Labour’s surreptitious retreat on legislation intended to safeguard free speech at universities has dismayed even its natural allies, according to a strong leader in the Times. Here’s an extract:
When she became education secretary in July, one of the first decisions taken by Bridget Phillipson was to quietly mothball the Higher Education (Freedom of Speech) Act. A legacy of the Conservative government, it was a sensible piece of legislation designed to make universities do little more than comply with their existing duties to protect free speech and open academic inquiry on campuses. Instead of regarding such liberal norms as prerequisites of healthy academic life, however, Ms Phillipson dismissed the legislation as “burdensome” and paused its implementation with a view to considering the statute’s repeal.
That Ms Phillipson delivered her original ministerial fiat by the surreptitious means of a written statement in the House of Commons, and without seeking parliament’s agreement, suggests that she assumed she could get away with scrapping the law without too much reaction. That assumption was badly misjudged. In recent months, more than 600 academics have signed an open letter calling on the Labour government to rethink the decision. Among them are some of the UK’s most eminent intellectuals and hundreds of lecturers routinely acquainted with the insidious threats to free speech at universities which the new law was designed to tackle. They should be listened to.
At the weekend, those academics were joined by a supporting chorus of cultural figures — among them Stephen Fry, Ian McEwan, the historian Tom Holland and the former poet laureate Sir Andrew Motion, all of whom echoed concerns that the government was failing to safeguard “humane and liberal values” and oppose “cancel culture” within Britain’s universities. This opposition ought to alarm Ms Phillipson. It is a reminder that support for basic principles of academic freedom cuts across partisan political divides. In complacently abandoning the Higher Education Act, the government risks alienating natural allies.
None of the government’s retrospective attempts to justify its ill-motivated junking of the bill survives scrutiny. Particularly disingenuous is Ms Philipson’s suggestion that the new law would have exposed students to increased harm and “hate speech”. In fact, the measures in the paused legislation did nothing to protect unlawful speech; defamatory and harassing expressions would have remained so. The law’s main effect would simply have been to introduce an enforcement mechanism, overseen by the Office for Students, by which universities would be held responsible for failing to take reasonable steps to uphold the rights of students, staff and visiting speakers.
Jacqui Smith, a former home secretary and now an education minister, last month conceded that the government must find a robust legislative solution to upholding liberal norms in higher education. She must urge the secretary of state to take a similarly hard-headed view.
One route to a compromise may be to modify the tort provision included in the paused Higher Education Act, which the government has argued might have exposed universities to unacceptably high costs in circumstances when they are sued for failing to comply with their duties. Given the strained budgets within the sector, less financially punitive methods of enforcement could be devised. What matters most is that universities, under the support of law, remain places where inquiry remains free and unfettered.
Worth reading in full.
It’s a powerful leader, but the FSU disagrees with the Times when it suggests that the government might drop the statutory tort as “a compromise position”.
In technical, legislative terms, Clause 4 of the Act as passed creates a new statutory tort that allows civil claims to be brought by aggrieved parties (i.e., staff and students) in the County Court against Higher Education Providers and Student Unions if they breach their new free speech obligations.
Without Clause 4, the Act will make no more difference that the Education (No.2) Act 1986, which also imposes a legal duty on universities to uphold free speech, but has never been taken seriously by the sector because it has no accompanying enforcement mechanism.
In the FSU’s view, it is the statutory tort created by Clause 4 which gives the legislation’s new free speech duties teeth. We get between 30-50 cries for help a week, many of them from students and academics who got into trouble simply for exercising their lawful right to free speech on campus. Only if the Act is commenced with the statutory tort remedy in place will the vast majority of students and academics who find themselves in a similar situation in the future be in a stronger position.
To be sure, one of Bridget Phillipson’s arguments for stopping commencement of the Act is that enabling academics and students to sue for breaching their freedom of speech rights in this way will be overly burdensome for universities, increasing the likelihood of frivolous actions.
But criticisms of this kind seem oblivious to both the legal architecture created by the legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.
The first port of call under the Act as passed for anyone who believes their right to free speech has been infringed will be a specialist adjudicator (the new free speech champion at the Office for Students (OfS)) who will deal solely with university free speech cases. This is intended as an informal, inexpensive, and less risky alternative to the court route, similar in many ways to the Office of the Independent Adjudicator, which deals with students’ complaints.
It’s true that the Act also provides an alternative remedy in the County Court, but because the Bill will forbid a complainant from running the same case simultaneously through the courts and the OfS it is likely that a judge would pressure any claimant to exhaust the OfS route before proceeding with a claim – and the claimant would risk significant adverse costs if he or she then proceeded with the case.
What critics like Ms Phillipson – and the powerful university lobby – also seem not to understand is that the courts assign cases to various ‘tracks’ depending on the value of the claim. This aims to ensure the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him might be put on the County Court small-claims track. An academic dismissed from her well-paid professorship might well be assigned to the High Court.
In other words, the functional significance of the tort is that rather than making disputes costlier and nastier, it would, simply by dint of existing, deter universities from riding roughshod over free speech.
One of the reasons the FSU decided to launch legal action against the Education Secretary is precisely because Clause 4 might now be scrapped along with the rest of this vital legislation.
Earlier this month, we were given a court date for a judicial review hearing against Ms Phillipson’s decision to stop commencement of the Higher Education (Freedom of Speech) Act – 23rd January.
The fact that the Administrative Court has given permission for this case to be heard in the High Court means that the FSU has, at the very least, an arguable case.
We have a stellar legal team helping us. Our in-house legal team is also working hard to support them so that we can save whatever money we can while presenting the strongest possible case. But this is the biggest fight we have taken on to date and is going to require hundreds of hours of research, preparation, drafting and other work — so if you think you can, please consider making a donation.
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