CAF is dismayed and deeply concerned by Education Secretary Bridget Phillipson’s decision to “stop further commencement” of the 2023 Higher Education (Freedom of Speech) Act, which was due to come into force on 1 August 2024. Yesterday, in a written statement to Parliament, she said she intended “to consider options, including its repeal,” citing concerns that the act may be “burdensome on providers and on the OfS.”
The 2023 Act, implemented by the previous government, affirmed the legal duty of universities to protect the free expression of all legally allowed speech on campus. It established the Office for Students (OfS) as the supreme regulator of free speech in universities, with the power to review complaints, launch investigations, and issue fines. The act would also enable academics to seek compensation through the courts for losses suffered due to free speech violations. CAF has praised the strong free speech guidance issued by the OfS earlier this year.
In addition to her statement, Phillipson’s previous statements about the law (then known as the Higher Education Free Speech Bill) in 2022, in an interview with the PA news agency, provide a useful indication of her likely motives. She stated, encouragingly, that “vigorous debate and open debate in our universities is really important” but went on to dismiss the bill as a “desperate” way for Government ministers to “distract” from what she described as their failures in higher education, stating that “the Government should recognise that our universities are a public good, not a political battleground.” Additionally, in a speech to Universities UK in September 2023, Phillipson accused the Conservative Government of “treating universities… as a front in the culture wars” and “a source of cheap headlines.”
CAF agrees with Phillipson that higher education and academic freedom are too important to be treated as a political football, but it is difficult to describe the 2023 Act as anything other than impartial. By providing mechanisms to protect all legally allowed speech within universities, the act protects the free expression of all opinions, without fear or favour. The OfS is an independent body, and there is no longer a Conservative government, so there is little reason to believe there would be a right-wing bias in the act’s enforcement.
Phillipson has also said the act may “expose students to harm and appalling hate speech on campuses.” Phil Rosenberg, president of the Board of Deputies of British Jews, welcomed Phillipson’s decision, stating that the act “risked enabling anti-Semitic extremists to access university campuses by severely impacting the ability of universities to block their presence.”
As Phillipson herself said in the above-mentioned interview, free speech “mustn’t cross a line where it comes to violence or intimidation or abuse.” However, the terms “extremist” and “hate speech” are frequently applied not only to abuse but also – often wrongly and subjectively – to the expression of opinions. Protecting students from harm is a laudable aim, but it must never include protecting them from opinions they find offensive or upsetting. Doing so would violate academic freedom and run against the entire purpose and ethos of academia and higher education.
The Free Speech Union (FSU) has strongly criticised the decision and stated its intention to “bring judicial review proceedings” against the government if it refuses to commence implementation of the act. Like the FSU, we strongly oppose this decision. We have already stated our concerns about what a Labour government might mean for free speech, including the possibility of a Westminster version of the disastrous Scottish Hate Crime Act, and this latest decision does not bode well for the government’s commitment to free speech.
Despite her decision, Phillipson has reaffirmed that the government is “absolutely committed to freedom of speech and academic freedom.” To prove this, she should reconsider her decision. If she chooses to review and amend the act, she must take great care to do so in a way that avoids weakening or diluting its vital protections of free speech. To repeal or substantially weaken the act at this stage, after years of hard work, would be an enormous setback for academic freedom.