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Seeking the truth:
Academic freedom in UK campuses
The right to have free and open debate is an important pillar in higher education institutions everywhere. Last month, the UK government made it a requirement for universities and students' unions in the region to protect freedom of speech under the Higher Education (Freedom of Speech) Act 2023.
By John O'Leary, Contributing Writer
"The Act would put more responsibility on universities to ensure students are able to speak freely in and out of the classroom, while offering more protection for academics who teach material that may offend some."
Universities have been at the centre of so-called ‘culture wars’ in much of the Western world. But only in the United Kingdom has the government found it necessary to change the law to protect freedom of speech in higher education specifically.
The passage of the new legislation has been anything but smooth, occupying no fewer than five Education Secretaries since Sir Gavin Williamson set out the plans early in 2021. At the chaotic end of Boris Johnson’s premiership, there were three holders of the office in four days.
Mr Williamson, as he then was, set out to put an end to “unacceptable silencing and censoring” on campuses. Individuals who were prevented from speaking would be able to sue universities for compensation.
The announcement followed a number of well-publicised incidents, including Oxford University students’ cancellation of a speech by Amber Rudd, the former Home Secretary, because of her role in the treatment of migrants. But the government-appointed Office for Students (OfS) found that only 53 of more than 62,000 external speakers were blocked by universities or student unions in 2017-18, the most recent year for which figures were available.
Over the two years of often rancorous debate on the legislation, the power to sue institutions was watered down, to the displeasure of hard-liners. The Higher Education (Freedom of Speech) Act, which became law on May 11, 2023, permits claimants to seek compensation in the courts only as a last resort, after first pursuing complaints through the procedures of the relevant university and the higher education regulator. Those taking action are also required to prove that they had suffered a loss.
The government says the Act would put more responsibility on universities to ensure students are able to speak freely in and out of the classroom, while offering more protection for academics who teach material that may offend some students. It would strengthen the duties already in place to protect freedom of speech and bring about a change of culture on campuses.
"A university is not a club. It is not a political lobby. It is not a seminary. It is not a ‘brand’. It exists to seek and speak truth, whatever it costs and whoever it upsets."
The Act requires universities, colleges and student unions in England to take steps to ensure freedom of speech, as long as it is not unlawful by harassing others or inciting violence or terrorism. Host authorities can decide whether the speech is lawful and to publish a code of practice for freedom of speech on campus.
A new Director for Freedom of Speech and Academic Freedom will oversee all the OfS free speech functions, including a new complaints scheme and investigations where universities are accused of breaching their duties under the Act. In particular, universities will not be allowed to use non-disclosure agreements to silence people who raise complaints of sexual misconduct, abuse, harassment or bullying.
The OfS is still consulting on how the new duties should be regulated and how the new complaints scheme should operate. However, Cambridge philosophy professor Arif Ahmed, who has been chosen as the first Director for Freedom of Speech and Academic Freedom, has promised to act impartially while taking a hard line where necessary. “I have no interest in promoting the views of this or of any future government. I have no interest in any ‘culture war’,” he said after his appointment.
Writing in The Times, Professor Ahmed said: “A university is not a club. It is not a political lobby. It is not a seminary. It is not a ‘brand’. It exists to seek and speak truth, whatever it costs and whoever it upsets. Therefore, without freedom to explore controversial or ‘offensive’ ideas, a university is nothing.”
"Without freedom to explore controversial or ‘offensive’ ideas, a university is nothing."
Those who run universities, however, are concerned that they will be at the mercy of conflicting pressures and potentially contradictory legislation. Longstanding ‘Prevent’ legislation requires them to block potential supporters of terrorism, while the international definition of antisemitism, championed by ministers, would exclude suspected holocaust deniers at the same time as they are expected to open their doors to all strands of opinion.
Universities UK, a collective voice of over 140 universities in theUK, has been careful to work with the government during the passage of the new legislation, although many of its members consider that the scale of the threat to free speech has been exaggerated. The latest OfS survey showed that only 0.8% of the 31,545 external talks planned in 2021-22 failed to be approved.
There has been no lessening of media and political interest in the topic, however. Most of the recent incidents have involved gender controversies, most notably the student-led campaign against Professor Kathleen Stock in 2021, who left her post at Sussex University after being accused of transphobia and was the target of more protests when she was invited to speak at the Oxford Union. The Oxford talk went ahead in a highly charged atmosphere, with Rishi Sunak, the Prime Minister, taking up Dr Stock’s case.
Lawyers expect the Act to encourage high-profile challenges with little likelihood of mediated settlements. Smita Jamdar, Partner and Head of Education at the law firm Shakespeare Martineau, says that the most likely initiators of cases would want to test the new legislation and “make a point” and therefore be less amenable to settling. Some cases might involve “competing factions”, she says, with universities facing a complaint from one side as they sought to appease the other.
Bryn Harris, Chief Legal Counsel for the Free Speech Union (FSU), one of the groups that backed the legislation, says the first case might involve an injunction to prevent the cancellation of an event or the expulsion of a student. The FSU would be prepared to help with such a case if it was merited and if assisting would further the promotion and defence of free speech.
However, James Murray, Managing Associate at law firm Mishcon de Reya, says some universities appear to believe that little would change because the new legislation is built on existing duties. In fact, it could represent a “seismic event for universities” which would require considerable work to reach a baseline standard of compliance with the law. “There’s a lot to do, and the head in the sand attitude that I’ve seen a lot at the higher levels of universities is something that is going to have to right itself pretty quickly as they get to grips with it”, he says.
