Economic Activity of Public Bodies Bill poses grave threat to academic freedom

Government is a natural opponent, not supporter of free speech, and will always seek to curtail it in the name of public order or national security. That is why bodies like CAF are needed to defend academic freedom against all threats to it, from which ever direction they come. 

 Prof. Lord Robert Skidelsky, CAF advisory board 

The government’s Economic Activity of Public Bodies Bill threatens to make certain kinds of speech about university investment decisions illegal.  

The government is currently passing the Economic Activity of Public Bodies Bill. The Bill will ban public institutions, including universities, from divesting from countries on the basis of “political or moral disapproval” – except where this is approved by the government. The Bill furthermore bans university decision-makers from stating that they would consider moral and political factors, were it legal to do so. Baroness Neville-Rolfe, who is involved in sponsoring the Bill, described its purpose as being to ensure that, on matters of foreign policy, the nation speaks “with one voice”. 

The Bill is a threat to freedom of speech in three ways: 

First, the Bill directly prohibits university decision-makers from stating that they would consider moral and political factors when making investment and procurement decisions, were it legal to do so. Section 4, Related Prohibition on statements, assert that:: 

“A person who is subject to section 1 must not publish a statement indicating (in whatever terms)… that the person would intend to act in such a way were it lawful to do so.” 

The legislation makes no distinction between when a person is acting in their official role as a decision-maker and when they are not. CAF has received legal advice that the prohibition will almost certainly apply to decision-makers generally, and not merely when exercising their official roles. It is important that institutions do not take official views on political and moral matters. However, this legislation, potentially due to drafting errors (Public Bill Committee report, page 41), targets individual academics even when they are not speaking in an official capacity. It directly restricts freedom of speech. 

Second, the Bill requires decision-makers not to act in such a way that a “reasonable observer” would think that they had been influenced by moral or political disapproval when making investment decisions (Section 1). Individual decision processes are opaque, and whether or not an individual was “influenced” by moral concerns must always be extremely hard to determine. In light of this, the mere fact that an individual expressed moral or political disapproval of some state will provide a strong case that they were influenced when making a decision about that state. The law thus incentivises academics involved in investment decision-making, and all those who think they might at some point be involved in decision-making, not to express moral or political disapproval of foreign states, knowing that such expressions might later be used as evidence against them. Thus, the Bill is likely to produce a chilling effect on individual academic criticism of foreign states. 

Third, the Bill incentivises universities to prevent academic criticism of foreign states. Suppose, for instance, that a conference on the Chinese Communist Party’s treatment of the Uyghur is scheduled to be held at a university, while the university is making a decision on whether to make investments in China. The university will be incentivised to prevent the conference from going ahead in order to avoid the charge, in the event that they decide not to invest, that this decision was influenced by human rights considerations raised at the conference. 

The incentive for academics and universities to stifle criticism is worsened by the heavy handed, intrusive powers that will be granted to the Office for Students (OfS) to investigate breaches of the act. If the OfS merely suspects that a decision-maker is about to make a prohibited statement, they can require the individual to hand over all information that is “likely to be useful” in determining whether an offence is likely to be carried out (Section 7). One of the UK’s leading human rights barristers, Richard Hermer KC, has published a legal opinion, noting that these measures would hand OfS “more powers than those enjoyed by anti-terrorism police and the security services”.  

Further legal concerns have been raised by Universities UK, a body of 142 UK vice-chancellors and principals. Universities UK stated in its evidence to parliament that the Bill “contradicts duties placed on universities via the Higher Education (Freedom of Speech) Act 2023 to uphold freedom of speech and academic freedom.” It has recommended that section 4 (prohibiting decision-makers from stating that they would take moral and political considerations into account were it legal) is removed “from the face of the Bill”. Even were section 4 wholly removed, the Bill would incentivise academics to self-censor and universities to stifle expression. Both results are consonant with Neville-Rolfe’s intention to make “the nation… speak clearly with one voice”. The Bill is a threat to freedom of speech and academic freedom in UK universities and should be scrapped.