New legislation that would make registered higher education providers, including colleges, liable to civil claims under the government’s incoming freedom of speech rules has seemingly been ditched.
The Higher Education (Freedom of Speech) Bill, which has been making its way through parliament since May 2021, had its report stage debate in the House of Lords on Wednesday night.
One intention behind the bill was to allow people to sue a registered higher education provider if they believed the provider has breached its freedom of speech duties.
Those duties, detailed within the bill, will mandate all providers registered with the Office for Students, and their students’ unions, to “take steps” to “secure the freedom of speech” of its staff, students, “members” and visiting speakers.
If any of those individuals felt that a provider had restricted their freedom of speech, the bill had provisions enabling them to take legal action against the provider or students’ union.
However, that provision was removed by an amendment tabled by Lord David Willetts, the former universities minister, who argued that the risk of getting sued could instead reduce freedom of speech in universities.
“We already face a very worrying trend of a decline in the number of external speakers going to universities because people think it is just more trouble, too risky and too dangerous. The risk with these provisions is that they make that trend worse,” he said during the debate.
Willetts’ amendment, opposed by the government, was the only one pushed to a formal vote that night. The government was defeated by 43 votes.
Provisions for legal action were in part introduced to address concerns that cancelled speakers would suffer financial losses, Willetts said in the debate. These concerns, he argued, should be satisfied by provisions elsewhere in the bill allowing HE regulators to impose fines in cases of freedom of speech breaches.
The need for legal redress
Other peers resisted Willetts’ efforts, albeit unsuccessfully. One of them, the non-affiliated peer Baroness Claire Fox, explained why she thought the ability to take legal action was necessary: “The very driver of the bill is that there are real-life, concrete trouble-makers, here and now, in universities, who are targeting closing down free speech and declaring that certain views are verboten… For me, I wanted this law to frighten university authorities – a little bit.”
Much like the bill itself, there was no mention in the debate of the impacts of its provisions on other types of higher education providers. It’s not clear whether the government with re-introduce the clause when the bill returns to the House of Commons.
Further education leaders have criticised the bill for “accidentally” including FE colleges, providers, and their students’ unions in the legislation, which is predominantly, if not exclusively, designed for universities.
Or, is it even needed?
Julian Gravatt, deputy chief executive of the Association of Colleges, said it was good news that the legal threat was gone, and reiterated his frustration that his member colleges are treated in the bill in the same way as universities.
In a blog for Wonkhe, Gravatt wrote: “The debate in Parliament on the need for the legislation has focused mainly on older universities, a few high-profile cases and issues relating to full-time residential degree-level students. Whatever your views on the need for these changes, I challenge you to find a single piece of evidence that it’s needed in colleges.”
Of the 409 institutions on the Office for Students’ register of higher education providers, 285 are not universities. Of those, 135 are further education colleges.
Another of the amendments passed, this time supported by the government, would outlaw providers’ use of non-disclosure agreements with people who have made complaints about bullying, harassment, and sexual misconduct.
This follows high-profile campaigns from MPs and lobbying groups who have accused universities of using non-disclosure agreements to silence victims of sexual abuse and bullying.
The former further and higher education minister, Michelle Donelan, introduced a voluntary pledge for HE providers to commit to end the use of NDAs in sexual harassment cases.
However, the government’s education minister, Baroness Barran, said in the debate that it was “telling” that so few institutions had signed up, and so legislation became necessary.
“While the very existence of NDAs makes it difficult to understand the full extent of the practice, a 2020 BBC investigation found that nearly one-third of universities had used NDAs to resolve student complaints,” she said.
“It has been encouraging to see that many institutions have signed up to a voluntary pledge rejecting the use of NDAs in such circumstances. However, it is telling that many institutions have not done so, despite strong encouragement from the government. I am pleased to support this amendment on behalf of the government.”