Following months of deliberation on the fate of the Higher Education (Freedom of Speech) Act 2023, the Government has decided to allow a watered-down version of the law to commence this year. While several important elements have been removed, saving the Act from a total repeal is a partial victory for the academic freedom movement.
Speaking in Parliament earlier today, Secretary of Education Bridget Phillipson said that the original version of HEFOSA “did not rise to the challenge”, and announced that several aspects had to be changed by a “responsible government”.
Specifically, Phillipson announced that the Government would scrap what she called “unworkable duties on the student unions, a tort clogging up the courts, and the Office for Students obliged to consider a vast number of complex complaints”.
Several other aspects of the Act are however still set to be implemented. The Minister explained that “the duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law [and] to put in place a code of conduct on freedom of speech” and “the ban on non-disclosure agreements for staff and students and higher education providers in cases of bullying, harassment and sexual misconduct” would commence as originally planned.
Moreover, Phillipson said that she planned to commence “the duties on the OfS [Office for Students] to promote freedom of speech, and the power to give advice and share best practices”, as well as retain the Director of Free Speech and Academic Freedom, Prof. Arif Ahmed, within the government watchdog.
The two provisions, which are to be removed if the Government gets its way, concern duties on student unions and the tort for bringing legal actions against a university over free speech infringements. The former required student unions to “take reasonably practicable steps” to secure freedom of speech, as well as “maintain a code of practice” for its “values relating to freedom of speech” and the “procedures to be followed” in meetings and other events.
According to Phillipson, however, student unions are not equipped with either the financial means or the legal knowledge to follow such regulatory procedures, and must therefore be exempt from these requirements.
As for the tort, the original Act implemented an enforcement mechanism by which those who perceived their free speech rights to have been violated could seek legal redress. In the current system, the only way of enforcing the laws safeguarding academic freedom is through a costly and time-consuming employment tribunal.
However, the Minister expressed concerns that this updated provision would “create costly litigation that risk diverting resources away from students at a time when university finances are already strained”. She attempted to reassure critics by emphasising that the remaining “routes of redress have plenty of teeth”.
Here, she was referring to the projected OfS complaints scheme, by which students, staff, and external speakers can report violations of their free speech rights. Even this scheme, however, is to be amended and narrowed in scope. The Minister explained that rather than impose a duty on the OfS to assess every complaint, they would be given “the power to consider” each instance.
Although the complaints scheme is an improvement on the current system, it lacks a proper legal enforcement mechanism without the tort. HEFOSA is very clear that the scheme “may not authorise the OfS to require anyone to do or not do anything”.
Even if it upholds a complaint, the Office for Students can at most issue a penalty as a recommendation on the offending university. This is clearly not good enough: such recommendations can simply be ignored. Furthermore, the tort also ensures against ideological capture of the OfS itself.
Finally, the concern that the tort would put an unbearable strain our universities’ finances is silly. First, the estimated costs of potential legal cases are a drop in the ocean compared to what the sector spends on a host of other, less important things.
Secondly, the tort can only be used once the OfS complaints scheme has been exhausted. This means that if universities plan on taking the recommendations of the OfS seriously, they should have very little to fear from the tort. It is a backstop to ensure compliance, not a gateway to costly legal harassment over imagined infringements.
That the Government has decided against scrapping the Act all together is progress of a kind. Even the watered-down version proposed by Bridget Phillipson in The Commons today is an improvement on the current system. However, it is far from enough to adequately protect free speech and academic freedom on campus.
Before the repeals and amendments of any provisions can commence, the Act must once again be brought before Parliament and debated. This provides another chance to urge our MPs to take academic freedom seriously, and hopefully make them reject these toothless changes. We continue to call on the Government to implement HEFOSA in full.