The Rule of Law

With the Freedom of Speech Bill having now received Royal Assent, Gary Attle, Partner at Mills & Reeve analyses what the new legislation means for HEIs and students.

In his excellent book “The Rule of Law”, the former Senior Law Lord of the UK Supreme Court, the late Lord Bingham, set out a restatement of this foundational legal concept for our liberal democracy: “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”

On 11 May 2023 the House of Lords as the Upper House of Parliament approved the final version of the Higher Education (Freedom of Speech) Bill and the Bill progressed to receive Royal Assent. 

This new legislation will place new statutory duties on the governing bodies of registered higher education providers in England (and their constituent institutions) to: 

a) secure freedom of speech and academic freedom; and,

b) promote the importance of both of these rights in the provision of higher education.

Most students’ unions for the first time will also have a direct statutory duty to secure freedom of speech. 

These statutory duties make it clear that the protection for freedom of speech and academic freedom is to be within the law. 

Careful attention will be required to determine what other laws might limit someone’s right to freedom of speech or their academic freedom in any specific context. As it says in Article 10 (2) of the European Convention on Human Rights, any restriction on freedom of expression must be “prescribed by law” and must also be “necessary in a democratic society” for specified purposes, such as national security, the prevention of disorder or crime or for the protection of the reputation or rights of others. 

There is other existing legislation which should also be considered, including the Education Act 1994 which requires the governing bodies of universities to bring to the attention of all students at least once a year “any restrictions imposed on the activities of [students’] unions by the law relating to charities.” 

Most higher education institutions and students’ unions are charities and it is a cardinal principle of charity law that the activities of a charity must be within its charitable purposes. This is likely to be linked in some way to “the advancement of education” as a recognised charitable purpose. 

In 1972 the High Court was asked to consider in the case of Baldry -v- Feintuck whether it was lawful for the students’ union of a university to pursue a campaign protesting against the then Government’s policy to end the provision of free milk for school children. The judge concluded that this was unlawful as it involved the non-charitable application of charitable funds.

The Charity Commission has helpful guidance (CC9) on the issue of political campaigning and political activities and how far it is permissible for a charity to go in this area. The guidance notes that political campaigns/activities can be legitimate and valuable activities for a charity to undertake, provided that this is in the context of the delivery of its charitable purposes. The charity trustees must also carefully weigh up the possible benefits against the costs and the risks involved. It is also permissible for a charity to support or oppose the policies of political parties, but a charity must not support political parties themselves and must stress their independence from political parties.

The application of the law to any set of facts and circumstances will be important in order to give proper regard to the various rights and duties of all concerned.