A Human Rights Assessment of the Higher Education

A Human Rights Assessment of the Higher Education (Freedom of Speech) Bill Presented by: Mr. Cross Date: November 20, 2022 Section 43(1) of the Education (No 2) Act 1986 - A duty on: • "Every individual and body of persons concerned in the government of" [Universities] to "take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers". • (the "secure" duty) Section 43(2) of the Education (No 2) Act 1986 - This includes the duty: • "To ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with –  (a) the beliefs or views of that individual or of any member of that body; or  (b) the policy or objectives of that body". Section 43(3) of the Education (No 2) Act 1986 - Requires the governing body to "issue and keep up to date" a code of practice setting out procedures to be followed in connection with: • The organization of meetings and other activities on the premises, • The conduct required of members, students and employees in connection with such meetings and activities, and • Dealing with such other matters as the governing body considers appropriate. - (the "code" duty) Section 43(8) of the Education (No 2) Act 1986 - "Where a students' union occupies premises which are not premises of the establishment in connection with which the union is constituted, any reference in this section to the premises of the establishment shall be taken to include a reference to the premises occupied by the students' union". Tension (1) - Between a desire to prohibit undesirable speech and the desire to prohibit unlawful speech - E.g. • "Academic freedom is no excuse for hate incidents"; • A hate incident is "an incident which is perceived by the victim or any other person, to be motivated by prejudice, based on a person's protected characteristics (i.e. their sex, race, sexual orientation and so on)". Tension (2) - Between competing interests in determining whether speech is lawful speech - Under section 26 of the Equality Act 2010, a person (A) harasses another (B) if• (a) A engages in unwanted conduct related to a relevant protected characteristic, and • (b) the conduct has the purpose or effect of (i) violating B's dignity, or  (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. - But NB subs (4): in deciding whether conduct is harassment because of its effect, there must be taken into account, in addition to B's perception, both: • "The other circumstances of the case" and • "Whether it is reasonable for the conduct to have that effect". Tension (3) - Between the protections of the law and the objectives of valuable anti-discrimination social movements - Academic freedom, so far as relating to academic staff at a particular University, means freedom: • "Within the law and within their field of expertise –  (a) to question and test received wisdom, and  (b) to put forward new ideas and controversial or unpopular opinions, • Without placing themselves at risk of being adversely affected in the loss of their jobs or privileges, or the likelihood of their securing promotion or different jobs at the provider being reduced". - New duty on governing bodies: • to promote • "the importance of freedom of speech within the law, and academic freedom for academic staff". - Enforcement against governing bodies: • 1. OFS good practice advice / guidance • 2. OFS complaints scheme ("secure" duty) • 3. OFS registration conditions ("secure" and "Code" duties) • 4. A new statutory tort:  A person may bring civil proceedings against [a University or constituent institution, or a student union], in respect of a breach of its "secure" duties. - Student unions: • "Secure" duty on SUs • Code" duty on SUs • OFS complaints scheme (“secure" duty) • Liability under the new tort ("secure" duty) • Fines by the OFS ("secure" and "Code" duties)