The Secretary of State for Education, Bridget Phillipson, issued a written ministerial statement at the end of last week, Whitehall’s preferred method of saying something without necessarily wanting anyone to notice. In it, she announced that she intended to halt ‘further commencement’ of the Higher Education (Freedom of Speech) Act 2023.
This legislation introduced by the previous Conservative government was given Royal Assent in May last year but several of its provisions only come into force by order of the Secretary of State. Phillipson is unhappy with measures which require universities and student unions to take ‘reasonable steps’ to protect freedom of speech. Instead she will ‘consider options, including its repeal’, believing this duty of protection ‘would be burdensome on providers and on the OfS’, the Office for Students which regulates higher education.
If you believe that free speech is a vital part of our liberal democratic society – I do – and that there is credible evidence to suggest that it is under pressure in institutions of higher education – I do – then Phillipson’s decision is disappointing and worrying. Despite differences in political ideology, I like and respect the Education Secretary: she is a dedicated, intelligent figure who grew up in difficult circumstances in the North East of England, took the opportunities offered by education at a voluntary-aided Catholic school and read modern languages at Oxford. She takes public office seriously, and I would not suggest that she is motivated by some repressive loathing of free expression.
On a broader level, though, I think she, and the government as a whole, prefer nebulous guardrails to exist around public debate and would rather not be confronted by ideas they dislike or find distasteful. Although the education secretary talked about the regulatory burden of the act, a government source told the BBC that its provisions could amount to an ‘anti-semite charter’, because they would potentially allow Holocaust deniers to speak at university or student events. The Whitehall line also argues that this is all unnecessary stoking of the so-called ‘culture wars’, given existing legal protections for free speech at universities.
This last point is true but misleading. Section 43 of the Education (No. 2) Act 1986, passed under Lord Baker of Dorking, stipulates that higher education providers ‘shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers’.
There are several lacunae here. First, section 43 only applies directly to higher education providers, not to student unions. Secondly, the legislation provides neither for a clear enforcement mechanism nor for any direct consequences of breaching the section 43 duties. Case law has established that it can prompt a judicial review but confers no private law rights. A 2018 report by Parliament’s Joint Committee on Human Rights concluded that freedom of speech was being limited by ‘confusion’ and ‘regulatory complexity’.
I am rarely moved to agree with Sir Gavin Williamson, the former education secretary who introduced the Higher Education (Freedom of Speech) Bill in 2021, but he was absolutely correct to refer to the importance of the right ‘to articulate views which others may disagree with as long as they don’t meet the threshold of hate speech or inciting violence’. Essentially, he argued that unless you were in breach of existing laws, you should not be limited in what you say. Holocaust denial is a foul and malign credo but it is not ipso facto prohibited by law; happily, as David Irving found to his immense cost, it is also able to be disproved soundly and satisfactorily.
That, however, is the real crux of the matter. The issue is not so much the virtues or faults of the Higher Education (Freedom of Speech) Act 2023 as the attitude and philosophy behind it, and it is revealing that anonymous government sources reached instinctively for Holocaust denial as their bogeyman. A free society is underpinned by freedom of speech, and, although it is a worthy and essential precept, that freedom of speech is neither comfortable nor always very nice. Bad people will say bad things, but they are allowed to do so within the confines of the law. Freedom runs in both directions.
Moreover, freedom of speech is not inherent or inevitable. It doesn’t just happen, because human beings can be malicious, lazy, frightened and indifferent. Like any freedom it has to be defended and maintained. The 2023 act was an attempt, irrespective of its specific provisions, to shore up the protection of a freedom for which the previous statutory basis was inadequate. That there have been almost no prosecutions under section 43 of the 1986 act could be taken as meaning there is perfect freedom of speech in British universities; but many people will tend to interpret it more as showing the measure’s toothlessness.
I am not arguing that it must be the existing act or nothing, and Bridget Phillipson has pledged to ‘consider options’. But looking at the new government, and its track record in opposition, I see absolutely nothing to suggest it will be galvanised to defend the right to say awkward, unpalatable or uncomfortable things in public. That, though, is how it must work. Having cited Sir Gavin Williamson, I will go further outside my comfort zone to Noam Chomsky: ‘If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.’
Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.
CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.
