After much speculation, a bit of ranting and raving from some quarters, a few strongly worded round robin letters with some big name signatories and the prospect of court action, the Government has announced that the Higher Education (Freedom of Speech) Act 2023 will be brought into force. It will be a little different from the original Act but the fundamentals remain in place. I’m still not at all convinced it is necessary or will do anything to advance and support free speech and academic freedom in the sector – rather it will unhelpful increase the already excessive regulatory burden on institutions – but I do understand why the Secretary of State for Education has gone down this route. 

Still unnecessary 

I would argue, still, that the legislation is unnecessary. The 1986 Act has been in operation for nearly four decades now and worked pretty successfully. The Act was intended to address the central issue of speakers being denied a platform and since then staff in universities and students’ unions have become used to dealing with these matters. Whilst there is a lot more noise in the media and on social media about someone having been denied a platform or another speaker being prevented from presenting certain views in a university, the fundamentals haven’t changed. The reality is that many thousands of speaker events happen every year on campuses without incident. These things are part of the routine business of campus life with students or staff inviting speakers, academic, cultural, political or celeb, to speak and debate at meetings and events of various types. Free speech is a commonplace and organic part of university operations.

The anecdotes about why someone appeared to have denied the opportunity to speak are often a bit hazy on the details so it can be difficult to establish the facts. There are many possible reasons including a simple failure to follow the necessary procedures for visiting speakers (operated for many years as a result of the 1986 Act). Where celebrity speakers are involved there can sometimes be more logistical challenges around transport, accommodation expectations, even a fee being required, all of which can end up scuppering an event. And that’s before you get to the other tricky stuff relating to ticketing, health and safety matters and the format of the event. Security concerns around controversial speakers can be challenging too as universities have a responsibility for the safety of speakers and audiences and making the necessary arrangements can be costly. And the problem cases are tiny in number. The data shows that less than a quarter of one percent of events do not proceed for one reason or another (based on English institutions’ returns to the Office for Students in 2019/20). But if it sounds like someone’s free speech is being stifled, why let the details get in the way of a good story?

Promoting free speech

I do think the debate around the 2023 Act has served one valuable purpose though in encouraging universities to focus not only on protecting free speech but promoting it too. Despite having a very strong track record in relation to free speech the sector and institutions seem to have been somewhat reluctant to trumpet this. Universities are genuinely the real champions of free speech and the places where controversial ideas are shared and debated and where facts and rational argument matter more than personalities. This promotional role really does matter but it doesn’t mean that anyone, should they wish, is entitled to rock up and demand the right to speak. As Professor Shitij Kapur, Vice-Chancellor & President of King’s College London, recently wrote in the Telegraph:

Universities, however, are not there to function as a Speakers’ Corner, where anyone can stand up and express an opinion that is not necessarily supported by facts. If academic freedom is to mean anything, it must be accompanied by the academic obligation for ideas and claims to be accompanied by evidence and reason. Proponents have an obligation to engage and respond to those questioning their assertions and conduct that debate and discourse in a civil manner.

A similar position is set out in the University of Nottingham policy on Free Speech and Academic Freedom (which I was involved in drafting and updating in recent years). And as Nick Hillman observed a while back:

It is because universities are so important that they have found themselves at the centre of the storm about wokery and cancel culture and at the heart of the so-called ‘free speech crisis’. Even people who rarely visit a university campus understand that what goes on there matters to the whole of society.

This stuff really does matter.

Making the Act work

The Government is essentially arguing that it has taken out of the Act some of the most burdensome and least workable elements. This is true. Eliminating the tort, taking students’ unions out of the direct line of fire and deploying an existing route for student free speech complaints (via the Office of the Independent Adjudicator) is undoubtedly an improvement on where we were when the Act was approved.

The Government’s statement includes a number of broad observations about planned implementation:

The Office for Students will have the power to investigate complaints over breaches of free speech from academics, external speakers and members of universities, as well as issuing fines.

The Act will require all universities to have robust codes of practice to ensure the protection of free speech, which will be enforced by the Office for Students (OfS).

The new workable, robust complaints system will uphold academic freedom without exposing universities to potentially disproportionate and crippling costs that could have forced them to divert cash away from students.

Universities who flout the rules will be publicly held to account and could end up paying compensation, risk facing fines and the suspension of their registration, in the most extreme circumstances.

There is more to it than this but the essence is that the OfS and its Director of Free Speech and Academic Freedom will be dealing with a host of individual complaints from the kind of people who feel most strongly about these matters and will always believe they have been denied a platform despite the many other outlets they have to express their views. Responding to these as well as implementing a code of practice and managing with student concerns via the OIA will still be costly and time-consuming for universities. Just not quite as burdensome as had been feared. So the sector should be at least a bit grateful for this. There is still the potential for cost, confusion, burden and legal wrangling therefore (at least some of those student cases going to the OIA will also be staff cases being considered by the OfS) so we are not out of the woods yet. It is undeniably an improvement though on the original Act.

It is not completely clear to me from the announcement how this will work in Scotland in terms of student and staff complaints or in relation to staff concerns in Welsh institutions. Presumably the OfS and OIA remits will be extended in this respect (this may have been covered in the original Act).

Finally, the Government statement says:

In making changes to the future of the Higher Education (Freedom of Speech) Act 2023, the Government will ensure that the right to academic freedom is rigorously defended, without compromising the safety of students and staff, or taking away vital resources from an already stretched sector.

It is positive that the cost of the regulatory burden is recognised here. But the implementation of the Act, even in a streamlined and rationalised form, will still be a real cost to institutions. At a time when it can least be afforded.

Living with the reality

The sector could continue to argue that this legislation is unnecessary and could in fact now be implemented instead as additional guidance rather than regulation, but the ship has sailed. Institutions will have to focus on making this all work in the most efficient way and adapt and extend existing procedures which we know already provide well for ensuring free speech on campuses. The regulatory burden will grow, inevitably, although the impact should not be as great as it was likely to be under the original Act now that some of the most extreme elements have been eliminated.

The other important factor to consider here is the cost and effort required on the part of the principal regulator, the OfS (and any other body outside England unless the OfS is acting for all the nations), in managing the complaints it will receive. The OfS clearly has other pressing priorities, not least working out how to engage with the impacts of institutions in financial distress, so will have to reallocate resource to support the implementation of this legislation. The sector will certainly not want to be paying for this through additional subscription fees.

But universities and colleges will have to get used to living with all of this now. There will still be media attention on high profile cases and there will undoubtedly be legal interventions by those who believe the revised Act does not go far enough and want to push things to the limit. Institutions will have to get a lot better at publicly asserting their commitment to free speech and their central role in promoting and protecting it. They will also be getting on with the vital, difficult and generally unseen business of managing good campus relations day to day. And ensuring too that students are equipped themselves to deal with all of these issues and encouraged to engage in open and critical dialogue in the classroom and beyond.

So, everyone will just have to get on with this. I really do hope that, having eliminated some of the more costly and burdensome elements of the Freedom of Speech Act, the Government will find other ways to reduce the regulatory burden on institutions. And if they are looking for ideas, here are some suggestions I made earlier…

Cutting Regulation is Still Saving Money