The freedom of speech act may be gone, but existing law is strong

The UK government’s shock move late last month to cancel the commencement of the Higher Education (Freedom of Speech) Act 2023 was met with relief in some quarters of the sector. There was a sense that incoming compliance burdens would be lifted – particularly if, as was strongly implied, the act is ultimately revoked in its entirety.

However, much would be lost if that transpired. For instance, the act’s ban on universities passing on security costs to event organisers (barring exceptional circumstances) and its new duties to explain and promote the importance of free speech were seen as measures that, over time, would calm culture-war issues on campus.

More significant are the lost enforcement mechanisms. Alongside a tort enabling direct enforcement, the act had been intended to introduce a cheap and relatively informal complaints scheme to resolve disputes.

Nevertheless, the Office for Students’ task relating to free speech and academic freedom remains as urgent as ever, and the sector’s relief suggests an underappreciation of the scope of the existing law.

For instance, since universities are considered public authorities, the Human Rights Act obliges them to comply with the European Convention on Human Rights. And the convention’s supercharged protection of academic free expression is even stronger than what the new act would have required. It is the golden sword and shield of academic free expression, key elements of which include a right for academics to criticise their own institutions and even to damage their reputations. Almost no interference whatsoever with academic freedom of expression will be tolerated.

We should also consider the existing legal duty, which requires universities to take “reasonably practicable steps” to secure free speech within the law. This applies to all aspects of campus life, including not creating a chilling effect to dissuade future speakers, and it is nearly identical in scope and effect to what would have been the core duty under the new act.

Indeed, the OfS’ existing registration conditions include taking reasonably practicable steps to secure free speech and to secure academic freedom for academic staff: obligations were copied and pasted into the act. The fact that the substantive nature of this core duty is unaffected by the loss of the act was recently reflected by the High Court in a judgment regarding the University of Birmingham and its pro-Palestinian protest camps. In that case, the existing duty and the core duty of the act were effectively treated as interchangeable in assessing whether the university had complied with its obligations before ejecting protesters from its land.

Moreover, many technical aspects of the OfS’ draft guidance on freedom of speech, published for consultation in March, still accurately reflect the law and could be restated under current powers as the basis for regulatory action.

This includes the OfS’ guidance on how free speech duties interact with the Equality Act’s provisions, particularly regarding the harassment of protected categories of people and the public sector equality duty (PSED) to advance equality and good relations between such people and the wider population.

Under both the current law and the act alike, there is considerable difficulty in establishing the objective requirements of the Equality Act’s harassment provisions in an academic context, particularly where academic free expression is concerned. This wider legal context is also highly relevant when considering the PSED, which, it must be remembered, is only a duty to take “due regard” rather than a duty to secure any particular outcome, as is the case with respect to free speech. The majority of what the draft guidance on free speech says on this issue is legally correct; in large part, it could be restated for the existing regime. 

Although the free speech complaints scheme might now be gone, students will still be able to use the complaints scheme of the Office of the Independent Adjudicator. Staff can take complaints to the employment tribunal, where their cases will be judged against the complex interactions of free speech law, equality law and other employment protections. The costs to universities of responding to and dealing with such claims will be high.

So, overall, the existing law and regulatory mechanisms justify a bold approach by the OfS. And irrespective of whether the regulator sees fit to reissue tweaked guidance, the sector should continue to be vigilant in defence of free speech. The law exists irrespective of OfS guidance and could be challenged and enforced in the tribunals and courts. 

What is also clear is that existing law is sufficiently complex and under-appreciated that the role of director of free speech and academic freedom is essential. The creation of that role – currently occupied by Arif Ahmed – is one of the few pieces of the act to have already been commenced and should not be repealed.

Such a figure is required to spearhead the OfS’ general approach to fulfilling its strong existing obligations around protecting free speech and academic freedom.

James Murray is a research fellow in law and policy at the University of Buckingham and legal director at Doyle Clayton Solicitors.