On 1 August, the main provisions of the hugely significant Higher Education (Freedom of Speech) Act 2023 will come into force.
In addition to setting out new duties for English universities to secure and promote freedom of speech within the law, the act creates two new enforcement mechanisms. The first is a free-speech complaints scheme that will be administered by the Office for Students (OfS). The second is a statutory tort provision that will allow affected persons to go to court.
Of these, the complaints scheme is intended to be the first port of call: it will be free to use for academics, students and visiting speakers, and universities falling foul of their duties are expected to be named publicly. In contrast, the statutory tort creates real liability risk for universities but (except for injunctions) can only be used by complainants after exhausting the complaints scheme route; it should therefore be seen as a backstop.
In its recent consultation on how the complaints scheme will be operated, the OfS proposed that it will only take up a free speech complaint under this scheme if the complainant has exhausted the relevant internal complaints process at their own institution or 30 days have elapsed since those internal proceedings began. Mission groups such as the Russell Group and the Universities Alliance have claimed that the 30-day rule will create a “hierarchy of complaints” and “force organisations to review these quicker than other matters”. Universities UK has argued that “30 days is an unrealistic timescale for providers to complete their internal processes” and that the threshold should be extended to at least 90 days.
These criticisms are mistaken on four levels. First, for many free speech claims, 30 days should be sufficient time for universities to complete their reviews. Increasing this will disincentivise them from dealing with free speech matters promptly and encourage tactical delays.
Second, if a university is making good-faith attempts to resolve a free speech complaint and liaising properly with the complainant then the complainant will be unlikely to go to the OfS even if the internal process has not been completed in 30 days – for the simple reason that it takes time and effort to draft a new complaint. In most cases, the 30-day rule will only be relevant if the university is not taking a free speech complaint seriously.
Third, as a matter of law, the new act requires universities to have “particular regard to the importance of freedom of speech”, which means that additional importance must be put on free speech over other matters. Notably, the “particular regard” clause of the act trumps the “due regard” clause of the public sector equality duty to foster good relations among groups, were the two duties to come into conflict. It is thus entirely appropriate that organisations should prioritise free speech complaints over others. Freedom of speech is foundational to human progress, liberty and the search for truth; it rightly enjoys a special status in law.
Fourth, and more generally, universities have vast resources and power compared with individual academics. Internal processes are punishing and drawn-out affairs. If academics are required to spend up to 90 days going through an internal HR process before they can avail themselves of the new scheme, I believe that the personal cost of raising any complaints would be far too high, rendering the complaints scheme less effective.
The Russell Group has also said that during the first 12 months of the new scheme, the OfS “should always seek academic or expert advice”. This ignores the ideological bias in many disciplines and the suppression of unorthodox views. In many cases involving highly controversial opinions, expert academic advice is likely to detract, not help. Moreover, in the majority of cases, the matter to be judged will be a mixture of law and fact, so expert academic advice will be irrelevant.
Mission groups have also opposed the broad OfS definition of “visiting speaker” (regarding whom the free speech duties will apply). They have asked for it to be restricted to those formally invited via an organisation’s approvals process. However, nothing in the OfS proposals precludes universities from requiring that event organisers go through an approvals process for formal confirmation of their event. What the proposals ensure is that if approval is denied for reasons that amount to a breach of the duty to secure free speech, then the visiting speaker may have grounds for a complaint.
On each of the above issues – the 30-day rule, expert advice, visiting speakers – the demands from sector groups and university management are an attempt to retain control. However, the biggest threats to free speech and academic freedom today come from within our institutions: ideologically loaded training, EDI industry, censorious peers, managers who fail to stand up to activists and online mobs.
If we are to stop the rot in our universities, the OfS must resist sector lobbying to weaken its proposals.
Abhishek Saha is professor of mathematics at Queen Mary University of London and a founder member of the London Universities’ Council for Academic Freedom and QMUL Academics for Academic Freedom. He writes here in a personal capacity.
