New government powers to financially punish universities and student unions for failing to protect freedom of speech look doomed—without having collected a penny in fines. Labour education secretary Bridget Phillipson announced Friday that she will “stop further commencement of the Higher Education (Freedom of Speech) Act 2023” to consider other options.
The ‘paused’ legislation would have allowed the Office for Students (OfS), a UK regulator, to penalise institutions where, for instance, the cancellation of events under duress threatened free expression.
Britain’s incoming Labour government has presented its move as reducing the administrative burden on the OfS, allowing it to pivot to the potential problem of insolvent universities collapsing. But the devil is in the details: while signalling that free speech is no longer an official priority, the vague “strengthened protections for students facing harassment” are, with all the potential for mission creep that implies.
The Higher Education Freedom of Speech Act (HEFOSA) was given Royal Assent in May 2023, after three years’ gestation as a half-hearted Tory response to campus protests targeting ‘gender-critical’ and other supposedly controversial speakers. It required higher education providers, their constituent institutions, and students’ unions to uphold the principles of freedom of speech and academic freedom. Individuals could also bring lawsuits against institutions that failed to protect their right to free speech. Critics argue that relying “on the law to alter the political climate on campuses is a folly. Free speech cannot be enforced by government decree without ceasing to be, well, free.”
Responses to Phillipson’s announcement show that absolutely no one actually cares about the administrative pressures on the OfS. (Any hypothetical fines levied could add to the risk of university bankruptcies, supposedly.) University and College Union general secretary Jo Grady went through the motions about the changing role of the OfS, before stating:
We have long called for the government to end its obsession with culture wars on campus and are delighted Labour has listened to us and dropped absurd proposals for free speech fines. … These plans were always a Trojan horse for stoking the culture war and it is right that Labour has dropped them.
“Many of us were truly dreading the impact this Act would have, serving to further divide our campuses and put marginalised student communities further at risk,” National Union of Students (NUS) vice-president Saranya Thambirajah told the BBC.
While these higher education figureheads took a cavalier approach to academic freedom, the Free Speech Union tweeted:
The Government’s attack on the Freedom of Speech Act is shocking. If Labour refuses to commence legislation passed in the last parliament, the Free Speech Union will bring judicial review proceedings … There is a free speech crisis in our universities.
To date, the membership of Academics for Academic Freedom (AFAF) has held a range of opinions on HEFOSA, but its director, Professor Dennis Hayes, called this:
A shocking but predictable decision. But the struggle for free speech must go on regardless. Thank goodness for Academics For Academic Freedom, The Free Speech Union and other groups fighting for free speech.
“The NUS was ‘truly dreading the impact’ of the act. Indeed. It may have forced them to defend free speech on campus, something they have been failing to do since 1974,” Hayes also noted.
In a comment to The European Conservative, AFAF called the decision “entirely predictable but shocking to many individuals and groups who had vested five years of work into building the Act,” and added,
Fighting for free speech is never-ending and things may get worse. If, or when, the government introduces new legislation on race, Islamophobia and other DEI issues, this will certainly suppress free speech as it will make criticising certain views more difficult. Such criticism will require academics to speak up ‘against the law’. Will ‘free speech within the law’ mean fewer freedoms under Labour?
