The Suspension of the Freedom of Speech Act

When people asked me on July 5th whether the incoming Labour Government would do anything to derail the Higher Education (Freedom of Speech) Act 2023, pointing out that its most important clauses weren’t due to be commenced until August 1st, I assured them it would be okay. “Keir Starmer and his allies will be too busy celebrating in their villas in Tuscany to notice,” I said. “By the time they’ve got their feet under the desk, the Act will have been implemented.”

I was wrong. Bridget Phillipson, the new Education Secretary, did notice and duly revoked its commencement. She made a number of statements to justify her decision, not all of them consistent with each other. But I suspect she just wanted to torpedo the Act without burdening the Government with having to repeal it, which would take up valuable parliamentary time. She was kicking it into the long grass.

As the director of the Free Speech Union, I had been involved in getting this Act on the statute books since the autumn of 2020, when I’d been one of several contributors to a paper setting out why stronger protections for academic freedom and free speech at English universities were needed and what legislative form they might take. That paper was submitted to the then Higher Education Minister and, after some revisions, became the Higher Education (Freedom of Speech) Bill, first published in 2021. I was then part of a coalition that argued for the Bill as it made its way through Parliament, briefing its supporters, meeting with ministers and helping to draft amendments to make it more palatable to opponents.

One of the things that made Phillipson’s decision to place the Act in suspended animation so disappointing is that the parliamentary process it had gone through from 2021-23 was so thorough. As someone with a front row seat, I was impressed by how well parliament did its job, scrutinising every clause, consulting all the relevant stakeholders and fine tuning the bill until it was acceptable to as many of them as possible. A huge amount of work went into getting it shipshape and the final version – the version that passed into law – enjoyed cross-party support from both houses. By choosing not to commence it in full, Phillipson was defying the will of parliament. Isn’t that a breach of one of the fundamental principles of the English constitution?

Another disappointment was the reasons the Secretary of State gave for hamstringing the Act, none of which stacked up.

One argument she made is that complying with it would place too great a financial burden on universities. Not so. The DfE carried out an impact assessment in 2022 and concluded that the compliance cost would be £4.7 million a year. To put that in perspective, English universities spent £550 million on Access and Participation Plans in 2020-21, a figure expected to rise to £565 million in 2024-25.

But her main argument was that the Act would make it harder for universities to prevent ‘hate speech’ on campus, particularly anti-semitism. In the Times, a government source described the Act as “the Tories’ hate speech charter”. That’s another red herring. Indeed, that issue was thrashed out at length during the parliamentary debates, with the bill’s critics having to be reassured – again and again – that the free speech protections brought in by the Act would not provide any additional protections for ‘hate speech’ on campus. In particular, it wouldn’t protect ant-semitic speech, such as Holocaust denial. When deciding what speech the Act obliged them to protect, universities would be able to look for guidance to case law in the European Court of Human Rights, which has made it clear that ‘hate speech’, such as Holocaust denial, aren’t protected by Article 10. Consequently, no English university would be in breach of its new free speech duties if it refused to allow ‘hate speech’ on campus. (For chapter and verse on this, see this piece in the New Statesman by Akua Reindorf, Britain’s leading equality barrister.)

So why has Bridget Phillipson stopped the implementation of the Act? I can only speculate, but I suspect it’s because she was got at by the panjandrums of the higher education sector, who told her that the new duties in the Act would jeopardise their relationship with authoritarian regimes like China, whom they’re increasingly financially dependent on. (UCL, for instance, has 15,000 Chinese students on roll.) Why? Because universities like Nottingham, which has two campuses in China, might be obliged to uphold their commitment to free speech in their overseas branches, a concern that was flagged up in a Russell Group position paper on the Act earlier this year. This was because the Act required English universities to set out how they were going to comply with their new free speech duties on all their campuses when registering with the Office for Students, something the OfS would then be able to hold them to. In addition, it would have made it difficult for English universities to accept overseas students funded by authoritarian states who make it a condition of awarding those bursaries that the recipients don’t criticise their country of origin. Finally, it would have make it harder for universities to take seriously complaints from Chinese students about English academics who have the temerity to criticise China. Those academics would be able to appeal to the new Act to bat away those complaints.

When Vice Chancellors and their public affairs teams made this argument to Phillipson, they probably said they would be less concerned about queering their pitch with countries like China, Malaysia and the UAE if the Government was willing to raise the cap on tuition fees and increase their research funding. Not wanting to do either of those things, or knowing the Treasury wouldn’t want to, the new Education Secretary probably concluded the path of least resistance was to smother the Act.

The Free Speech Union is judicially reviewing Phillipson’s decision, arguing that it was unlawful. It was a dark day for parliamentary democracy when an Act that enjoyed the overwhelming support of both houses of parliament was strangled at birth by a minister of the Crown.