University leaders need to “get their head out of the sand” and start assessing now how new free speech legislation in England is going to have a “seismic” impact, as the threat of legal trouble looms.
Although?many aspects of the Higher Education (Freedom of Speech) Bill have not yet come into effect after it received Royal Assent on 11 May, lawyers warned there was no time to waste in assessing whether universities’ policies and practices were in line with the new legislation.
James Murray, managing associate at Mishcon de Reya, who specialises in academic freedom cases, said there was an attitude among some in the sector that the bill “does not change much as it builds on existing duties”.
But, he said, there was a “whole host of new things introduced in terms of both the duties and prohibitions and enforcement mechanisms”, many of which may have “hidden effects”, meaning that this amounted to a “seismic event for universities”.
“Institutions are going to have to do a lot of work to get up to a baseline standard where they are compliant with the law against which they are going to be measured by the new free speech champion [to be appointed by the regulator, the Office for Students].
“There’s a lot to do and the head in the sand attitude that I’ve seen a lot at the higher levels of universities is something that is going to have to right itself pretty quickly as they get to grips with it.”
Mr Murray said although the legislation had been amended so that the use of the “statutory tort” that allows individuals to sue universities using the new law could only be used as a last resort, there would probably still be test cases.
“I would certainly expect that to happen, at least in the first years of the bill as it settles down,” he said. “Nobody quite knows where the boundaries are and what is required.”
“Using crowd-funding, I wouldn’t be surprised if someone could raise fairly large amounts of money pretty quickly to do that sort of case.”
Bryn Harris, chief legal counsel for the Free Speech Union – one of the groups that was heavily involved in backing the legislation?– confirmed that it was prepared to “assist in bringing a case if a member asks for our help; if the merits are good; and if assisting would further the promotion and defence of free speech”.
He said he felt that the first use of the tort was likely to involve someone taking out an injunction to prevent the cancellation of an event or by a student “who has been expelled from a professionally lucrative course such as medicine”.
Smita Jamdar, partner and head of education?at the law firm Shakespeare Martineau, said although the sector has historically been quite “litigation averse” and usually sought to settle any cases outside court, the nature of the legislation made legal action more likely.
Some cases might involve “competing factions”, she explained, and universities could face a complaint from one side as they sought to appease the other. The complicated nature of some of the disputes could also make it inevitable that the courts are called upon to adjudicate, which could be helpful in setting a precedent for how future cases are decided, Ms Jamdar said.
Many of the parties that are likely to be involved in bringing cases are also more likely to want to test the new legislation and “make a point” and therefore could be less amenable to settling, she added.
Mr Murray said the prohibitive costs of bringing cases to the high court will probably mean much of the litigation takes place at employment tribunal. Although tribunals have no jurisdiction to hear claims under the tort, “the fact duties are on the statute books will have a knock-on impact”, he said.
This will make it “much more difficult for employers to dismiss academics where free speech and academic freedom issues are concerned” and the bill’s ban on non-disclosure agreements in harassment cases “removes much of the incentive to settle claims early”.
While the courts could yet play major a role in determining how the legislation will impact universities, the OfS – which was expected to?publish guidance?soon on how its new powers will be used – and the new free speech director, widely tipped to be University of Cambridge professor Arif Ahmed, will be more influential still.?
Mr Harris said the biggest difference the legislation will make will be in “forcing free speech and academic freedom up the risk register for university registrars and bursars, such that it becomes an unavoidable priority”.
Mr Murray said institutions “are going to need to show some real positive intent.” Most will – at the very least – need to review their policies on areas such as harassment to ensure they are free speech compliant, with some needing to overhaul them entirely.
The sector could also see the appointment of individual free speech champions or councils at a university level, he predicted “with significant powers at the top level of governance whose mandate is to produce and monitor free speech”.
Ms Jamdar agreed that areas such as the curriculum, research strategies and all other policies and procedures will need to be reviewed to ensure none of them restrict freedom of speech but the biggest impact may well be on students’ unions – which have not been subject to such laws before – and equality and diversity work.
“My fear is it will become very easy to get rid of a whole load of equality, diversity and inclusion work because that becomes more challenging,” Ms Jamdar said.
“We will lose so much of the progress we are making and so much of the progress that still needs to be made in all those areas. Institutions are going to have to work hard to hold both positions in a lawful way.”
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Print headline: ‘Seismic new bill can’t be ignored’
