Robert Lewis, Partner, Mishcon de Reya
Welcome to our latest episode of Education in a Digital Age. In this episode, we’re following up our recent live panel event on Academic Freedom, with a chat with James Murray, Senior Associate at Taylor Vinters, on the Higher Education (Freedom of Speech) Bill currently progressing through Parliament. What’s the status of the bill? What will it mean for higher education institutions, academics and students? Is there really a problem with the stifling of free speech on campus? And if so, is this legislation the answer? Hello and welcome to the Mishcon Academy Digital Sessions podcast and to this, the third episode in a new series of Education in a Digital Age. I’m Robert Lewis, Partner and Head of Education and I’m joined today, as I say, by James Murray of Taylor Vinters. Hi James.
James Murray, Senior Associate, Taylor Vinters
Hi Rob, thanks for having me.
Robert Lewis, Partner, Mishcon de Reya
This bill. What does the bill do and where is it currently up to in the parliamentary process?
James Murray, Senior Associate, Taylor Vinters
So, the bill does a number of things. Primarily, it expands upon the existing duty under Section 43 of the Education Act. So that is a duty on providers to take reasonably practicable steps to secure free speech on campus. It builds upon that by adding a definition of academic freedom for academic staff and applicants, as well as a duty on the provider to take steps to ensure that academics don’t lose out on jobs or other opportunities for exercising that freedom. It also modifies how the core duty has been understood to work so, for example, providers can no longer impose a condition of security costs on those holding events, unless exceptional circumstances apply. It also adds a totally new duty, namely providers must actively promote free speech and academic freedom. On top of that, the bill introduces a statutory tort by which providers might be sued for failing to comply with the court duty and that’s introduced for the first time. It also creates regulatory powers for the Office of Students, including the so-called “free speech champion” who will provide over a new free to use complaints scheme in relation to free speech issues. As far as students unions are concerned, they will also be directly subject to the core duty for the first time, which will involve them, just as providers have always had to do, preparing a code relating to the hosting of speaking events on campus and the bill will empower the OfS to regulate them directly for the first time, including by giving it the power to impose fines if it decides to do so. So, overall, the bill will have a significant impact on how free speech issues are monitored and enforced on campus.
Robert Lewis, Partner, Mishcon de Reya
And when do we expect it to become law?
James Murray, Senior Associate, Taylor Vinters
So, in terms of where it’s at in the parliamentary process, it’s now progressed to the House of Lords and the second reading is on the 28th of June. I’m expecting there to be a number of amendments in the law, so I think it’s unlikely it will receive Royal Assent by the end of this parliamentary session but it is likely to get Royal Assent before the end of the year.
Robert Lewis, Partner, Mishcon de Reya
Okay. Interesting. Is there really a problem that needs addressing here or is this just another this Government culture war talking point?
James Murray, Senior Associate, Taylor Vinters
So that’s a really good question and it’s one which has been very hotly contested by commentators and it’s been particularly hotly contested since the bill was first introduced last year. Now, I can say anecdotally from my own practice that I am seeing clients, both individual academics and institutions, increasingly asking me about these issues over the past few years. I’d also note that the academic work in this area as well so, in particular Terence Karran, a professor at Lincoln University, he’s done a number of comparative studies which have shown that the UK actually has the weakest legislative protection for academic freedom in all of the EU countries and he’s also conducted a survey for the University and College Union which showed that in practice, academics feel that their academic freedom is more under threat than European colleagues. Now, that’s a study whose results have been replicated by other studies, more recently by professors such as Eric Kaufmann and Matt Goodwin.
Robert Lewis, Partner, Mishcon de Reya
Okay. And what do you think the merits and deficiencies are of this bill?
James Murray, Senior Associate, Taylor Vinters
So, if we consider that academic work that I mentioned and reflect upon the finding that the UK is reported to have the weakest legislative protection for academic freedom, I think the fact that something is being done at all can be taken as a positive in itself. In terms of how the current bill really makes a meaningful change to the existing law, I think the new enforcement mechanism is a real innovation here. So, currently, anyone who wants to complain about a provider’s failings under the existing duties would need to bring a judicial review. Now that of course is quite complex, expensive and really unlikely to result in any compensation for the individual. The fact that there are so few cases under the existing duty is really testament to how unattractive that option is. Now however, the new statutory tort will mean that individuals can sue for compensation in the courts for any loss which provider’s failure has caused them. Additionally, if they don’t actually want to go so far as issuing proceedings, there will be this free to use complaints scheme run by the OfS. That will be open to a wide range of complainants for any free speech related complaints. That scheme is very closely braced on the current student complaints scheme and generally speaking, there is a good record of universities complying with recommendations made under that, although of course technically they can’t be compelled to comply.
Robert Lewis, Partner, Mishcon de Reya
And the deficiencies?
James Murray, Senior Associate, Taylor Vinters
So, one of the major deficiencies of the bill which has been very widely criticised is the bill’s definition of academic freedom. So, when first introduced, the bill actually limited to speech which was within an academic’s field of expertise. The issue with this is that it did not accord with internationally recognised definitions of academic freedom so for example the 1997 UNESCO recommendation on teaching personnel. The Government has now fixed that in an amendment but the definition itself is still lacking so, for example, to bring it in line with international standards, the definition should really clarify that academic freedom extends to critiquing things like ones institution, its governance, affiliations, research, curricular etc. Another major deficiency is the lack of jurisdiction for the employment tribunal. So, one of the Government’s express aims in introducing the bill was that it would give better protection against dismissal for academics exercising their academic freedom. However, the statutory tort here must be relied upon in the courts and that has both practical and legal issues. So, on a practical basis, court action is much more expensive, both to begin and pursue than a claim in the tribunal. The tribunal is of course intended to be much more straightforward process that individuals could do themselves it they wanted. Furthermore in the courts, a claimant faces potentially crippling consequences of paying the other side’s costs if they lose, something which generally they’d be protected from in the tribunal. On the legal side of things, a court also can’t grant re-employment orders, like a tribunal can, and there is a real risk, on the current wording of the bill at least, that the court will not accept jurisdiction of dismissal related losses and that’s because there’s an existing line of cases which says courts won’t usurp the tribunal’s role without clear wording in legislation and that’s something which the current bill lacks. On top of that, the complaint scheme will be no use really to dismiss the academics as it won’t be able to determine legal breaches as a court can and won’t be able to make binding legal recommendations. In any event, any sensible academic would issue proceedings in the tribunal within three months, which is far before any complaint scheme can determine their complaints and that in itself would pause the complaints scheme process.
Robert Lewis, Partner, Mishcon de Reya
So does that mean you could, in theory, have an academic dismissed because of something which could potentially breach this bill with the university’s obligations under this bill? They wouldn’t be able to rely on that in the employment tribunal as a reason for say being unfairly dismissed directly and also if the courts were to hear a claim under the bill, the courts might say we don’t have jurisdiction over this because it’s related to the dismissal.
James Murray, Senior Associate, Taylor Vinters
Yes, I think that’s precisely the problem. So, as it stands, the tribunal may take the bill into account in certain limited circumstances so, if there’s an unfair dismissal claim, they may take into account whether it was kind of reasonable for the employer to dismiss, bearing in mind this new duty. It might also take it into account when determining a harassment claim for example but generally, what we understood the Government’s intention was, was for any academic who is dismissed in breach of this duty, to be able to claim for those losses and on the current wording, I think that would be very, very difficult. The bill reads more like a procedural duty than it does an absolute prohibition on dismissal and so it’s that kind of lacuna in the provisions which means, I think, the courts might not accept jurisdiction.
Robert Lewis, Partner, Mishcon de Reya
And are there any steps to address some of these deficiencies?
James Murray, Senior Associate, Taylor Vinters
The main thing that could be done is for amendments to be put forward in the Lords as the bill goes through and I understand that certain amendments will be put forward to try and address that. So, the simplest amendment you could make would just be to give the tribunal jurisdiction but you might also want to make more significant amendments such as making it automatically unfair if an academic is dismissed contrary to the duty in the bill. Now I think that would align things much more closely with what the Government intended in introducing this bill in the first place.
Robert Lewis, Partner, Mishcon de Reya
Okay. That’s very interesting. And we recently also had an announcement from the Government which seems very relevant to this, which is the new Bill of Rights. What impact is that new Bill of Rights going to have on the question of academic free speech?
James Murray, Senior Associate, Taylor Vinters
That’s a really good question. The Bill of Rights has only been with us for a short time now but my initial thoughts are that the new Bill of Rights could potentially have a very significant impact here, particularly because it repeals the Human Rights Act. That’s really important in these academic freedom cases because they case law of Strasbourg is really crucial for protection of academic free expression. It’s much more detailed and expansive on the strength and scope of those rights than the UK case law is, so it’s important to be able to have close reference to it in these sorts of cases. In particular, what it articulates is a very high level of protection under Article 10 of the convention for academic free expression so, in terms of what the Bill of Rights does, it removes Section 2 of the Human Rights Act which requires courts to take into account Strasbourg case law and Section 3 which requires courts to interpret new UK legislation in a way which is, as far as possible, compatible with the convention. So the new Bill of Rights doesn’t have equivalent provisions. It doesn’t expressly stop the courts taking into account Strasbourg case law but it does say that generally they shouldn’t exceed it and it also gives them the right to depart from it when they consider that appropriate. So, overall I’d say we’re in a much less certain position. I think the key question would be whether the courts would depart from the very high watermark of Strasbourg’s protection for academic freedom when interpreting this new bill in due course. My initial impression, and perhaps this is overly optimistic, is hopefully not, particularly because what the Bill of Rights set about free expression in that it requires courts to give great weight to protecting it and as far as Article 10 is concerned, this is the one area where the UK courts are actually allowed to surpass the level of protection that Strasbourg case law offers rights.
Robert Lewis, Partner, Mishcon de Reya
Another interesting point that was raised at our recent panel event by one of our panellists was about the Online Safety Bill, which is also going through Parliament at the moment and kind of raising a philosophical inconsistency between the Government’s position on online content where they’re seeking to kind of limit where people can be exposed to what they’re defining as harmful content, while at the same time championing free speech in university. Kind of philosophically, are these positions in any way consistent?
James Murray, Senior Associate, Taylor Vinters
Look, I can really see the concern there. I’m going to try and be as generous as I possibly can be to the Government in answering this. I mean, to try and get some sort of consistency there, they may point to the special status of the campus environment and say this is a place which really requires robust and open enquiry and that necessitates a greater level of protection for free speech than other areas such as online. Perhaps they might also point the to the special status of academic freedom, which to be fair to them is recognised by the Council of Europe and the Strasbourg courts as something which is deserving of enhanced levels of protection above other types of speech, however, I think that presupposes a bright line can be drawn between the online sphere and the campus, which is something which is increasingly difficult to maintain in the modern age. So, as I say, I’ve got a lot of sympathy for the inconsistencies in the Government’s approach there.
Robert Lewis, Partner, Mishcon de Reya
Well I mean some of the cases I’ve been involved recently seem to always involve academics and what they have actually done and said online because that’s often where the record trail is.
James Murray, Senior Associate, Taylor Vinters
I think so, I think that’s definitely right and I would concur with that, it’s my experience as well. You know, most of the time it’s comments that academics have made on Twitter that become subjective complaints so, yes, maintaining that line is going to be very difficult.
Robert Lewis, Partner, Mishcon de Reya
So do you think that higher education institutions could find themselves court in the middle between these two new pieces of legislation, you know where they have an academic who’s done something which would be deemed harmful under the Online Safety Bill but also would protect them under the Higher Education (Freedom of Speech) Bill?
James Murray, Senior Associate, Taylor Vinters
I think that’s a really good question and I think in practice that that will be a real challenge. I mean, on the face of the bills, the Online Safety Bill obviously imposes duties on platforms rather than universities so there wouldn’t necessarily be a direct conflict on the face of the bills and if an online provider removed academic’s content, although that would of course potentially be an issue for academic freedom generally, wouldn’t necessarily be a breach for the university, however, as you say and as you are finding in your practice, as am I, it’s very common for universities, as with other employers, to have social media policies which proport to govern academic’s conduct online. So, universities would need to be really careful in introducing mandates against conduct which are considered to be lawful but harmful under the Online Safety Bill, as such speech would be by definition within the law for the purposes of this Free Speech Bill. That said, we should remember that universities under this bill, only have to take reasonably practicable steps to secure free speech. So that part of the bill could be a doorway to restricting lawful but harmful speech under some circumstances under the Online Safety Bill. So that balancing exercise is going to be quite fraught with difficulty, particularly considering the new enforcement mechanisms in place and something they certainly need to take advice on in order to understand where to draw the line in those sorts of policies.
Robert Lewis, Partner, Mishcon de Reya
Well for now, let’s wrap that up there. I’d like to say thanks so much to James Murray for joining me for this Mishcon Academy Digital Sessions podcast. I’m Robert Lewis and do look out for the next episode in the series. The Digital Sessions are a series of online events, videos and podcasts, all available at Mishcon.com and if you have any questions you would like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.
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