Higher Education (Freedom of Speech) Bill

Written evidence submitted by the Free Churches Group of England and Wales (HEFSB10)

Submission to Committee Stage of Higher Education (Freedom of Speech) Bill

Summary of Paper

The Free Churches Group affirms the importance of freedom of speech and academic freedom. It is averse to practices such as no-platforming which limit free debate. That does not, however, lead the Group to express support for this Bill as presently drafted. We fear unintended consequences, with possible negative impacts on freedom of speech. The Bill also represents further intrusion by government into institutions which need to be autonomous if academic freedom is to be a reality. The Bill thus undermines the cause it seeks to strengthen.


1. The Free Churches Group comprises twenty-six Free Church denominations which seek to promote faithful Christian witness in the public square. There is a particular focus on chaplaincy in Prisons, Healthcare and Education, although much wider issues in these and other fields are considered. Maintaining the spiritual testimony of the Free Churches, upholding their full religious liberty and taking action on matters of principle, where appropriate, are rooted in the Free Churches Group’s mission.

2. The Free Churches hold freedom dear. All individuals are precious in the sight of God, born with rights which should be respected in law and practice, including the right to be free. We see freedom of speech in that context and affirm its importance. We also put freedom in the context of love of neighbour, which brings freedom into relationship with responsibility. It is freedom, not licence, we affirm.

3. We are the heirs of a tradition which was persecuted for its commitments to freedom, including through being excluded from the universities of England from the sixteenth century onwards, with elements of that exclusion continuing until recent times.

4. In response our forebears set up academies, colleges and universities, including University College London, which were open to people of all faiths and none, where many voices could speak freely. Free Church people often worked with others of diverse opinions in creating those institutions.

5. We continue to affirm that universities should be spaces in which different views are heard and debated. That is essential to being a university. It is through debate of different views that truth is sought, and the search for truth is fundamental to being a university. That is a point insufficiently recognised in much recent higher education policy. Freedom of speech within the law is therefore essential in our universities.

6. Our commitments to freedom, including freedom of speech, may raise the expectation that we are supportive of this Bill. With the exception of one clause, we are not. We set out below our criticisms of the Bill, which are largely to do with ambiguous wording, possible unintended consequences and the intrusion of government into what should be autonomous institutions.

Criticisms of the Bill

7. The Bill is not needed. Statistics, including from the Office for Students, suggest there is no significant problem with free speech in universities. Government has been able to produce at best meagre and often anecdotal evidence in support of its claim to the contrary.

8. Academic freedom and freedom of speech are rather different concepts. The latter is a civil right. The former is a very particular form of freedom of speech arising from being an academic. They confer different levels of freedom. Both are important in universities. Both are relevant for this Bill because not all who speak in universities are academics. For the sake of clarity, however, they should not be confused.

9. The Bill is in danger of limiting academic freedom. Unlike the 1988 Education Act, this Bill restricts academic freedom to the ‘field of expertise’ of the academic. That is difficult to define. Is a theologian making a comment on a political situation in the light of her theological knowledge working within her expertise or not? She may decide to keep quiet, just in case. The Bill thereby runs the risk of curtailing what it seeks to advance.

10. We consider that the Bill could further erode university autonomy. One necessary, albeit not sufficient, requirement if academic freedom is to be a reality is institutional autonomy. In various ways, including setting up the Office for Students as a non-arms-length regulator, recent governments have eroded that autonomy. We regard this as a dangerous trend for universities and for the wellbeing of a free and democratic society. The appointment of a Freedom of Speech Champion within the Office for Students, which is subject to directions from the Secretary of State, risks further eroding university autonomy. In many situations to do with freedom of speech, there are complex and conflicting demands to be managed. What is needed is an ability to live with the tension diversity creates. Universities are for the nurturing of wisdom and should be allowed to exercise it as autonomous and professional institutions, with legislation providing but the necessary and clear framework to support that.

11. It is unclear how this Bill sits with other legislative requirements, including those concerned with Prevent and Equalities. We were assured in a meeting with the Bill team that it is not the Bill’s intent to prioritise freedom of speech over other requirements. That is not made clear in the Bill. Indeed, there are contrary indicators to that: both the Bill (in A1 1) and the Explanatory Notes (e.g. paragraph 21) say universities should have ‘particular regard to the importance of freedom of speech’. That ‘particular regard’ may reasonably be taken to mean prioritising freedom of speech. Lack of clarity is unhelpful.

12. The Bill appears not to be consistent with at least one other current Bill, the Online Safety Bill. The latter suggests content which is ‘lawful but harmful’ should be banned, a different provision from that in the Higher Education (Freedom of Speech) Bill, which appears to legislate for universities to allow speech which is lawful and, in the view of some, harmful. Such incoherence is not helpful.

13. The Bill creates a regulatory overlap between the Office of the Independent Adjudicator and the Office for Students. That has the potential to confuse those who are concerned a university may have failed in its duties and wish to bring a case.

14. The Bill may open the door to vexatious litigation against universities. There are pre-existing mechanisms, legislative and regulatory, under which most issues arising around freedom of speech can be dealt with. The extra provision in this Bill is to give more opportunities for redress, but this is problematic. Requiring a university to do ‘what is reasonably practicable’ is vague. Vagueness makes decision-making difficult and decision-challenging easy. It opens the door to possibly vexatious litigation.

Further, it seems the Bill does not require that anyone suing a university has ‘standing’ in connection with an incident. We do note that the Explanatory Notes issued with the Bill say ‘This will enable individuals to seek legal redress for loss they have suffered as a result of breach of these duties’. That, however, is not in the Bill and ‘loss’ is undefined. Thus, the door is opened for campaigning organisations to bring a case against a university under an unhelpfully vague law. That could be expensive and time-consuming for universities, and may make universities risk averse in organising events, to the detriment of the educational process, free speech and the standing of our universities.

15. The Bill imposes a further regulatory burden. Regulation involves expense for all institutions. Our member bodies run theological colleges. They are often small. Those registered with the Office for Students are required to shoulder exactly the same regulatory requirements as larger institutions but with fewer staff and less income. The burden can be difficult to bear. This Bill makes it worse.

16. We affirm Students’ Unions have an important role not only in representing their members’ concerns on a narrow range of educational issues but as centres for debate on a wide range of topics. They thus contribute to the core educational work of universities. We do not support no-platforming of speakers whose speech is within the law, nor do we find it helpful if the Charity Commission seeks to stifle debate outside a narrow understanding of what Students’ Unions members’ interests are. We are concerned about instances of faith groups being silenced, for example being excluded from Freshers’ Fairs. If those groups are operating within the law such silencing should not be permitted. Their voices should be heard. Therefore, one clause we do welcome in the midst of our general raising of concerns about the Bill is 3C in Section A4. However, we also note Students’ Unions are taking steps to address concerns about freedom of speech, which further weakens the case for new legislation.


A Particular Concern about the Use of Premises

17. We are concerned about the drafting of Points (3) and (4) in section A1 of the Bill, repeated later in connection with Students’ Unions. These clauses have to do with the provision or denial of premises and appear to prohibit both the making and the denial of such provision on the basis of ‘ideas, beliefs or views.’

18. Our advice is that these clauses are ripe for a variety of interpretations or misinterpretations, with unhelpful unintended consequences possible and even likely.

19. Clause 3 (a) as explicated by clause 4 is similar to Section 43 of the Education (No.2) Act 1986, but in a new context. The clause says use of premises cannot be denied on the basis of ideas, beliefs etc. It has, as far as we know, led to no problems so far and that may continue to be the case. However, inserting it into this Bill, with its strengthened requirements, lack of clarity, and temperature-raising highlighting of a very few cases as justification for the Bill, may affect its previously benign record.

20. One problem is that it is not clear which groups might claim use of premises under what circumstances under this clause. Even the Government is unclear whether it will mean universities are required to provide premises for holocaust deniers. What seems equally unclear is whether the clause means that groups opposed to views or activities a space is designated for will be allowed to enter that space to express their views. Arguably not to allow such access would be to deny those wishing entry use of premises, and freedom to speak there, on the basis of their views, beliefs etc. Thus the Bill may be taken to provide for a group opposed to religion to enter an Islamic prayer room to exercise their freedom to speak their views on religion, or, indeed to enter a room booked by, say, a Christian Union or a Jewish Society for similar reasons. Does the Bill provide for holocaust deniers to have entry to a room booked by the Jewish society, or can holocaust deniers be denied entry on the basis of their beliefs?

Clearly these are freedom of speech matters, for they concern a group’s ability to speak their views freely and without having access to premises denied on the basis of their views. The point is strengthened when a new clause, additional to that of those in the 1986 Act is considered; a point we turn to now.

21. This Bill includes a new clause, additional to those in the 1986 Act. It is clause 3 (b) of Section A1 of the present Bill. We notice the inclusion of this clause was not mentioned in the Department of Education document ‘Higher education: free speech and academic freedom’ of February 2021. Whilst the Explanatory Notes issued with the Bill do refer to strengthening the 1986 Act (paragraph 1 a) and to the content of the new clause (paragraph 22) they do not make clear this is a new clause not in the 1986 Act, nor do they explain the rationale for its insertion. The Notes specifically refer to similarities with the 1986 Act but not to the differences. The Briefing Paper provided for the Second Reading of the Bill mentions the ‘old’ clause, carried forward from the 1986 Act, in at least two places (sections 2.1 and 6.2) but not the new one.

22. Clause 3 (b) of Section A1, as explicated by Clause (4) refers to the provision of premises by a provider. It requires that ‘the terms on which such premises are provided are not to any extent based on such grounds’ (i.e. the grounds of beliefs, views etc). In relation to the points raised in paragraphs 19 and 20, this would appear to mean that a university cannot provide premises ‘to any extent’ on the basis of views, beliefs etc, presumably meaning that, in the examples, those using the Islamic prayer room for prayer, the Christian Union and the Jewish Society, cannot refuse entry to those holding contrary views on the basis that the room was provided for the original group on the basis of their beliefs etc. They could not do that because the Bill says the provider cannot provide rooms on that basis.

23. Whether the clause means no premises can be provided on the basis of beliefs etc is unclear and needs clarifying. If it does, the consequences for prayer rooms, chapels, chaplaincies, kitchens designed with sensitivity to religious beliefs, amongst other facilities, could be dire. It could also create conflict with other requirements, notably around Equalities and protected characteristics. We cannot imagine it is the intention of Government to stop premises being used in this way. The contribution chaplaincies make to advising universities on religion (including in relation to Prevent) and pastorally, including with students with mental health issues, is well recognised.

24. We believe urgent clarificatory redrafting of the whole section is needed. We ask that the clauses be redrafted, including when applied to Students’ Unions, to ensure clarity and that proper provision is made for individuals and groups motivated by ‘ideas, beliefs, or views’, including protected space for religious and other (including non-religious) activities which presuppose a shared faith basis. Equally, there should be spaces where such views can be debated and challenged.

25. Whilst one way of dealing with some of the points we make in this paper is through the Regulatory Guidance, it is far better that the Bill itself be clarified, with possible unintended consequences addressed, through amendments in Parliament.

September 2021


Prepared 16th September 2021