The Higher Education (Freedom of Speech) Act (HEFSA) risks becoming ineffectual if the government follows through with plans to dilute its provisions, campaigners have warned.
A letter signed by 470 academics and students and sent to ministers at the Department for Education, says that halting the commencement of the Act has already “emboldened those on campus who seek to shut down, rather than debate, views of which they do not approve”.
HEFSA was a carefully crafted piece of legislation, properly debated in both Houses of Parliament, and designed to address the free speech crisis in English universities. Having received cross-party support, its most important provisions were due to be implemented on 1st August.
These included the creation of a free speech complaints scheme to be accompanied by a statutory tort which would allow recourse to the civil courts for any students or academics whose freedom of speech was being constrained.
However, because Rishi Sunak called an election before the Act had been implemented, the Education Secretary, Bridget Phillipson, seized the chance to derail it.
Ms Phillipson has argued that the legislation in its current form would be “damaging to the welfare of students”, with “Jewish groups” in particular worried that “fear of sanction will push [universities] to overlook the safety and well-being of minorities”. She has also claimed the Act would make it harder to deny a platform to Holocaust deniers (Times).
As the FSU has pointed out, though, this simply isn’t true. HEFSA’s definition of freedom of speech 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.
Moreover, the Act protects free speech only “within the law” – and English law already provides strong protections against harassment and hate speech (in, for example, the Public Order Act 1986, the Crime and Disorder Act 1998, the Malicious Communications Act 1998, the Criminal Justice Act 2003, the Communications Act 2003 and the Equality Act 2010).
Meanwhile, Ms Phillipson has promised to set out her position “in due course”, amid reports that the statutory tort will be among the elements of the Act to be scrapped, over fears of “vexatious claims”.
But as the campaigners’ letter explains, this risks making the legislation “toothless”, since it would remove the “only mechanism in the Act that provides for judicial enforcement of its duties”. Without it, the Office for Students (OfS) – the higher education regulator that will run the complaints scheme – can merely make recommendations for penalties which can be ignored by universities in the absence of the “legal backstop” afforded by the tort.
All regulatory bodies are susceptible to capture by the sector they’re supposed to be regulating and that’s particularly true of higher education. The only way to ensure universities uphold their new free speech duties is to give aggrieved parties the option of taking legal action. Otherwise, HEFSA will make no more difference than the Education (No.2) Act 1986, which imposed a legal duty on universities to uphold free speech – but which they’ve never taken seriously because there’s no accompanying enforcement mechanism.
“Creating liability risk for universities that ignore their free speech duties is the most effective way to ensure that free speech is always factored in, substantively, when making decisions,” the letter concludes. “The inaction of the government on this issue is causing real harm to academics and students. We therefore call upon the government to implement HEFSA in full and without delay.”
More prosaically, the government’s inaction also complicates the workload of the OfS, which has already suspended many of its tasks in order to prioritise universities’ financial stability. Implementing the complaints scheme minus the tort will place further strain on it without providing any effective means to ensure compliance.
Speaking to Times Higher Education, one of the organisers of the letter, Abhishek Saha, Professor of Mathematics at Queen Mary University of London, said bringing back the Act without the tort would solve none of the problems with academic freedom and free speech on campuses.
Prof Saha added that the impending commencement of the Act before it was paused had led to a small improvement in the free speech climate within English universities, but that this was now “reversing”.
