Last orders for the Freedom of Speech Bill?

Though most recent attention has been focused on the statutory tort, the Higher Education (Freedom of Speech) Bill has seen other notable amendments during its long passage through parliamentary scrutiny.

The Tort situation, for those worrying, is that it was taken out by the Lords, returned in full by the commons, tweaked to match the government’s own earlier proposals by the Lords, and re-tweaked by the government in the Commons. As we now stand it is technically a last resort after other complaints mechanisms are exhausted, but it will be possible to seek an injunction while a complaint is in progress.

It’s incredible to think that we first examined this bill almost exactly two years ago – and that scrutiny has taken us through three Prime Ministers and an astonishing six secretaries of state. It retains a place in the record books as having the longest scrutiny period of any bill on record, having been nearly lost before receiving an extension that I think formally ends on Saturday (noting that bills are usually presented to the crown in monthly batches, this has the upshot that if Royal Assent doesn’t happen this week the bill could be lost).

Indeed, I asked the Lords’ Library and was told:

It would be our cautious interpretation that “two years from the date of its first reading in this House” means proceedings would lapse at midnight on 12 May – i.e. after 23.59 on 11 May – rather than 13 May, but this is not a precedented or tested position.

This would be a superb final twist to the convoluted passage of a bill that never quite knew what it was really for. Certainly, it feels notably ill-equipped to “deal with” (for which read “address government concerns however legitimate you feel that they may be”) recent and current “free speech on campus” stories. But some bills signal intent to the party faithful rather than fix problems – if Rishi Sunak still believes a war on woke wins votes after last week’s elections then mere parliamentary process will not be a barrier.

It’s not in particularly great shape, but it is a little tidier than the way it emerged into the Commons – Jim and I summarised the initial changes at the point it entered the Lords

Those other changes

A fairly fundamental point, but we should be clear that the bill as drafted protected ideas, beliefs, or views – this was later altered to “ideas or opinions”. We also lost the stipulation that it only protected freedom of speech within an academic’s field of expertise, though new language explicitly linked the protections offered by the bill to the definitions made of free speech in the Human Rights Act and thus article 10(1) of the European Convention on Human Rights.

New clauses now address the issue of security costs – these can no longer be expected to be borne by the individual or body organising an event on premises owned by a higher education provider, with a later clause applying this rule to students’ union premises.

Alongside this we see a welcome prohibition of the use of non-disclosure agreements (NDAs) for misconduct including sexual misconduct and other forms of bullying and harassment.

Constituent institutions – basically Oxbridge colleges and similar – are subject to the same overall requirements as providers, although the students’ unions attached to those colleges have been exempted from OfS regulation.

It is now possible to withdraw a complaint made via the Office for Students scheme – originally the OfS would rule on any complaint submitted.

The new section 8 requires OfS to collect and analyse data on overseas funding for both providers and student unions so it can ensure that such funding is not a cause of breaches of free speech duties under the Act.

A note on commencement

Some sections of the bill will become law at the moment the bill receives royal assent:

• Section 6 on the regulation of students’ unions (though further regulations will be made)
• Section 8 on overseas funding (though further regulations will be made)
• Section 11, confirming the extent of the powers to England and Wales only.
• Section 13, confirming the short title of the Act.
• Paragraph 11 of the schedule, which adds definitions to the 2017 Higher Education and Research Act clarifying that “member” does not apply to alumni, giving OfS powers to offer guidance to students’ unions, and refining the 2017 Act’s definition of freedom of speech.

Paragraph 7 of the schedule – which allows the OfS to seek to recover the costs of investigation from providers and SUs where a complaint is wholly or partially upheld – comes into force two months after the bill becomes law, with all other sections requiring a statutory instrument to commence.