May 26, 2023
The Higher Education (Freedom of Speech) Act first was first introduced as a bill by Parliament on the 12th of May 2021. It would take almost another three years for the bill to reach royal assent on the 11th of May 2023. The act aims to protect individuals and organisations from being deplatformed by higher education institutions, or harmed in any way, including reputationally.

The Background

With this newly-passed law, if speakers are in any way ‘harmed’, they now have the right to seek compensation through a statutory tort (a fine). Furthermore, they can bring the responsible institution to court if needs must. On the surface, this law might seem like it should have been passed a long time ago – it might even seem a logical inclusion under the overall right to freedom of speech. But, as recent events have shown, the line between freedom of speech and platforming harmful views can be very thin. 

The bill came as a governmental response to universities deplatforming certain speakers based on their views and past behaviour. More specifically, in 2020, a University of Oxford women’s group deplatformed former home secretary Amber Rudd. The student society called Rudd only thirty minutes before she was due to speak in order to withdraw their invitation. Also in 2020, Oxford Professor of Modern History Selina Todd was banned from speaking at a feminist festival, in spite of initially having been invited and approved as a speaker.

These instances, along with others of the same nature, accumulated into concerns about academic freedom versus freedom of speech – which in the UK are not always one and the same.

Encyclopaedia Britannica defines academic freedom as ‘the freedom to teach, study and pursue knowledge without unreasonable interference or restriction […] the justification for academic freedom thus defined lies not in the comfort of teachers or students but in the benefits to society’. Basically, everyone’s entitled to distributing and receiving knowledge provided it is ultimately beneficial to the advancement of society. 

But it has been suggested that certain laws, such as the duties outlined by the government’s anti-terrorism ‘Prevent’ strategy for higher education institutions, have permitted universities to deplatform individuals too liberally. In such cases, academic freedom would be violated – so, then, who gets the say?

Curious about human rights? Check out our list of famous human rights lawyers.


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The Journey

Initially, the bill was not very well-received. The Lords believed that the bill came at a time when the Government should be focusing on other issues in higher education and believed that it would be putting unnecessary pressure on universities. 

The statutory tort represented a major hindrance in the bill’s journey through the House of Lords. In December 2022, it was agreed that complainants would not be able to go to court immediately. Instead, they would need to first exhaust all other complaints schemes at their institution and with the Office for Students. But, in February 2023, the Lords voted for the tort to be abolished altogether. In the end, the tort was there to stay. 

Clause 4 of the bill was also subject to debate. The clause defined who could pursue a civil claim, as well as the necessary steps an individual would need to take in order to pursue one. Specifically, the definition of the ‘loss’ that an individual would need to have suffered at the hands of an institution was considered to be too vague. At the start of May 2023, it was agreed that ‘loss’ would confer a loss of any kind, including harm to an individual’s reputation. It was also agreed that an individual could seek a court injunction (a court order) without first needing to exhaust a complaints scheme.

The Debate

Whilst some believe that the Act will empower student bodies and academics alike, as well as being a move in the right direction regarding overall freedom of speech, others have suggested that the new law will place a new burden on higher education institutions – one which they cannot successfully carry.

The act comes at a time when universities are facing unprecedented financial demands. In a March 2022 report filed by the National Audit Office, it was found that the proportion of higher education providers with an in-year deficit had increased by 27% over four years, from just 5% in 2015/16 to 32% in 2019/20 – and the number is on the rise. 

What these numbers show is that universities have been facing constant challenges when it comes to funding themselves, in spite of tuition costs having also risen. The major reason behind those funding issues is the radically lower number of overseas students joining UK universities post-Brexit. Just in the space of a single year – from 2020 to 2021 – the number of EU students who had enrolled for their first year of university in the UK was halved, going from 66,680 to just 31,000

The Higher Education (Freedom of Speech) Act, it has been argued, could cost universities up to £180,000 per civil claim. Matt Western, the Shadow Minister for Education, has said that those potential financial losses for universities “may detract from the student experience, given the financial pressures across the entire sector”. But then, as Claire Coutinho, the Department of Education Junior Minister argued, so could the lack of exposure to different views and controversial ideas – ones which students would naturally run into in the working world.

Is It Harmful?

Essentially, the debate over whether the Higher Education (Freedom of Speech) Act is harmful can be split into two – is it harmful to universities, and is it harmful to student bodies?

Controversial views and opinions can be accessed by students whether universities de-platform certain speakers or not, so, if acting in accordance with the right to freedom of speech, there really should not have been instances of no-platforming such as those mentioned above. As for the former, it is to be seen whether civil claims under the Act would realistically harm universities financially or not, especially considering lawyers have said that such cases are unlikely to end up being trialled in court.  

Want to know how the English Court hierarchy works? Check out our guide to it here.

By Ariana Serafinceanu 


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