Imagine being a politician who boasts about plans to remove free speech protections from university academics. Now imagine that you are the Secretary of State for Education. Labour’s Bridget Phillipson doesn’t have to. She is both. On Friday morning, with a stroke of her pen (and a one-line statutory instrument) she revoked the order bringing into force the most important sections of the Higher Education (Freedom of Speech) Act 2023, including the much fought-for statutory tort. She also said that she is seriously contemplating repealing the legislation in its entirety.
For those of us who lobbied the Conservatives during the last Parliament to increase the legal protection of free speech and academic freedom on campuses, this is undoubtedly a kick in the teeth. What is more, the Government’s message to genuine liberals within the academy could not be clearer. It is that our concerns are not shared in Whitehall and that, notwithstanding our many evidence-based complaints and campaigns, there is nothing wrong with professors and lecturers being scared into silence over socially salient issues or being dismissed from their posts for daring to possess honest but unfashionable views. The fact that the Education Secretary could not even be bothered to come to the dispatch box of the House of Commons to explain or be questioned about her actions – she produced only a brief written statement and then, sometime later, a sloppily-drafted letter to MPs – serves only to underline her personal contempt for the issues.
To make matters worse, the reasons given by the Education Secretary in support of her decisions are so obviously bad ones. For a start, she says she is “concerned that [the Act] will expose higher education providers to costly legal action”. But even a vague awareness of recent developments within the higher education law world would suggest that the opposite will in fact be true. We could well be heading into an age of quite epic “lawfare”.
The defenders of free speech and academic freedom both within and without academia have never been keener to defend the rights of individuals who they perceive to be unjustly attacked for expressing lawful opinions and questioning received wisdom, and Friday’s events will do nothing to diminish that. Furthermore, almost all the duties which the Higher Education Act wanted to impose on universities and colleges already exist as part of other statutes. What the 2023 law did was to try and introduce a free and speedy complaints process designed to resolve free speech and academic freedom complaints in an efficient and effective manner. Unfortunately, in the absence of such a system, not only will the courts – and in particular the Employment Tribunal – continue to be the battle ground for such disputes to be resolved, and then at torturous length, but, as the pro-freedom jurisprudence slowly but steadily grows, that process will also become a cripplingly and unsustainably expensive one for infringing institutions to endure. With no alternative resolution scheme in place, the upcoming battle between the Open University and its one-time Law Lecturer Almut Gadow, in which she argues that employment law protection is modulated in academics’ favour by existing free speech law, stands as a model for the resource-draining litigation all universities will routinely come to face.
The Secretary of State also claimed “that many in the higher education sector feel that the Act is [too] burdensome”. This is a curious position for her to adopt. Considering that the real innovation of the Higher Education Act was in introducing a new enforcement mechanism for what are already existing duties, one might think that the only reason why universities would find its contents onerous is if, as things stand, their level of compliance with the law is low. In other words, the fact the 2023 Act has been perceived by so many institutions as bringing with it unwanted hassle is expressive of the underlying need for its existence in the first place. In the end, then, all roads it seems will lead us, rather than to what was meant to be a newly beefed-up Office for Students, to court.
Julius Grower is an Associate Professor of Law at the University of Oxford.
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She’s not wrong, just being dishonest about her true motives. Do you think she would be making the same arguments if left-wing speech and speakers were being cancelled from academia?
Ts ts … how nasty of you to claim her opinions were political. They’re obviously not! It’s about protecting Jewish students from spiritual genocide so that some remain for friends of Hamas to slaughter. Just what the greater good of mankind objectively dictates.
I am apparently very nasty – just as well there are so many nice people to counterbalance my malign influence
One of the many things not in the King’s Speech. There is more to come. Fancy calling legislation defending free speech as ‘burdensome’!
In the end, then, all roads it seems will lead us, rather than to what was meant to be a newly beefed-up Office for Students, to court.
This obviously implies no redress for students which is presumably the main motivation of Phillipson. Forced political indoctrination would become really burdensome if it was ok to be ok with being white.
Special interests vs. Special interests.
Wouldn’t it be good if free speech protection was consistent for everyone or better still, we recognise we may hear things we don’t like and may disagree with the opinions of others. Are campuses a bastion of truth, reason and sensibility that should get special treatment?
I suspect a significant driver in this is the amount of income that comes from overseas students, especially China, which is not a beacon of freedom and tolerance to criticism.
Visiting academics or speakers who might be prone to talking about Uighur slaves and environmental destruction, both of which have been well documented, are problematic.