In a recent written answer to crossbench peer Lord David Alton, Baroness Jacqui Smith responded to CAF’s warning that the Office for Students’ free speech complaints scheme may not be fully operational until 2030 by noting that the Government is still “seeking a suitable legislative vehicle” to bring the scheme into force. In the meantime, she observed, academic staff may rely on judicial review or the Employment Tribunal.
Strictly speaking, that may be true. But judicial review remains a remedy of last resort: tightly constrained in scope, procedurally exacting, and expensive enough that exposure in a fully contested case can readily exceed £100,000.
In practice, disputes are therefore channelled into the Employment Tribunal, typically via the Equality Act 2010, as in a number of high-profile cases involving Professor Jo Phoenix, Professor David Miller, and Dr Almut Gadow. This, too, is an imperfect fit. The tribunal has no direct jurisdiction to enforce duties under the Higher Education (Freedom of Speech) Act 2023 (HEFSA) and is already operating under significant caseload pressure.
What this means, increasingly, is that a legal framework designed to adjudicate workplace discrimination is being asked, often 18 to 24 months after the events in question, to resolve complex expression-based disputes that go, in substance, to the scope of academic freedom.
And even where claimants succeed, another problem is now becoming harder to ignore.
As highlighted in Early Day Motion 2942 (tabled on 11 March), there is growing concern that a substantial proportion of tribunal awards are never paid. Freedom of Information requests obtained by the Bureau of Investigative Journalism indicate that three quarters of more than 7,000 workers who used the Employment Tribunal penalty enforcement scheme did not receive their award. The system, as the Motion notes, remains fragmented, insufficiently monitored and largely claimant-led.
The point is not that universities are generally failing to comply – they are not. But in a financially constrained sector, where pressures to conform to prevailing ideological orthodoxies are already acute, the wider system on which this route depends is hardly reassuring. At precisely the moment when academic staff are being directed towards the Employment Tribunal as the main route for vindicating their rights, that system is itself being called into question.
This matters all the more because the missing OfS complaints scheme was supposed to supply what the current landscape lacks: a lower-cost specialist mechanism for resolving alleged breaches of free speech and academic freedom before they harden into protracted legal disputes. Over time, it might also have generated a body of precedent capable of guiding universities in the interpretation of their new statutory duties. Without it, one of the central promises of HEFSA risks remaining unfulfilled.
If you share these concerns, please consider adding your name to this open letter (here), organised by CAF and other free speech campaigners, calling on the Government to bring the complaints scheme into force. Please also share it with colleagues and networks.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.