Universities face uncertainty as ‘freedom of speech’ act put on hold

The Act was introduced by the previous Conservative government with the intention of addressing what they perceived as a growing issue of so-called “cancel culture” on English university campuses.

However, upon taking office, the Labour government has decided to pause the Act’s implementation stating it has concerns that the statute would potentially place a legal requirement on universities to give a platform to extremist speakers such as those who deny the Holocaust, as such views are not presently illegal. The government has said it will “take stock and listen to concerns’” raised by the university sector.

Previously, higher education expert at Pinsent Masons, Julian Sladdin, said the Act would require a “very delicate balance” to be struck between “the need to facilitate an individual’s lawful expression of their views, even if they are unsettling or distasteful to others, and the right to lawfully object or protest”.

“As the previous government found, trying to reach a satisfactory outcome for higher education is unlikely to be an easy task or meet the expectations of everyone within higher education,” said Sladdin.

Once the Act is in force, higher education institutions (HEIs) in England will face increased obligations to protect and promote free speech and academic freedom, rather than simply ensuring free speech on their campuses. The Act also strengthens rules requiring HEIs to consider whether speech is lawful by taking into account criminal law, such as the 1986 Public Order Act and the 2010 Equality Act, as well as publishing a code of practice for freedom of speech on campus.

The Act would also have seen a new ‘director for freedom of speech and academic freedom’ appointed to manage a free speech function of the Office for Students (OfS). Students, staff and visiting speakers would be able to bring claims through a complaints procedure as well as investing instances in which universities are accused of breaching their duties under the Act. These regulatory requirements would have been effective from 1 August.  

The decision to halt the Act has been met with mixed reactions. Former Conservative ministers and free speech activities have criticised the move, describing it as “chilling” as well as a potential threat to academic freedom. The Free Speech Union has also served a letter before action on the secretary of state threatening judicial review. On the other hand, some academics and university administrators across England have welcomed the pause.

Sladdin said: “Concerns remain about the whether the statutory tort and OfS complaints scheme will place a disproportionate burden on institutions. There has also been a perceived lack of clarity around the implementation timetable, effective compliance expectations and how institutions can best mitigate the risks which may arise in trying to ensure and promote free speech in line with the enhanced duties created by the Act. However, simply reverting to the previous legislation governing free speech and academic freedom may also be unattractive to others in the sector who felt that increased protections of their rights of free speech and academic freedom were long overdue.”

Relying on the previous law may result in some practical implications. For instance, it will leave open the question of how student unions and constituent colleges are to be regulated and remove the recently introduced statutory requirement against non-disclosure agreements - albeit this will still be an OfS regulatory requirement in relation to harassment and sexual misconduct cases.

The Labour government has not ruled out the possibility of revising or even repealing the Act. Decisions are set to be made following further consultations with stakeholders across the English higher education sector.