Who is protecting free speech in English universities?
In another of our ‘long reads’, Abhishek Saha provides a personal overview of the state of free speech in England*
In May 2023, the Higher Education (Freedom of Speech) Bill completed its long journey through the UK parliament and entered into force. The resulting Act is a hugely significant piece of legislation that sets out new duties for universities and student unions in England with respect to the freedom of speech and academic freedom of staff, students and visiting speakers.
The most important parts of the Act are the new core duties for universities set out in its sections A1, A2 and A3. The A1 duty requires the governing body of each university to take steps to secure freedom of speech within the law for its staff, students and visiting speakers. With respect to academic staff, this duty includes securing their freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of loss of their jobs or privileges. For visiting speakers, the duty stipulates that they must not be denied the use of university premises due to their ideas or opinions. The A2 duty requires the governing body of each university to maintain a Code of Practice detailing how its values uphold freedom of speech and the procedures to be followed by staff and students in relation to meetings and events on campus. Each university must bring to the attention of all its students the provisions of the A1 duty and this Code of Practice at least once a year. The A3 duty requires universities to actively promote the importance of free speech and academic freedom, the goal here being to create a culture of free speech on campus. Furthermore, the Act creates a new position of Director for Freedom of Speech and Academic Freedom (the Director) who will sit on the board of the Office for Students (the independent regulator for higher education in England).
The duties contained in the Act may be enforced in three main ways: (1) a new free speech “complaints scheme” to be overseen by the Director; (2) the general enforcement powers of the independent regulator (which can include fines and even suspension of registration of universities); and most significantly (3) a new “statutory tort” provision which allows an affected person to go to court and bring proceedings against a university for breaches of its A1 duties.
The new Act is not the first law to tackle the issue of free speech in English universities. In fact, the much older Education Act 1986 already imposed a legal duty on universities in England and Wales to uphold free speech, but this mandate proved to be toothless because the only way of forcing universities to comply was to bring a judicial review in the High Court, a lengthy, risky and highly expensive procedure. In contrast, the duties contained in the new Act may be enforced in multiple ways, as detailed above. Due to the new regulatory regime and enforcement mechanisms, the Act is expected to have a great deal of impact on the sector. James Murray, a leading lawyer specialising in academic freedom issues, has described the Act as a seismic event for universities in England.
The Bill for this Act had an unusually long journey through parliament. Following a number of high-profile cases of de-platforming of speakers at universities, think tanks Cieo, Policy Exchange, and Civitas published independent reports in 2020 highlighting censorship on UK campuses and chilling effects on academic research and teaching. In response, the UK government issued a policy paper in February 2021 setting out proposals to strengthen free speech though a new Bill. In May 2021, the promised Bill was introduced in the House of Commons (the lower house of the UK parliament). Free speech organisations welcomed the Bill but it was opposed by groups such as the National Union of Students who said there was no evidence of a freedom of speech crisis. The influential Russell Group (representing twenty-four top research-intensive UK universities) claimed that the duty introduced by the Bill to promote free speech might hurt universities’ efforts to advance equality. The Bill went through several amendments at the House of Commons over the next several months. For example, the academic freedom protections of the Bill originally covered only an academic’s “field of expertise”, but this restriction was removed in June 2022 to ensure that extramural speech is protected.
On 28th June 2022, the Bill was debated for the first time in the House of Lords — the upper house which has many members with connections to university leadership — where it faced significant opposition. The statutory tort provision of the Bill, which allows complainants to go to court for breaches of free speech duties, proved to be especially controversial. In the face of demands that the Bill be weakened, the Free Speech Union — a mass-membership UK organisation that stands up for the speech rights of its members and advocates for free speech more widely — organised a letter in November 2022 signed by over 50 prominent UK academics urging the government not to water down the Bill. Despite this, on 7th December 2022, the House of Lords voted to remove the statutory tort clause completely, rendering the Bill ineffective and sending it back to the Commons. The Russell Group welcomed this as a sensible step.
Thankfully, that was not the end of the story.
Claire Coutinho, the current UK Secretary of State for Energy Security and Net Zero, was until August 2023 a junior minister in the Department of Education. A graduate in mathematics and philosophy from Oxford, her responsibilities at the education department included freedom of speech, which made her directly responsible for the Bill. On 29th December 2022, I sent the minister a multi-signatory letter signed by me and 14 other academic mathematicians. We wrote to her as fellow mathematicians to describe the erosion of academic freedom in universities, the impact this was having upon the mathematical sciences, and the importance of ensuring that academic whose free speech rights are violated should have the right to have a claim heard by a transparent court of law. To my pleasant surprise, a few weeks later, Coutinho replied to our letter affirming her strong support for academic freedom and requesting a meeting with me to discuss these issues further. I had a half-hour conversation with her on 6th February 2023 where we discussed the free speech climate in universities and various aspects of the Bill. The next day, speaking on the floor of the house, Coutinho strongly defended the tort as “critical to stimulating the cultural transformation” necessary for free speech, citing her conversations with “leaders and academics in the higher education sector”. The Commons voted 283-161 to reinstate the tort in full.
The Bill returned to the House of Lords where peers targeted the tort again. Claire Coutinho guided the Bill through some choppy waters while continuing to engage with academics, politicians, and free speech campaigners. With great political skill, she found an acceptable compromise on the tort — it was agreed that a complainant would need to have exhausted the free speech complaints scheme before going to court unless bringing civil proceedings for an injunction only — and successfully got the Bill over the mark. In a landmark event, the Bill was agreed to by both houses on 10 May 2023 and received Royal Assent the next day, thus becoming the Higher Education (Freedom of Speech) Act 2023.
The Act is not a panacea. Key provisions of the Act, such as the complaints scheme and the statutory tort, will only come into effect in August 2024. The Act merely requires universities to take all “reasonably practicable steps” leaving open the possibility that courts will give universities a fair bit of discretion in difficult free speech cases. The Act will strengthen the free speech rights of employed academics but the recourses for fired academics are still less robust than one would like. A future government may weaken or repeal the Act; indeed, the opposition Labour party, currently tipped to form the next government, consistently voted against the Bill for the Act. However, recent cases of left-leaning academics being targeted for their views on the Israel-Gaza conflict may have made it more likely that Labour will decide to retain the Act.
Yet, the Act is already making a difference. The very existence and potential threat of enforcement mechanisms have started focusing the minds of university administrators and improving the free speech climate. The most important consequence of the Act may lie in the fact that by incentivising universities to prioritise values around free speech, it makes enough leeway to change free speech culture. We saw this already in May 2023, when the invitation to Kathleen Stock — the noted philosopher who was hounded out of Sussex University a few years ago due to her nuanced views on sex and gender — to participate at a debate at Oxford was not withdrawn despite pressure from activists to do so. In the wake of controversy around Stock’s invitation, Claire Coutinho made a strong statement about the Act and free exchange of ideas, which probably helped.
Over the last year, spurred by the Act, universities across England have started revamping their Free Speech Codes of Practice. For example, a new Code of Practice at my university was approved in November 2023 which emphasises institutional neutrality and the importance of paying “particular regard” to free speech which must be considered in the implementation of all other codes, policies and procedures. The passage of the Act has led to a climate of increased awareness and urgency around free speech issues in UK campuses. A key player here has been Academics for Academic Freedom (AFAF), an organisation founded in late 2006 as a campaigning group for unimpeded academic inquiry. In 2022, AFAF began to establish campus branches to build up a network of academics willing to defend freedom of expression. There are currently over 20 branches across the UK, most formed in the wake of the Act. The last six months have also seen the establishment of two new academic-led organisations in the UK committed to supporting academic freedom: the London Universities’ Council for Academic Freedom and the Committee for Academic Freedom.
The appointment by the government of Prof Arif Ahmed as the inaugural Director for Freedom of Speech and Academic Freedom, a position created by the new Act, is hugely significant. In a major speech at King’s College London in October 2023, Ahmed set out clearly his strong and wide-ranging vision for his new role. He has previously described suppression of free speech at universities as a step towards totalitarianism. Under Arif Ahmed, the regulator for higher education in England has recently announced its preliminary plans for the Free Speech complaints scheme created by the Act which will come into effect in August 2024 and cover academics, students and speakers.
In addition to the Higher Education (Freedom of Speech) Act, another key legal tool for resisting cancel culture and securing academic freedom in the UK context is the Equality Act 2010, which prohibits discrimination based on a range of protected characteristics, such as age, sex, race, disability and religion or belief. In the ground-breaking Forstater case, the employment appeal tribunal held that gender-critical beliefs (such as the belief that biological sex is immutable, important and not to be conflated with gender identity) are protected under the Equality Act. This judgement has had wide implications for free speech and academic freedom and has led to a cultural shift within UK academia regarding gender-critical scholarship. In October 2023, a review into the use of sex and gender questions in statistics to be led by Prof Alice Sullivan, a sociologist at University College London who has been a prominent voice on threats to academic freedom from gender identity ideology, was ordered by Michelle Donelan, the UK Secretary of State for Science. In September 2023, the Sean Corby case established that opposition to Critical Race Theory is a protected philosophical belief under the Equality Act. The important ongoing Gadow case argues that belief in the value of academic freedom is itself a protected philosophical belief under the Equality Act.
Yet, as argued persuasively by Greg Lukianoff and Rikki Schlott in their recent book The Cancelling of the American Mind, law alone is not enough for long-term change. Law and culture influence each other, and changes can happen fast. Laws such as the Higher Education (Freedom of Speech) Act give necessary protections and improve free speech culture but for free speech protections to survive and be effective in the long run, it is essential that we constantly work to strengthen cultural norms that allow free speech to thrive. Without such efforts, any short-term improvement in free-speech culture prompted by law is unlikely to last.
To build the necessary free speech culture, we need to support the development of antifragility in young people. We need viewpoint diversity. We need public intellectuals to lay out the case for free speech and the flaws of the identity synthesis. We need more articles drawing attention to the politicisation and censorship of science. In the words of evolutionary psychologist Steve Stewart-Williams, “censoring science blunts our ability to understand the world” and “by blunting our ability to understand the world, we also blunt our ability to make the world a better place.” We need to fight the encroachment of critical social justice into academia. We need to work towards reworking Diversity and Inclusion policies so that they are evidence-based and respect academic freedom. I have written elsewhere some thoughts on how one may try to achieve this in the context of mathematics.
We need to organise more events around free inquiry and academic freedom. Such events help disseminate knowledge and build awareness around key topics. They also bring in more people to the movement and enable us to forge new connections. Over the past couple of years, several such events have been organised in the UK by the Free Speech Union and Academics for Academic Freedom. In November 2023, the more policy-focused London Universities’ Council for Academic Freedom had its launch event in London where Akua Reindorf KC delivered a lecture explaining the various UK laws around academic freedom and harassment and how these interact with each other.
Finally, it is important to also continue working within the system and trying to change policies for the better: so we need to keep responding to consultations, writing letters to key people and influencing the direction of travel of relevant bodies. From my experience in the UK, such efforts can bring results. In working with others, we should not forget that the values of free expression and free inquiry can be threatened from any direction of the political compass. So we need to seek out new allies but also stay true to the core principles that underpin these values.
The last decade has seen a free speech crisis on university campuses that may be the worst in living memory. Yet, recent events in the UK give us cause for cautious optimism. The tide may be finally turning.
Abhishek Saha is professor of mathematics at Queen Mary University of London. He is a convenor of the QMUL AFAF Branch.
*This is a version of an article that previously appeared as a HxA Blog with the title Protecting Free Speech in Universities: insights from the UK. It is republished here under a creative commons license and with the permission of the author.
Photo Credit: QMUL – Abhishek Saha
