To ask the Secretary of State for Education, whether the proposed legislation on free speech in universities (a) recognises the disruptive effects of investigations of students and staff for expressing their personal opinions within the law, (b) provides for the immediate dismissal of vexatious complaints and (c) would have precluded any formal investigation by Abertay University of a student who gave her opinion of what defines a woman, having been asked in a class discussion to do so.
The Higher Education (Freedom of Speech) Bill, introduced on 12 May 2021 in the House of Commons, will protect the fundamental principle of freedom of speech by strengthening existing freedom of speech protections and addressing gaps within the current framework.
This bill, particularly the new duty to promote freedom of speech and academic freedom in higher education (HE), will empower those who run our universities and colleges to publicly defend the right of all of their students, staff members and visiting speakers to speak freely within the law.
In many cases, this should mean that they do not feel a need to investigate where an individual is clearly expressing lawful, if perhaps offensive or controversial, views. Some examples will be less clear-cut, and some investigation will be needed to ascertain the facts. It will remain the responsibility of the provider (or students’ union) to balance their duties when considering the issues, having particular regard to the importance of freedom of speech.
The new Office for Students (OfS) complaints scheme will ensure that students, staff members and visiting speakers have a clear route for making complaints and seeking redress where they believe their freedom of speech or academic freedom has been unlawfully restricted on campus. The OfS will have the ability to dismiss complaints that it considers to be frivolous or vexatious.
The statutory tort will act as a backstop, offering a direct route to the courts for redress for individuals who have suffered loss due to a breach of the freedom of speech duties. In the case of a vexatious claim, the claimant would struggle to make their case if they could not clearly point to any tangible loss suffered as a result of a breach of the freedom of speech duties, and they would also risk having to pay substantial legal costs as a result, both their own and the provider’s or students’ union’s.
The subject matter of the majority of the bill is education, which is a devolved matter. Accordingly, the principal measures in the bill will only apply to England and will not apply to Scottish universities.