The Higher Education Act 2023 and the future of free speech at UK universities

With the new duties outlined in the Higher Education (Freedom of Speech) Act set to come into effect later this year, FSU Advisory Council member Dr Abhishek Saha has been taking a look at what the new free speech duties set out in the legislation mean for universities and student unions in England and Wales.

With the new duties outlined in the Higher Education (Freedom of Speech) Act set to come into effect from 1st August 2024, FSU Advisory Council member Dr Abhishek Saha has written a great piece for Heterodox Academy (here) about the new duties the legislation sets out for universities and student unions in England and Wales with respect to freedom of speech and academic freedom on campus.

In essence, the Act requires universities to take steps to secure freedom of speech within the law for its staff, students, and visiting speakers, maintain a code of practice detailing how its values uphold freedom of speech, and actively promote the importance of free speech and academic freedom, with the goal of creating a culture of free speech on campus.

The legislation also creates two new enforcement mechanisms to ensure there isn’t any backsliding from Stonewall-affiliated institutions that have in the past overinterpreted their duties under the Equality Act’s Public Sector Equality Duty.

The ‘first port of call’, as it were, is a complaints system, which will be overseen by the Office for Student’s (OfS) new Director for Free Speech and Academic Freedom, Prof Arif Ahmed, and will allow aggrieved parties to make a complaint to the regulator if they feel a higher education provider (HEP) or students’ union has failed to secure freedom of speech for them.

In addition, there’s a ‘last resort’ statutory tort mechanism, to allow civil claims to be brought in the County Court against Higher Education Providers and Student Unions if they breach their new free speech obligations.

That last mechanism is vital.

Right from the start of the legislative journey and the government’s first policy paper, the FSU felt strongly that the only way to make sure universities upheld their new free speech duties would be to give aggrieved parties the option of suing them in the County Court.

Without that, the Act wouldn’t have made much more difference than the Education (No 2) Act 1986, which imposed a legal duty on universities to uphold free speech, but was never taken seriously by the sector because it had no accompany enforcement mechanism.

How do we know the sector isn’t taking it seriously? Because our case and legal teams get at least 50 cries for help a week, many of them from students and academics who get into trouble simply for exercising their lawful right to free speech on campus.

That’s why the FSU lobbied for the Bill when the Government was weighing up whether it was needed, advised the Government on what to include in it, helped to amend it, defended the statutory tort mechanism from critics in both Houses of Parliament, and, finally, mobilised our allies in Parliament to get it over the line.

On the point about defending the statutory tort from critics, Abhishek tells the story of how the FSU, along with a number of other individuals and campaign organisations, fought to retain this mechanism in the version of the legislation that eventually reached the statute books:

On June 28, 2022, the bill was debated for the first time in the House of Lords — the upper house, which has many members with connections to university leadership — where it faced significant opposition. The statutory tort provision of the bill, which allows complainants to go to court for breaches of free-speech duties, proved to be especially controversial. In the face of demands that the bill be weakened, the Free Speech Union organized a letter in November 2022 signed by more than 50 prominent UK academics urging the government not to water down the bill. Despite this, on December 7, 2022, the House of Lords voted to remove the statutory tort clause completely, rendering the bill ineffective and sending it back to the Commons. The Russell Group welcomed this as a sensible step.

Thankfully, that wasn’t the end of the story.

Claire Coutinho, the current UK Secretary of State for Energy Security and Net Zero, was a junior minister in the Department of Education until August 2023. A graduate in mathematics and philosophy from Oxford, her responsibilities at the Department of Education included freedom of speech, which made her directly responsible for the bill. On December 29, 2022, I sent the minister a multi-signatory letter signed by me and 14 other academic mathematicians. We wrote to her as fellow mathematicians to describe the erosion of academic freedom in universities, the impact this was having upon the mathematical sciences, and the importance of ensuring that an academic whose free-speech rights are violated should have the right to have a claim heard by a transparent court of law.

A few weeks later, Coutinho replied to our letter affirming her strong support for academic freedom and requesting a meeting with me to discuss these issues further. I had a half-hour conversation with her on February 6, 2023, during which we discussed the free-speech climate in universities and various aspects of the bill.

Speaking on the floor of the House the next day, Coutinho strongly defended the tort as “critical to stimulating the cultural transformation” necessary for free speech, citing her conversations with “leaders and academics in the higher education sector.” The Commons voted 283 to 161 to reinstate the tort in full.  

It’s also worth pointing out that prior to that vote in the Commons, the FSU managed to convince the government to amend Clause Four of the legislation, which contained the statutory tort mechanism, such that in instances where an academic or student sues an HEP or students’ union on the basis that a breach of their speech rights has led them to suffer ‘loss’, that term should be understood to encompass not just pecuniary, but other subtler forms of loss (e.g. humiliation, loss of reputation – or even, as in the case of City University v Laura Favaro, restriction of access to research data with all the attendant detriment to career thus generated).

The rationale for this amendment to the statutory tort was of course that campus cancel culture constitutes an insidious phenomenon, its thin coils of narcissistic, middle-class affront well capable of creeping up from the academy’s intellectual basement, and demurely asphyxiating the career of a dissenting academic without ever having recourse to the payroll department.

Dr Saha continues:

The bill returned to the House of Lords, where peers targeted the tort again. Coutinho guided the bill through some choppy waters while continuing to engage with academics, politicians, and free-speech campaigners. With great political skill, she found an acceptable compromise on the tort — it was agreed that a complainant would need to have exhausted the free-speech complaints scheme before going to court unless bringing civil proceedings for an injunction only — and successfully got the bill over the mark. In a landmark event, the bill was agreed to by both Houses on May 10, 2023, and received Royal Assent the next day, thus becoming the Higher Education (Freedom of Speech) Act 2023.

Worth reading in full.