Rules designed to protect free speech on English campuses risk being “ignored” if the government goes ahead with its reported plan to “water down” the legislation, campaigners fear.
A letter signed by 450 academics and students and sent to ministers at the Department for Education warns that halting the commencement of the Higher Education (Freedom of Speech Act) has “emboldened those on campus who seek to shut down, rather than debate, views of which they do not approve”.
The education secretary, Bridget Phillipson, has faced repeated questioning over the future of the act since her decision in July to pause its key provisions, including the creation of a free speech complaints scheme and a statutory tort that would give aggrieved parties the right to sue universities and students’ unions.
At education questions in the House of Commons earlier this month, Ms Phillipson said the government wanted “to make sure that our universities are places of intellectual challenge and rigour, where people will be exposed to views with which they may disagree” but said the legislation was “unworkable” in its current form and had been challenged by minority groups.
She promised to set out her position “in due course” amid reports that the statutory tort will be among the elements of the act that will be scrapped over fears about “vexatious claims”.
This risks making the legislation “toothless”, the campaigners’ letter warns, given it would remove the “only mechanism in the act that provides for judicial enforcement of its duties”.
It says that under the act, the Office for Students – which will run the complaints scheme – only has the power to make recommendations which can be ignored by universities without the “legal backstop” of the tort. This element of the act has been questioned before and the tort was removed from the legislation in the House of Lords before being reinstated by the previous Conservative government during its bumpy passage through parliament.
“Creating liability risk for universities that ignore their free speech duties is the most effective way to ensure that free speech is always factored in, substantively, when making decisions” the letter concludes. “The inaction of the government on this issue is causing real harm to academics and students.”
One of the organisers, Abhishek Saha, professor of mathematics at Queen Mary University of London, said bringing back the act without the tort would not solve any of the problems with academic freedom and free speech in universities.
He said he felt the impending commencement of the act before it was paused had led to some small improvements in the free speech climate at universities but this had now stalled and was “slowly reversing”.
“Immediately after the act was paused, many universities stopped the work they were doing to prepare for it,” said Professor Saha, a founder member of the London Universities’ Council for Academic Freedom. “Everyone had the impression the act was dead and that has really changed things for the worse.”
Ministers considering what to do next on free speech also face the added complication that commencing the complaints scheme would increase the workload of the OfS at a time when it has paused much of its other work to focus on the financial sustainability of universities.
