Higher Education (Freedom of Speech) Bill

As 2022 comes to a close, we note that the Higher Education (Freedom of Speech) Bill has completed its journey through the House of Lords.

It will now be for the House of Commons to consider the amendments made to the Bill, including two significant substantive amendments as highlighted below.

No new statutory civil claim

The Government made an amendment to seek to limit the application of the proposed new statutory tort for breach of the main duties on registered higher education providers, their constituent institutions and students’ unions. However, considerable concern was raised in the House of Lords about the possible consequences of this new enforcement measure. Lord Willetts (a former Universities Minister) tabled an amendment to remove the provision and expressed a concern about the threat of litigation hanging over students who organise speaker events. He also argued that the Office for Students has significant regulatory power to act in this area. A vote was taken and the amendment to remove this provision was carried.

New duty not to use Non-Disclosure Agreements

The Government accepted an amendment to include a new obligation on the governing bodies of registered higher education providers to secure that providers do not enter into a non-disclosure agreement with specified categories of people for “relevant complaints”. These are defined as complaints relating to “misconduct” which in turn is defined to mean “sexual abuse, sexual harassment or sexual misconduct” and “bullying and harassment”.

Further amendments were agreed in the House of Lords, for example relating to the definition of freedom of speech. This has now been defined by reference to Article 10 of the European Convention on Human Rights as it has effect in the UK.

Their Lordships also highlighted some key issues for further attention, including:

• the role of students’ unions
• the impact of the proposed legislation on commercial partnerships
• other new and proposed legislation impacting on universities, including the National Security Bill (which now makes it way through the House of Lords). For a summary of the National Security Bill, please see our blogpost for the Association of Heads of University Administration (AHUA). 

We will provide a further update on the final version of the Bill once it has completed the final stages of the Parliamentary process. As Baroness Barran (Parliamentary Under-Secretary of State) commented during the Third Reading of the Bill: “freedom of speech is critical to modern society and is the lifeblood of our higher education sector.”