The Higher Education (Freedom of Speech) Act 2023: The Student Response
A Machiavellian Betrayal
On January 15th, the Secretary of State for Education, Bridget Phillipson, set out in the Commons her plans to return the Higher Education Freedom of Speech Act (HEFOSA) 2023, albeit with key provisions removed or altered. This was in light of a chorus of criticism from scores of academics and concerned bodies alike since the Act was halted by Phillipson in July of 2024, mere days before it was to become effective. The consequent fallout from this has now been abated (at least according to the Education Secretary), although many would certainly disagree with her positive assessment.
The Statutory Journey
The Freedom of Speech Act was announced in the 2021 Queen’s Speech to Parliament, with the Department of Education releasing its policy paper on the matter earlier in February under then-Education Secretary Gavin Williamson. The Conservative government set out its statutory response to the widely recognised vicious campus culture of ideological standards and no-platforming of guests, students, and even their own academics through university bodies and student unions nationwide. The next year, the Bill passed the Common's third reading; however, it faced a ping-pong situation between the two Houses after - firstly over Clause Four, which is central to the debate around the paper. Eventually, after some deliberation, it passed through Parliament and was awarded royal assent on the 11th of May 2023, making it an official Act. But what would the bill offer the people on the receiving end of the dogmatic disfigurement of speech liberty? And how? To elaborate, the Act carried considerable legislative weight compared to many past governmental measures to encourage free expression in stifled departments and schools. ‘Encouraged’ being the notable difference, what made the HEFOSA groundbreaking was the assentation it gave to the individual to take on a higher educational organisation in a court for damages (under Clause Four), as well as regulatory changes to the Office for Students (Clauses Five to Ten). A statutory tort would enable staff, students, and visiting speakers to form a legal basis to challenge a university on their failure to comply with their new legal duties – this mandated them all to create new ‘Codes of Practice.’ Thus essentially entrenching the “particular regard to the importance of freedom of speech” in every registered governing body. With this, such bodies formed responses accepting basic speech freedoms under their supposedly soon-to-be newfound legal status. The emphasis on the de jure nature of peoples’ utterances forced the hand of the administrative bureaucracies to change their attitudes. Universities United Kingdom (UUK) (who were opposed to the Act passing) made clear the seriousness of the provisions: “HR [Human Resources] directors may wish to carefully consider the implications of freedom of speech and academic freedom for staff and review policies in this light.” Theoretically, post-HEFOSA enforcement would help avoid situations akin to the Kathleen Stock or Jo Phoenix cancellations, although constitutional requirements did not end there. Additionally, the Office for Students would have expanded responsibilities in the name of free academic expression under the provisions of a “free speech complaints” scheme. A special ombudsman (“Director for Freedom of Speech and Academic Freedom”) would direct investigative activities into any reasonable infringement of a person’s liberties by an educational body. As part of this new direction, the OfS could use its overwatch powers to sanction, fine and go as far as deregistering institutions. The combination of the blanket tort provisions combined with the consistent overwatch of the public body regulator would have meant that those put-down, those oppressed by organisations far larger than them, could finally have backup, backup with teeth. Yet, this law would have been most significant for the students, who are most vulnerable to mobbish cancellation, a life-altering event, not least due to what may have been argued to be the most revolutionary alteration from past similar spirited regulations, the inclusion of all student unions in rules set out under HEFOSA. Student unions are central to student life and experience, which had previously lacked legal accreditation. Little better illustrated this than the case of fellow SAFAF representative Connie Shaw; her Kafkaesque removal from her Leeds University Union Student Radio role due to posting content pertaining to her gender- critical views - all on her personal accounts, it should be added - demonstrates the ease at which spiteful, arbitrary treatment can be dished out at the whim of the unions. She has been one of many similar examples; what HEFOSA bestowed was signs of change on the horizon, alas to be unfulfilled.
During the summer of 2024, like the events that inspired the legislation in the first place, the Act was unceremoniously cancelled at the last minute. Instead of an infuriated mob of woke activists, this time, it was the new Labour Education Secretary displaying her own dedication to dogmatism. Supported strongly by many university organs, she halted its movement into effect, primarily justifying her actions by citing issues over hate speech and its harmful effects, plus litigation (and thus fiscal) concerns for student bodies and their institutional counterparts. Positive comments came from academic associations, such as the Russell Group, who stated her decision was “the right one, allowing time to understand its impact and ensure new legislation is fit for purpose and proportionate.” Thankfully, the opposing defenders of free expression are far from flaccid; a resounding uproar was heard across the papers, societies, and opposition politicians. One of the leading voices in this movement for restoration was Professor Abhishek Saha of Queen Mary University of London, who gave his keynote speech on the continuing resistance to the legislative de-platforming at the annual AFAF conference. Scores of concerned individuals, many seeing their years of hard lobbying go down the drain of constitutional history, reiterated the essentiality of a significant statute to grapple with the intersectional snake of social justice. Dr. Prakash Shah, also of Queen Mary University, along with countless more, signed cross-institutional letters to the media pleading for the Department for Education to see reason. The nature of Phillipson’s behaviour did not go unchecked either due to the work of the Free Speech Union, launching a legal challenge to the secretary in the High Court. Judicial review had been looming large over the secretary, and again, like many within universities, she left it to the last minute, U-turning from her previous decision within a few weeks of the FSU case being heard. On the 15th of January, Phillipson proclaimed in Parliament the return from the dead of HEFOSA, unsurprisingly with a catch or two. She detailed her amended Act “that actually works” as it returned to the House; in her thinking, the original HEFOSA “simply did not rise to the challenge” due to “duties on student unions, a tort clogging up the court system, and the Office for Students obliged to consider a vast number of complex complaints.” Thus, to avoid such “clogging,” the clauses have been corrupted, and to avoid “duties”, they’ve been degraded, and to disable “vast” complaints, the vigour of the scheme has been eviscerated. To summarise, the statutory tort has been repealed, along with all duties for student unions; similarly, the OfS clauses have been amended to no longer require every complaint to be assessed – additionally eliminating its potential position as the first regulatory port of call for students, instead forcing them to go through the Office of the Independent Adjudicator first.
Where Are We Left Now?
Nearly all HEFOSA supporters are rightfully saddened and disappointed by what is an impossible-to-deny watering down of the Act, especially those who campaigned most virulently for it. Professor Saha summarised the news as “bittersweet.” This is certainly the most reasoned way to assess the new regulatory reality in academia. However, the ardent among us will struggle to see it as more than anything bitter-bland. While it is better to have an ombudsman at the OfS, and new, strongly worded statements transcribed from Act to codes of practice than to not, it cannot fail to negate the obviously toothless makeup of this now twisted bill. For students, this feels like a Machiavellian betrayal – and not one to be surprised by - and an affront to those who have been on the frontline of this cultural, institutionalised war on essential values.
Some may say this is still a small victory; this sentiment is appreciated and not baseless by any means. Nevertheless, it is sceptical pessimism that delivers genuine understanding in life. Overall, this was not a minor success for free speech, free thought, and free being, but a victory for Bridget Phillipson and all that she stands for, along with the rest of the government. Unlike some of her cabinet colleagues, her intelligence shouldn’t be doubted; she has the competency to be effective and relatively tactful. Parliament almost has a Labour supermajority, meaning the immediate future likely foresees little change coming from the Department of Education, ideologically speaking, and Phillipson shows no indications of moving yet or being moved. Though politics is defined by living by the sword and dying by the sword, what is now even more certain is the uphill battle free-thinking students and academics share collectively. Accordingly, our convictions stand strong, made stronger by every hurdle faced, our faith in free will even more bonded by every disagreement, and our determination to show that free speech is anything but a fad.
Authored by J.E Long, Student at Queens Mary’s London and SAFAF Member