Shortly after the newly appointed education secretary Bridget Phillipson decided to suspend the commencement of the Higher Education (Freedom of Speech) Act, Toby Young and the Free Speech Union sprang into action. Eliciting the help of a “stellar legal team” of “top notch” public law specialists, Young and his fellow free speech advocates decided to sue the government. Specifically, they initiated pre-action protocol for a judicial review, claiming that the Education Secretary had overstepped her ministerial powers. While their goal is commendable, it is unclear whether their case will succeed in court.
As a brief reminder, the Higher Education (Freedom of Speech) Act – or HEFOSA for those in a hurry– passed through parliament in May of last year with cross-party support. As often happens, only certain parts of the law commenced immediately upon receiving Royal Ascent, the education secretary being authorised to name dates for when the remaining parts would take effect. The reason for splitting up the bill in this way was to grant universities and the Office for Students time to prepare for the new regulations. Gillian Keegan, the relevant minister at the time, set 1st August 2024 as the commencement date for the most important parts of the act.
Several months and a Labour land-slide election victory later, the future of HEFOSA suddenly hangs in the balance. Bridget Phillipson, having replaced Keegan after the election, put the commencement of all future provisions of the bill on indefinite hold. Apparently, she needed time think about the new law and “consider options, including its repeal.” Enter the Free Speech Union.
While the FSU acknowledges that a minister has the power to make or repeal many regulations, it argues that this does not include commencement regulations, as these are created by Parliament and only handed over to the relevant secretary for the purpose of staggering the relevant provisions of an act. In other words, ministers have the power to decide when those provisions come into effect, but not whether they come into effect.
Is this argument likely to pass muster in the courts? According to Professor Jeff King at the UCL Faculty of Laws, the core idea that ministers cannot prevent legislation from coming into effect “is correct in law.” He points to the Fire Brigades Union case of 1995, in which the courts ruled that the home secretary had acted unlawfully by indefinitely suspending a compensation scheme from the Criminal Justice Act 1988 (CJA), and replacing it with a different scheme through prerogative powers. This is a well-known case, and according to King, “civil servants are very aware of this and will be advising ministers that they cannot keep legislation from commencing indefinitely.”
While this may sound promising for the FSU, Professor King also points to some key obstacles to the Free Speech Union’s case. First, there has recently been a change of government. In such a situation, temporarily delaying the commencement of previously passed legislation is a perfectly legitimate thing for a new minister to do. This is quite different from the Fire Brigades Union case, when the then Tory government had been in power for several years at the time of suspension.
Secondly, the CJA compensation scheme had been delayed for six years by the time the case was brought. In contrast, HEFOSA has only been on hold for about two months. Moreover, the Home Secretary back then had made clear plans to replace the relevant compensation scheme through prerogative powers alone. This was even cited by the Court as evidence that the suspension could not be temporary. The Education Secretary has published no comparable replacement for any provisions in HEFOSA.
Finally, King notes that one would need a “substantial delay” of commencement to allege ministerial abuse of power, and it “would be a pretty incredible finding from the Court” if a few months met this threshold. Here, the professor cites the case of R (Jeffries) v Secretary of State for the Home Department (2018), in which the High Court dismissed a challenge to the government’s decision not to commence a provision of the Crime and Courts Act 2013.
Specifically, the government at the time had announced plans to repeal the relevant provision, but set no specific timetable for doing. In the ruling, Mr. Justice Ousley held that a few months was not “remotely the length of time required” to infer that the decision was no longer under review. For these reasons, King does not think that the case against Bridget Phillipson’s suspension of HEFOSA is likely to get very far.
However, it is not all bad news for the FSU. Some progress was achieved recently when the Court allowed for expedited proceedings, agreeing that “the issues raised by the claim are important and may affect a large number of university staff and students.” Of course, this is only a small victory, as the decision merely allows the claim to move forward, but makes no judgement on its general merit.
Even if a judicial review should be granted, and the Education Secretary reprimanded for abusing her prerogative powers, the most likely ruling would only demand that HEFOSA is kept under review and not scrapped. Indeed, in the case of the Fire Brigades Union, the Court did not compel the Home Secretary to bring into effect the relevant provisions of the CJA 1988 on any particular date.
Even so, Bridget Phillipson cannot simply get rid of the act. Should the Free Speech Union lose its case, the government will still eventually have to allow HEFOSA to come into force, or else bring it before Parliament for a vote on potential new amendments or outright repeal. As such, whether the act lives or dies will be down to MPs. Hopefully, many Labour MPs supportive of the act will stick to their guns when it comes to a vote.
One such MP is Graham Stringer, who wrote an article in The Sun last week arguing against the government’s decision to suspend and potentially scrap HEFOSA. As Stringer writes, freedom of speech at universities allows for “the correction of mistaken ‘facts’ and the improvement of poorly constructed concepts.” He goes on to add that until recently “this would have gone without saying.” If a sufficient number of other Labour MPs share Mr. Stringer’s integrity, the act may still be saved.
All in all, it appears that we cannot rely on the courts to save the Freedom of Speech Act. Of course we wish the FSU the best of luck, but we must also persevere in persuading politicians and the public that the act is indeed worth saving. To this end, we invite UK-based academics to put their name to the open letter to Bridget Phillipson, which has now been signed by close to 650 UK academics, including seven Nobel Laureates. If Toby Young can’t save HEFOSA, perhaps the combined voices of prominent scholars and concerned citizens can.