The likely repeal of England’s free speech act is a tragedy

Last Friday, the UK’s Secretary of State for Education, Bridget Phillipson, stopped the commencement of England’s “burdensome” Higher Education (Freedom of Speech) Act “in order to consider options, including its repeal”.

She added that she was “aware of concerns that the act would be burdensome on providers and on the OfS”, and there is little doubt that her decision will please university vice-chancellors and sector groups who now have one fewer regulatory burden to worry about. However, for those of us who care about free speech in higher education, the pause (and likely repeal) of the act is a tragedy.

It is certainly true that the act introduced some new burdens, such as a requirement for universities to maintain a Code of Practice for free speech and a duty to promote the importance of free speech. However, universities have been spending millions on burdensome regulations for years. A recent investigation by Alumni for Free Speech found that universities spend over 200 times as much on Equality, Diversity and Inclusion (EDI) as on free speech protection.

Three days before she paused the act, Phillipson delivered a speech at the Embassy Education Conference where she asserted that universities are a “public good, not a political battleground”. And she told the BBC that “the culture wars on university campuses end here”. But to ensure that universities are recognised as a public good, it is vital that they remain apolitical and the public regains trust in their impartiality.

The Freedom of Speech Act was needed precisely because universities were not protecting academic freedom adequately in the existing legal framework. Noah Carl was fired by the University of Cambridge in 2019 following a vicious mobbing campaign objecting to lawful but controversial points of view in his research and a subsequent internal investigation that concluded that his appointment could “bring the College into disrepute”. An employment tribunal found that Jo Phoenix was constructively dismissed by the Open University following a “targeted campaign of harassment” facilitated by the university, for establishing a gender-critical research network deemed off limits by fellow academics. There are many more examples.

What set the new act apart from previous legislation was that it included two vital enforcement mechanisms. The first was a free-to-use free-speech complaints scheme for academics, students and visiting speakers. The second was a statutory tort provision allowing affected people to go to court. These provisions were scheduled to come into force on August 1.

The act also created a new position of director for freedom of speech and academic freedom at the Office for Students (OfS), to which Arif Ahmed, formerly a philosophy professor at Cambridge, was appointed last year. Ahmed has stressed that he has “no interest in any ‘culture war’” and will “defend free speech within the law for all views and approaches: postcolonial theory as much as gender-critical feminism”. In a major speech, he added: “This is not a partisan role. I really can’t stress enough that there is absolutely no question of conforming university teaching or research to any political agenda.”

In the aftermath of Phillipson’s decision, government sources have claimed that the act would have forced universities to platform Holocaust deniers. This is simply false. The act defined freedom of speech according to the European Convention of Human Rights, whose Article 17 excludes protection for Holocaust denial.

Freedom of speech does not lie on one side of any culture war but protects us all – especially the powerless and the marginalised. Public policy expert Jonathan Rauch, who has dedicated much of his life to marriage equality, says: “Free speech is really the main weapon that we’ve used. When I was born, homosexual Americans could not legally have intimate sexual relations…Now I’m married to my husband, and it’s not even controversial. We did not have votes. We did not have public support. We did not have money. We didn’t have anything except our voices.”

Free Speech is the “eternally radical idea”. Throughout history, authorities have suppressed speech and punished dissenters. But since the act was passed in May 2023, universities have been updating their free speech codes of practice and auditing internal policies to ensure compliance. These steps and the potential threat of future enforcement mechanisms had started focusing the minds of university managers and led to modest but genuine improvements in the free speech climate over the past year.

These are now likely to be swiftly reversed. Phillipson has effectively killed the most inspiring, vital, and significant legislation on higher education in living memory, six days before its key provisions were due to come into force. Yet she did not announce it to parliament from the dispatch box, as might have been expected for a decision of this magnitude. The death warrant was slipped in at the end of an otherwise mundane written statement almost as an afterthought.

What does it mean for our democracy when a minister can so casually stop the commencement of legislation passed in the last parliament? What does it mean for the regulatory state when it prioritises the appeasement of senior managers in the very sector being regulated? And what does it mean for higher education when there is, once again, no effective check on its tendency to betray its own historic purpose?

Abhishek Saha is professor of mathematics at Queen Mary University of London and a founder member of the London Universities’ Council for Academic Freedom. He writes here in a personal capacity.