In July, the Secretary of State for Education, Bridget Phillipson, issued a statement to the House of Commons saying she intended to stop commencement of the Higher Education (Freedom of Speech) Act “in order to consider options, including its repeal”.
It was fitting that the Labour Government would declare war on free speech in a written statement, posted quietly to the House of Commons website on a Friday – a good day for bad news, as any journalist will tell you – and unaccompanied by any opportunity for parliamentary debate.
This was a very carefully crafted Act designed to secure academic freedom and address the free speech crisis in our universities. Having received cross-party support during the last Parliament, its most important clauses were due to come into force on 1st August.
Now, because Rishi Sunak called an election before the Act has been fully implemented, this Government has seized its chance to derail it.
If the Labour Government’s decision to effectively “kill off” this law is allowed to stand, it will become virtually impossible for students and academics to challenge radical progressive ideology on campus.
The Free Speech Act would have imposed a legal duty on universities in England to uphold and promote free speech and it would have extended that duty to student unions. It would have also secured the freedom of academic staff to question and test received wisdom and put forward new ideas and controversial opinions.
The new Act was not the first law to tackle the issue of free speech in English universities. In fact, its legislative predecessor, the Education (No 2) Act 1986, already imposed a legal duty on universities to protect free speech. Unfortunately, this mandate proved to be toothless because the only way of getting universities to comply was to bring a judicial review in the High Court, a lengthy, risky and expensive procedure.
The Free Speech Act remedied this by creating two vital enforcement mechanisms to ensure that universities discharged their free speech obligations.
The first was a free-to-use complaints scheme to be overseen by the Director of Freedom of Speech and Academic Freedom (the ‘free speech tsar’), which is a new position at the Office for Students created by this Act. The complaints scheme would provide an easy route for students, academics and visiting speakers to seek redress.
The second enforcement mechanism was the creation of a new statutory tort, whereby students, academics and visiting speakers could sue universities in the County Court if their speech rights had been breached, although only after they’d exhausted the free-to-use process.
Ms Phillipson’s case for torpedoing the Act was based on four interrelated claims, all of which are highly dubious.
CLAIM 1: THE FREE SPEECH CRISIS IS A DISTRACTION
Ms Phillipson’s decision to halt the Free Speech Act appears to stem from her belief, as expressed by her during the third reading of the Bill in the House of Commons, that the previous government’s focus on free speech in universities was a “distraction” and ministers should not “pick fights with students”. Four days before she paused the Act, she told the BBC that “the culture wars on university campuses end here”.
However, the free speech crisis is real. Consider the “banned list” compiled by Academics for Academic Freedom and the Committee for Academic Freedom’s “threats to freedom”, monitor, both of which document hundreds of instances where academics and students have been hounded, censured, silenced or even sacked for expressing perfectly legal views.
In addition, there is extensive survey evidence showing that students and academics are self-censoring on a massive scale. A survey commissioned by the University College Union found that 35.5% of academics in the UK are self-censoring, compared to an EU average of 19.1%.
That finding was confirmed by a survey commissioned by the Legatum Institute, which additionally revealed that 70% of conservative academic are self-censoring.
Finally, a survey by the Higher Education Policy Institute found that 38% of students believe “universities are becoming less tolerant of a wide range of viewpoints”.
Further proxy indicators of the problem include: event cancellations; internal regulation of lawful speech; ideologically loaded training; universities distorting the curriculum on ideological grounds; institutions taking political sides; insisting university employees demonstrate their commitment to ‘equity’; the physical intimidation of academic staff; and universities investigating staff and students for lawful expression of views.
CLAIM 2: THE ACT WOULD BE BURDENSOME FOR UNIVERSITIES
Ms Phillipson claimed in her written statement setting out her decision to stop the Act that it would be “burdensome”.
However, according to the Department for Education’s impact assessment, the cost of English universities complying with the Act was estimated to be just £4.7 million a year. To put this in perspective, according to a recent House of Commons Library research briefing, English universities spent £550 million on Access and Participation Plans in 2020-21, a figure expected to rise to £565 million in 2024-25.
It is also worth noting that a recent investigation by the campaign group Alumni for Free Speech found that universities spend over 200 times as much on Equality, Diversity and Inclusion initiatives as they do on protecting free speech.
Furthermore, universities have been spending millions of pounds on other burdensome regulations which have nothing to do with free speech or academic freedom. The regulatory burdens of this new Act pale in comparison.
CLAIM 3: THE ACT WOULD LEAD TO COSTLY LEGAL ACTION
The Secretary of State also said she was “concerned that [the Act] will expose higher education providers to costly legal action”.
But the truth is that the proposed OfS complaints scheme would have been free to use and was intended as an alternative to costly court action.
It’s true that the Free Speech Act provided an alternative remedy in the County Court, but the Act stipulated that a complainant had to exhaust the OfS route before bringing a legal claim and it’s unlikely a court would uphold a complaint that the OfS hadn’t.
In the absence of the complaints scheme that would have been established by the Act, the courts will continue to be the battle field in which such disputes are resolved, ultimately costing universities far more than the alternative proposed by the Act.
CLAIM 4: THE ACT WOULD BE DAMAGING FOR VULNERABLE GROUPS
Another reason Ms Phillipson has given for suspending the Act is that it would be “damaging to the welfare of students”, adding that “Jewish groups” in particular were worried that “fear of sanction will push [universities] to overlook the safety and well-being of minorities”. In a briefing to the Times, she also claimed that the new Act would have made it harder for universities to deny a platform to Holocaust deniers.
This is not true. The definition of “freedom of speech” in the Act is that set out in Article 10(1) of the European Convention on Human Rights (ECHR) and the European Court of Human Rights has consistently ruled that Article 17 of the ECHR excludes Holocaust denial from the purview of Article 10.
Additionally, the Act only protects free speech “within the law”. English law already provides strong protections against harassment and hate speech, e.g. the Crime and Disorder Act 1998, s.145-146 of the Criminal Justice Act 2003, Parts 3 and 3A of the Public Order Act 1986, s.1 of the Malicious Communications Act 1998, s.127 of the Communications Act 2003, s. 26 of the Equality Act 2010.
In fact, the new Act would have protected Jewish students and Jewish university societies from attempts by student unions and radical activists to sabotage their efforts to arrange meetings and invite external speakers on to campus. Indeed, a clause in the new Act would have made it much more difficult for universities to cite “security costs” as a reason to disinvite controversial speakers – an excuse previously used by City University for insisting a Jewish society rescind its invitation to Mark Regev, then Israel’s ambassador to the UK.
TAKE ACTION
At the Free Speech Union, we’ve sent a pre-action protocol letter to the Education Secretary, threatening a judicial review if she doesn’t reverse her decision.
However, to increase our chances of rescuing this vital piece of legislation, we also need to keep up the pressure on MPs. Please use our campaigning tool to write to your local MP, urging them to ask Ms Phillipson to think again.
Completing the form is a simple, fast process that can have a significant impact. We’ve even provided a template to help, but feel free to personalise it. Your voice matters and it’s vital that you make it heard.
