Heavily debated legislation intended to help protect free speech and academic freedom at English universities has finally been given the go-ahead, albeit with several of its key elements stripped out or revised.
Students’ unions will no longer be directly subject to the new law, while education secretary Bridget Phillipson has confirmed she intends to remove from the Higher Education (Freedom of Speech) Act a “statutory tort” that would have allowed complaints about free speech violations to be taken to the courts.
Such grievances will still be heard by the Office for Students (OfS), but Phillipson has also signalled she intends to reform the scheme that will be run by the regulator, with students no longer able to use it.
Phillipson announced the changes – which will need to be approved by Parliament – as part of efforts to ensure the act does not overburden universities after institutions raised fears about “vexatious” claims. Since pausing the commencement of the act last July, the minister has repeatedly said that the legislation in its current form – designed by the previous Conservative administration – was unworkable in part because, she said, it could have encouraged harassment of vulnerable groups.
“Academic freedom matters, freedom of speech matters and we will preserve those two pillars of national strength. But we will proceed in a way that actually works,” Phillipson told the House of Commons.
Campaigners had argued that the threat of legal action, which could only be used once other avenues of complaint were exhausted, was what “gave the act teeth” and would force universities to respect decisions made by the OfS.
But Universities UK and others have argued that it opened the door to a flood of potential costly legal battles.
Sally Mapstone, the president of UUK, wrote to Phillipson this week to warn the tort could be “used for vexatious claims which will ultimately lead to considerable sums of money being spent on legal advice and action, which will divert extremely scarce resources away from supporting students and into the pockets of lawyers”.
She suggested that existing legislation and the other provisions included in the act were sufficient “routes of redress” for complainants.
Phillipson echoed these comments in her Commons address and said the fear of litigation “could hurt rather than help free speech” if universities decided not to invite challenging speakers for fear of ending up in court.
The minister told MPs that Arif Ahmed, a University of Cambridge professor who has already been appointed as a director for free speech at the OfS, will remain in position but hinted that the way key appointments were made at the regulator needed to be reformed to avoid political interference.
A ban on the use of non-disclosure agreements by universities in cases of bullying, harassment or sexual misconduct on campus will also be maintained, Phillipson said.
Duties specifically focused on students’ unions will be dropped because these bodies are “neither equipped nor funded to navigate such a complex regulatory environment”, Phillipson said.
The complaints scheme will be brought back to Parliament for reform to allow the OfS to prioritise the most serious complaints, Phillipson added, and “to remove the confusing duplication…for students”. If changes are approved, the scheme will only be for use by staff, external speakers and university members, with students encouraged to use the Office for the Independent Adjudicator instead.
Ahmed said that the OfS welcomed the government’s decision and it will begin to plan for the elements of the act that will come into force soon, while awaiting further guidance on the parts that are earmarked for reform.
Free speech campaigners, however, reiterated their view that the tort was necessary to ensure compliance with the wider legislation.
“The argument that the tort would have led to vexatious litigation is disingenuous,” said Edward Skidelsky, director of the Committee for Academic Freedom.
“The tort was there purely as a backstop. It could not have been used unless the complaints scheme was exhausted.”
Amira Campbell, the president of the National Union of Students, said she was “delighted” that students’ unions will be removed from the legislation, adding that they had had the “threat” of complex legal responsibilities and new regulation “hanging over them” for years.
The removal of the tort showed Labour recognised the bill was “fundamentally rotten”, said Jo Grady, general secretary of the University and College Union, who urged the government to go further still and “dispense with this Tory culture war legislation altogether”.
