New free speech law in effect on 1 August: optimism and a lot to do

(20.01.24) It has emerged that the new provisions in the Higher Education and Research Act 2017 will become law on 1 August 2024. These increase the duties on English universities and other providers to protect free speech, and importantly bring in a scheme for complaints to the Office for Students (OfS) and the right to sue universities for free speech failures in the courts. This is going to dramatically focus institutions’ minds.

The full force of the free speech requirements will also apply to colleges and students’ unions, which is good news.

Further, following recent ground-breaking Equality Act cases, universities have to do the following in order to avoid committing unlawful discrimination and harassment. These cases have reminded us all that employers are liable for discrimination and harassment by their employees unless they have taken all reasonable steps to prevent it.

  • Work to prevent their employees and others from attacking each other for their viewpoints. This particularly applies to online pile-ons.
  • Not allow their disciplinary processes to be used as tools of wrongful free speech suppression.
  • Not officially disapprove of viewpoints on controversial matters, as this can quickly constitute harassment or discrimination against dissenters. For instance, two cases have now held that conflating gender-critical views with transphobia can itself be harassment when stated in the wrong context.
  • This leads on to no enforcing contested viewpoints or agendas (as this will disadvantage dissenters and lead to bullying of them) except of course when actually obliged to by the law. The convener of an online meeting was criticised by the Employment Tribunal in one case for expressing personal views in solidarity with one side of a toxic debate: a good example of the problems taking sides causes. While it appears he was sincere in attempting to prevent inappropriate behaviour (and he was not himself held to have harassed the victim), the Tribunal stated that his taking sides provided “the basis, or opened the door, for the subsequent petition and the comments” which constituted the harassment.

These lead inevitably to a requirement to adopt sufficient institutional neutrality in order to avoid actions which lead to unlawful discrimination and harassment. Taking sides in a polarised debate quickly leads to unlawfulness. As readers will understand, this is groundbreaking.

The law is an ass, but not in these cases.