Higher Education (Freedom of Speech) Bill

Supplementary written evidence submitted by Smita Jamdar, Partner & Head of Education, Shakespeare Martineau (HEFSB19)

During the provision of my oral evidence to the Public Bill Committee on Tuesday, I indicated that I would give some further thought to specific issues raised by Committee members.  I now attach those further thoughts below.

Reasonably practicable vs reasonably necessary.

The duty in the Bill is to take such steps as are reasonably practicable to ensure freedom of speech (having particular regard to the importance of freedom of speech).

Reasonably practicable is the same formulation used in the context of health and safety law, and there is no reason why a court would not interpret the phrase in the same way in the proposed legislation. "Practicable" simply means what is practically possible.

In the health and safety context, the Court of Appeal has held that in determining whether a particular step is reasonably practicable "a computation must be made…in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them." [unnecessary words omitted and emphasis added] (Edwards v. National Coal Board, [1949] 1 All ER 743 )

The use of the phrase "gross disproportion" implies that the weight is heavily in favour of implementing measures to avert relevant risks. As accompanying HSE guidance elaborates: "to avoid having to make this sacrifice [i.e to implement a particular measure], the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices." ( Risk management: Expert guidance - ALARP at a glance (hse.gov.uk))

In simpler terms, "r easonably practicable " has been interpreted to mean that if steps to discharge the duty are possible , they must be taken unless they are grossly disproportionate in terms of resources, cost etc,

In the case of the Bill, this duty is further strengthened by the statutory recognition of the importance of free speech.

The ph rase "reasonably necessary" could be considered to be a narrowing of the obligation because:

· What is necessary must always be practicable, but what is practicable may and almost always will go beyond what is necessary;

· The caveat of what is "reasonably necessary" narrows the duty still further.

However, an absolute duty to do what is necessary would be extremely onerous, as it could entail wholly disproportionate university resources to be expended to ensure free speech in any given circumstance.

It is our view, therefore, that reasonably practicable is a broader requirement than to do what is reasonably necessary and should be retained. In order to ensure that the requirement to do what is reasonably practicable is clearly understood, a definition could be included in the legislation or guidance on it could be issued.

Defamation

Having checked the position, as indicated in the committee hearing, section 17 of the Higher Education Act 2004 confers a similar degree of privilege on the proceedings and reports of the Office of the Independent Adjudicator for Higher Education.

The OfS is, however, under a duty to comply with data-protection legislation. While defamation proceedings cannot be brought within that framework, the OfS will nevertheless have to ensure that any use of personal data (including publication) has a lawful basis, is fair and proportionate. Individuals therefore may have some right of redress in that context.

9 September 2021