Free speech complaints ‘not going away’ despite law pause

Labour’s decision to delay – and potentially repeal – new freedom of speech legislation has been hailed by some as bringing an end to the culture wars on campuses.

The eye-catching intervention by education secretary Bridget Phillipson as she announced an “unburdening” of the Office for Students (OfS) means a planned complaints scheme for people who feel their academic freedom or free speech rights have been impinged by universities may never see the light of day.

While the potentially messy repercussions of this initiative seem to have been avoided for now, the act may yet be handed a reprieve, after supporters of the legislation signalled their intention to challenge Ms Phillipson’s decision legally.

Bryn Harris, chief legal counsel of the Free Speech Union, which has sent a pre-action letter to the secretary of state, said universities had been plunged into a position of “renewed uncertainty”, not knowing if the act would be delayed, modified or abandoned entirely.

Either way, “the complaints aren’t going to go away”, Dr Harris said, adding that universities could find that the relatively low-cost complaints scheme was a preferable option to the more expensive alternatives such as tribunals, discrimination cases and judicial reviews they could now face.

Regardless of what happens to the legislation, institutions have been urged not to abandon efforts to tackle some of the issues that underpinned the perceived need for the scheme.

Free speech concerns cannot be “relegated to the history books” because the act could be struck out, said Diana Beech, the chief executive of London Higher, which represents universities in the capital.

“The higher education sector in England needs to use the reprieve it has been granted to get its house in order and show it has the mechanisms and processes required to tackle potential infringements of free speech effectively,” she said.

“Failure to do so will only put free speech issues back in the headlines and pressure will mount for the reintroduction of statutory duties which, next time, might not sit with a regulator that understands the nuances of university autonomy and the thorny issues unique to the sector.”

Ms Phillipson intervened to allow the OfS to focus on its core duties, but not before the new position of director for freedom of speech and academic freedom was created on the organisation’s board.

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This role, which recent accounts show has a salary of between £105,000 and £110,000, is held by University of Cambridge professor Arif Ahmed for a six-year term and he now faces the “absurd” situation of ministers creating his job and “then taking away his power to do it”, said Dr Harris.

Some have urged Professor Ahmed to continue his work, pointing out that existing legislation provides scope to further regulate universities on free speech.

Writing for Times Higher Education, James Murray, legal director of Doyle Clayton Solicitors, said that that “existing law is sufficiently complex and underappreciated” and so there was a role for a director to interpret it for universities and “spearhead” the OfS’ general approach.

But with the OfS battling financial uncertainty in the sector, Dr Beech said that regulating free speech “was always going to be superfluous” to the core regulatory duties of the regulator and so she expected Professor Ahmed to “take more of a back-seat role in the leadership of the regulator in the immediate term”.

This could, she said, give him time to “flesh out the existing guidance and complaints scheme more fully”.

tom.williams@timeshighereducation.com