Lucy Powell was last week appointed Secretary of State for Education in Prime Minister Andy Burnham’s new Cabinet. A former Shadow Education Secretary (2015–16), she brings to the role a consistent record of pressing for wider and more equitable access to higher education, but a far from encouraging record on questions of campus free speech and academic freedom.
Making way for her is, of course, Bridget Phillipson, with CAF as yet unable to confirm Whitehall rumours that her transfer to the Women and Equalities brief was intended to grant some much-needed respite from our forensically precise and legally unanswerable critiques of her department’s higher-education proposals.
Poor Bridget. Or rather, on second thoughts, perhaps not, since her principal claim to fame in the higher-education sphere was pausing commencement of the Higher Education (Freedom of Speech) Act 2023 within weeks of Labour taking office after its July 2024 general election victory.
The Act was intended to transform the enforcement of free-speech and academic-freedom protections at English universities. As passed, it did so through two distinct mechanisms: a new statutory tort, giving those who suffered loss access to the courts; and a new Office for Students (OfS) complaints scheme, enabling students, staff and visiting speakers to seek practical redress, including recommendations that institutions review decisions, change their internal procedures or pay compensation.
Together, these mechanisms were intended, for the first time, to give the existing statutory protections real teeth. True, the Education (No. 2) Act 1986 had imposed broadly similar duties, but senior university administrators had never taken them especially seriously, for the simple reason that they were backed by no effective regulatory or remedial machinery.
Alas, following Phillipson’s intervention, the tort – always fiercely opposed by the university lobby on grounds that might most politely be described as disputable – was scrapped. The complaints scheme, too, was delayed by more than two years and will not begin until 1 September 2026, even then in substantially diminished form. Most notably, students have been excluded, despite undergraduates and postgraduates frequently finding themselves at the sharp end of campus free-speech disputes, as numerous cases supported by CAF – including those of Thea Sewell, Maeve Halligan, Robert Ivinson and Matthew Keehan – demonstrate.
In a fittingly symbolic coda to her tenure at the DfE, the Daily Mailrecently revealed that the Government had spent more than £500,000 of public money defending its decision to water down the Act. Astonishingly, internal documents disclosed during the litigation show that, even before the general election, officials had been instructed to prepare the statutory instrument needed to halt the Act on the first day of a Labour government, and that Phillipson did “not wish to implement the Act, at least in full”.
That is a truly lamentable response to a campus free-speech problem whose scale and seriousness are demonstrated week after week by the casework of CAF and others.
Even in its diminished, post-Phillipson form, however, the OfS complaints scheme remains a vitally important new avenue of redress for academics whose lawful speech has been restricted. Its regulatory teeth, if not quite in the Cerberus league of underworld guardians envisaged by the legislation as originally drafted, are nevertheless still sharp enough to nip at the trouser seat of the odd errant vice-chancellor.
Indeed, if the regulator receives properly evidenced and carefully formulated complaints – and is willing to act decisively upon them – the scheme could begin to change institutional behaviour in a meaningful way.
Academics who have encountered restrictions on their lawful speech, or who are considering using the new scheme, are welcome to contact CAF in confidence at manager@afcomm.org.uk.
We can help assess whether a complaint falls within the scheme, identify the relevant legal and factual issues, and formulate it as clearly and effectively as possible.