Last month in parliament the education secretary, Bridget Phillipson, announced that provisions of the Higher Education (Freedom of Speech) Act 2023 - previously put on ice when Labour entered government - would be reheated and dished out after all.
Reactions to the move have been mostly positive, with proponents welcoming the positive obligations placed on universities to protect free speech and lively debate on campuses. Responsibility will fall on the Office for Students (OfS) to ensure compliance and enforcement in respect of several of the requirements.
'In' is the requirement that all universities must have robust codes of practice to ensure the protection of free speech, as well as powers to the OfS to investigate and issue fines for breaches. 'Out' (or at least, still on ice) is the statutory tort for breach of the free speech duties and obligations on student unions amidst concerns that the provisions would result in excessive financial and administrative burdens through an increase in litigation. It seems the lawyers are to be the first casualties of the pared back version of the act.
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In a statement designed to offend some students, Phillipson announced that academic freedom was 'much more important than the wishes of some students not to be offended'. In reality, however, something close to a consensus has developed in respect of the issue of freedom of speech in universities. The pendulum, having swung far in the direction of overzealous censorship, is now returning to a more permissive place. The main criticism from the opposition is that this watered down version of the act lacks teeth. Although, it seems a reasonable balance has been struck for now. Minority groups have also been supportive. The Union of Jewish Students has welcomed the revised act, stating that it 'takes into account the concerns raised by UJS and other parties.'
It is unsurprising that the debate around freedom of speech itself should be university focused. However, the evolution of the debate should include a review of increasingly draconian criminal laws, which arguably stifle legitimate protest and online discourse. Take the Online Safety Act 2023’s rehashed false communications offence, for example. The offence criminalises the conveying of false information intended to cause non-trivial psychological or physical harm to a likely audience. How this is to be policed in the 21st century remains unclear. Several failed investigations in the wake of the 2024 riots highlighted the difficulties in prosecuting offences that rely so heavily on the knowledge and intention of the suspect. Recent Scottish hate crime laws cast the net even more widely, criminalising ‘stirring up hatred’. Laws that mean different things to different people lack legal certainty. This is problematic.
Universities can be both safe places for minority groups whilst encouraging and facilitating robust debate. A prerequisite for the latter is allowing people to be ‘wrong’. This basic freedom should not be the preserve of students and academics only. Hopefully, an unintended consequence of the education secretary’s warmed up university provisions is wider debate around issues of freedom of speech on and off campus.
David Hardstaff is a partner at BCL Solicitors LLP specialising in criminal law and university misconduct proceedings
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