Letter to the Education Secretary about the Higher Education (Freedom of Speech) Bill

In a?letter?coordinated by the FSU and sent to the Secretary of State for Education, Gillian Keegan, more than 50 academics urged the Government not to water down the Higher Education (Freedom of Speech) Bill in response to intense lobbying from the higher education sector (Telegraph).

We decided to pull this letter together in response to news that the government was considering making concessions to universities regarding powers contained in clause 4 of the legislation that would enable academics and students to sue institutions for breaching their free speech rights. There are several laws protecting academic free speech already on the statute books, but the problem is that they are usually ignored because there are now adequate enforcement mechanisms. Presently, for instance, academics can seek a judicial review if their rights are violated, but that typically costs hundreds of thousands of pounds, which clearly isn’t viable for most academic staff.

The Higher Education (Freedom of Speech) Bill is particularly promising in that regard because it contains plans to create a robust mechanism for enforcing those existing laws via the introduction of a statutory tort to allow civil claims to be brought in the County Court against Higher Education Providers and Student Unions if they breach their new free speech obligations. That’s a key enforcement mechanism if higher education providers are to take their new free speech duties, as set out in the Bill, seriously. As our Chief Legal Counsel Bryn Harris pointed out to the Times Higher, the functional significance of the tort is that rather than making disputes costlier and nastier, it would, simply by dint of existing, deter universities from riding roughshod over free speech.

As an organisation we feel strongly about this. The FSU gets about 50 cries for help a week, many of them from students and academics who got into trouble simply for exercising their lawful right to free speech on campus. If the Bill is passed as it stands — i.e., with the statutory tort remedy in place — then the vast majority of students and academics who find themselves in a similar situation in the future will undoubtedly be in a stronger position.

Signatories of the FSU coordinated letter include Prof Kathleen Stock, the philosophy professor who was hounded out of Sussex University due to her gender critical beliefs (Unherd), and Prof John Finnis, an Oxford law professor who faced calls to be removed from his post because of his views on homosexuality (Oxford Mail). They also include Dr Heather Brunskell-Evans, who was no-platformed by university students at King’s College London after she discussed transgender issues on a radio show (Times).

In the letter, the academics say that critics of the Bill “underestimate the scale of the free speech crisis in our universities” because “for the most part” they are “ideologically aligned with the enforcers of intellectual orthodoxy and therefore have not had to self-censor or contend with prolonged investigations merely for expressing their opinions, let alone the bullying and intimidation faced by academics who challenge the prevailing wisdom on campus about trans rights”.

Stirring stuff, of course, and we think it dissuaded the Government from scrapping the tort altogether, which the higher education sector has been furiously lobbying for. Instead, the Government tabled?an amendment to the Bill in the Lords seeking to strike a compromise with its critics (the amendment can be found here, close to the top of page 3). The amendment won’t ditch the statutory tort entirely, but will instead reduce it to a weapon of last resort, whereby students and academics can only sue universities if they’ve exhausted all the complaints procedures. That is worrying since it gives universities the whip hand. As Professor Jo Phoenix, who was defended by the FSU after she was no-platformed by Essex University, pointed out to the Telegraph, that would be “an excellent way that university managers can kick the problem in our universities into the long grass”.

One of the other things the Bill will do is create a Director for?Freedom of Speech and Academic Freedom role in the Office for Students. This new office holder will have the power to investigate complaints, which is obviously welcome. But the government amendment, by making it harder to sue universities, makes the enforcement of the new free speech duties in the Bill contingent on whoever is appointed to that new role. We have no guarantee it will be someone who cares about free speech, which of course brings us back to Professor Phoenix’s point — if the culture at the top of the proposed new regulatory system is one in which safetyism is favoured above academic freedom, then it’s likely to make it easier for university managers to, as Jo puts it, kick the problem “into the long grass”.

The FSU’s position is clear — the only way to make sure universities uphold the new free speech duties in the Higher Education (Freedom of Speech) Bill is to give aggrieved parties the option of suing them in the county court. Without that, the Bill is unlikely to make much more difference than the Education (No. 2) Act 1986, which imposed a legal duty on universities to uphold free speech, but was never taken seriously by the sector. Why? Because there was no accompanying enforcement mechanism.

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