU) is an organisation that advocates for freedom of speech. It was formed as the Free Speech Coalition in 2018 and relaunched as the Free Speech Union in 2021.

The Reindorf Review was a 2021 article published by the University of Essex and authored by barrister Akua Reindorf surrounding concerns of a suppression of academic freedom due to the de-platforming and blacklisting of academics Jo Phoenix and Rosa Freedman who had expressed "gender critical" views.

References

  1. Smith, Evan (2020). No Platform: A History of Anti-Fascism, Universities and the Limits of Free Speech. Abingdon: Routledge. p. 86. ISBN   9780429847813.
  2. Smith 2020 , p. 205.
  3. Smith 2020 , p. 201.
  4. Yorke, Harry (6 March 2020). "Government looks to strengthen free speech on campus after Oxford's no-platforming of Amber Rudd" . The Daily Telegraph . Retrieved 13 May 2021.
  5. Waugh, Paul (7 March 2020). "Ministers Preparing New Law To 'Protect Freedom Of Speech' At Universities". HuffPost UK . Retrieved 13 May 2021.
  6. "Bristol University: Professor David Miller investigation launched". BBC News. 17 March 2021. Retrieved 14 May 2021.
  7. Weale, Sally (16 February 2021). "Proposed free speech law will make English universities liable for breaches". The Guardian . Retrieved 13 May 2021.
  8. "Higher education: free speech and academic freedom". gov.uk . 16 February 2021. Retrieved 13 May 2012.
  9. "Queen's Speech 2021". gov.uk . 11 May 2021. Retrieved 13 May 2021.
  10. Morgan, John (12 May 2021). "English universities fear legal minefield under free speech bill" . Times Higher Education . Retrieved 13 May 2021.
  11. 1 2 "Universities could face fines over free speech breaches". BBC News. 12 May 2021. Retrieved 13 May 2021.
  12. Higgins, James (15 February 2021). "Free speech champion to tackle 'censoring and silencing' at universities". University Business. Retrieved 13 May 2021.
  13. "Higher Education (Freedom of Speech) Bill" (PDF). parliament.uk. 12 May 2021. Retrieved 13 May 2021.
  14. "Higher Education (Freedom of Speech) Bill". parliament.uk. Retrieved 19 July 2022.
  15. Morris, Sophie (13 May 2021). "No protection for Holocaust deniers under new free speech laws, says Williamson". Evening Standard . Retrieved 13 May 2021.
  16. Merrick, Rob (14 May 2021). "No 10 slaps down universities minister for saying 'Free Speech Bill' will allow Holocaust deniers to speak". The Independent . Retrieved 15 May 2021.
  17. Adams, Richard (12 May 2021). "Campus free speech law in England 'likely to have opposite effect'". The Guardian . Retrieved 13 May 2021.
  18. "Index shares its concerns about the Academic Freedom Bill". Index on Censorship. 11 May 2021. Retrieved 13 May 2021.
  19. Kaufmann, Eric (12 May 2021). "The Freedom of Speech Bill is a huge step towards saving the soul of university education" . The Daily Telegraph . Retrieved 13 May 2021.
  20. Tidman, Zoe (14 May 2021). "Government 'exaggerating threat to freedom of speech to push through new laws', says university union". The Independent . Retrieved 15 May 2021.
  21. 1 2 Langford, Eleanor (15 May 2021). "Academics And Officials Have Questioned The Evidence Behind Gavin Williamson's "Excessive" University Free Speech Bill". PoliticsHome . Retrieved 16 May 2021.
  22. Turner, Camilla (9 December 2020). "Cambridge dons win free speech row as they defeat new 'authoritarian' rules" . The Daily Telegraph . Retrieved 17 May 2021.
  23. "Universities and student unions in England to be required to promote free speech". Out-Law. Pinsent Masons. 14 May 2021. Retrieved 14 May 2021.