The Government is killing its own academic freedom bill

Changes to the Higher Education Bill would make it much harder for university scholars to enforce their rights

Academic freedom is under threat. Almost every week, newspapers carry stories of university authorities attempting to prevent staff from engaging in the free expression of ideas. Sometimes, they succeed. Other times, scholars resist them. Muscular legislative intervention in support of scholastic freedom has thus become essential to give academics certainty.

At present, hope exists in the form of the Higher Education (Freedom of Speech) Bill. Awaiting consideration by the Lords, it sailed through the Commons earlier this year. If it made it onto the statute book, it would shift the balance of power in higher education institutions away from the censorious and towards the tolerant. Unfortunately, something odd is afoot. This week, the Government released a package of proposed amendments, the practical effect of which would be to diminish the force of the rights and obligations that will otherwise be established.

Everything turns on enforcement: one’s rights are only as effective as the remedies available when they are violated. At present, the duties designed to protect academic freedom that the bill imposes will be underpinned by Clause 4. It provides that “a person may bring civil proceedings against [a university or college] in respect of a breach … of any of its … duties”. It creates what lawyers call a tort. Why is this important? It would hit universities where it hurts: the pocket. An institution guilty of violating academic freedom would have to fork out cash to the individual whose rights it has infringed. Indeed, the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.

The Government’s new amendments will undermine these functions. One involves restricting the scope of Clause 4 so as to allow claims only when the victim of a violation has sustained “loss”. Yet if this means pecuniary loss, few violations will be actionable, no matter how blatant. Being prevented from speaking rarely costs an academic money. If by loss the Government means non-pecuniary loss, we are into another set of problems. There are old slander cases which indicate that harm so trivial as losing out on a dinner invitation could constitute actionable damage. But why make protection contingent on features like whether or not a cancelled event had a speakers’ dinner tacked on to it? The value of academic freedom is not something that can or should be priced up. It is a good in and of itself. Lecturers are more than the sum of their book contracts.

A second concerning amendment would ensure that a person can only bring private proceedings if they have previously “brought a complaint relating to the same subject matter … under a relevant complaints scheme”, ie, to the Office for Students. This is a worry for two reasons.

First, in many cases, the best remedy for a violation will be an injunction: a court order commanding a university to stop its interference with an academic’s work. Yet it is possible that a court might read an amended version of Clause 4 as preventing the issuing of an injunction without prior recourse to a complaints scheme. If so, the value of an injunction – to prevent imminent and otherwise unstoppable violations of rights – would be rendered obsolete in cases where they are needed most: those involving last-minute cancellations.

A second objection relates to time. In the UK, national-level administrative procedures are sclerotic and vulnerable to political interference. What is more, a political appointee will oversee the Office for Students’ complaints process. Consequently, an academic whose freedom has been violated will have to wait months if not years to hear back from a bureaucratic complaints process before being able to bring a meaningful claim against their university. Justice delayed, of course, is justice denied.