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Right to Restrict Freedom of Expression?

The Higher Education Bill is set to do more harm than good

Universities are supposed to be environments that protect many fundamental principles, like the right to buy a £20 Pret subscription and convince yourself it’s worth it and the right to dodge homicidal seagulls. But most importantly, universities are supposed to protect the right to freedom of expression. However, in the eyes of the current government, universities are failing to adequately protect this crucial right.

To combat this alleged failure, the government has put forward the Higher Education (Freedom of Speech) Bill, which is currently at the report stage in the House of Commons. This bill is set to introduce several measures to protect freedom of speech. Student unions in particular will be affected, as they will be obligated to set up a code of conduct that ensures freedom of speech is protected for all members, staff and speakers. The bill will also empower the Office for Students (OfS) to review whether student unions are adequately protecting freedom of speech (student unions will be fined if they fail to comply). The bill will also establish a “Director for Freedom of Speech and Academic Freedom” in the OfS who will oversee these new measures. On paper, these new reforms look encouraging and potentially even necessary. However, if left unamended, these proposals will lead to further complications and ultimately fail to protect freedom of speech.

Under the new bill, student unions will be unable to reject visiting speakers based on their views. Last year, Amber Rudd infamously had her invitation to speak at the University of Oxford feminist society rescinded due to her role in the Windrush scandal. Under the new bill, university-affiliated organisations will no longer be able to withdraw invitations in the same manner. Although this could be seen as a potentially positive consequence of the bill (particularly for the Tories), this proposal has several issues. If student unions are unable to reject anyone based on their views, it could result in the platforming of dangerous or hateful ideas, like Holocaust denial. Labour has questioned whether this legislation will result in the “legal protection for hate speech.” The Prime Minister’s office has recently criticised the universities’ minister, Michelle Donelan, for failing to deny that the bill would force student unions to host Holocaust deniers. In terms of the current state of “de-platforming” (defined as excluding someone with harmful views from a discussion), arguably there are not enough cases to warrant the proposals introduced in the bill. OfS statistics show that of 59,574 events that were organised in universities with visiting speakers in 2017–18, only 53 were not approved. Moreover, universities are already obligated to protect freedom of speech under Section 43(1) of the Education (No.2 Act) 1986, section 202 of the Education Reform Act 1988, and the Higher Education Act 2017.

The bill has further been criticised as it may (quite ironically) infringe on freedom of speech. The National Union of Students of the United Kingdom (NUS) has stated that the bill could result in student unions being less likely to invite controversial speakers, due to fear of legal costs in the case of litigation. Moreover, plans to set up a Director for Freedom of Speech and Academic Freedom with the powers to fine universities could result in limiting what is considered appropriate speech on campus to only government-approved speech. The bill also limits the right to protest in a way that is quite worrying. Freedom of speech must include the right to respond to controversial ideas, through means such as protest. Under the current proposals, if a speaker ambiguously suffers “adverse consequences” at the hands of those opposed to their views, such as university students who disagree with their beliefs, they may take legal action against universities. Yet, those opposed to their views are also entitled to the freedom of expression to voice their disapproval and thus universities may find themselves in situations where they are caught between protecting the freedom of expression of visiting speakers and protecting the freedom of expression of disapproving students. However, not all university students will potentially have their freedom of expression curtailed by this bill; Oxford and Cambridge students will not be subject to these new reforms due to their collegiate system. Therefore, arguably the government is creating a two-tiered system in which Oxbridge students will be allowed the full rights of freedom of expression, whereas students from other universities may have these same rights curtailed.

All in all, freedom of speech is a fundamental right that must be observed by all universities. Action to protect it is always necessary. However, the Higher Education Bill paradoxically risks endangering what it seeks to protect the most.

Image: Alamy

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