Powers introduced by the Conservatives to protect free speech at universities have been suspended by the new government in a dramatic U-turn, paving the way for ministers to scrap the legislation.
Just days before it came into force, the Education Minister said she had decided to “suspend any further entry into force of the Higher Education Freedom of Expression Act 2023, in order to consider options, including its repeal”.
Bridget Phillipson also announced major changes to the work of England’s higher education regulator, the Office for Students (OfS), to prioritise the financial stability of the sector as many universities struggle in the face of a growing financial crisis.
The legislation, which met with fierce opposition as soon as it was passed, required universities and student unions to take “reasonable steps” to promote free speech or face sanctions from the regulator, including possible fines.
Phillipson said the legislation was not fit for purpose and risked imposing heavy burdens on institutions. “For too long, universities have been a political battleground and treated with contempt, rather than as a public good, distracting people from the fundamental issues they face.”
She said the government remained “absolutely committed” to free speech and academic freedom, adding: “This legislation could expose students to appalling harm and hate speech on campus.
“That is why I have swiftly ordered this legislation to be halted so that we can consider the next steps and protect the interests of all, working closely with a refocused OfS.”
Phillipson’s decision was welcomed by many in the sector who challenged the previous government’s narrative about a crisis of free speech at universities and its claims that “cancel culture” and “no platforming” were undermining academic freedom. In stark contrast to the Conservatives’ claims, a survey of students by the OfS last year found that almost nine in ten students in England felt free to express their opinions and beliefs.
The Education Secretary’s announcement coincided with the publication of an independent review by the OfS which concluded that the regulator must reduce its strategic objectives to focus on monitoring the financial sustainability of the sector, while ensuring quality, protecting public money and regulating in the interests of students.
Chief reviewer Sir David Behan, who previously headed the Care Quality Commission, has also been confirmed as the new interim chair of the OfS following the departure earlier this month of James Wharton, a former Conservative MP who led Boris Johnson’s Conservative leadership campaign in 2019.
Earlier this year, the OfS warned that a growing number of universities in England were facing “a significant risk of closure”, with many overly reliant on international students to make up for the shortfall caused by falling tuition fee income from domestic students. The OfS said around 40% of institutions were expected to make budget deficits this year.
Universities UK, which represents 142 universities, welcomed the report. “Its findings highlight the importance of an independent regulator for higher education in England and the need to focus on the financial sustainability of the sector.”
A spokesperson for the Russell Group said: “The decision to suspend implementation of the Act is a reasonable and proportionate measure given that universities and student unions have not yet seen the final guidance from the OfS on the new freedom of expression duties, despite some requirements in the legislation due to come into force next week.”
Nick Hillman, director of the Higher Education Policy Institute, added: “The situation on free speech is a complete disaster, with universities and student unions not knowing what is going on. So it is good that the fog is gradually lifting.” The move could, however, raise questions about the role of Cambridge philosophy professor Arif Ahmed, who was appointed free speech tsar for higher education in England last year.
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Phillipson has been accused of pursuing “ideological dogma” by Damian Hinds, the former education minister who is now shadow education secretary.
“Freedom of expression is a fundamental right, and it must extend to universities. Without the ability to freely express one’s opinions in higher education, these centers of learning risk becoming centers of co-optation and intolerance,” he said.
“The fact that this Labour government is prepared to abandon the measures we put in place to protect these rights clearly shows that it is prepared to sacrifice the next generation on the altar of its own ideological dogma.”
Saranya Thambirajah, vice-president of the National Union of Students for Liberation and Equality, said: “Many of us were really worried about the impact this law would have, which would further divide our campuses and put marginalised student communities at greater risk. The government has sent a clear message that it will not play politics with freedom of expression or hate speech.”
The move was also welcomed by the Board of Deputies of British Jews, which said it supported concerns raised by the Union of Jewish Students that the law risked allowing anti-Semitic extremists onto campuses by impacting universities’ ability to block them.
Phil Rosenberg, chairman of the council, said: “This ruling will allow the government to consider how to ensure that free speech is protected without giving free rein to those who commit hate speech.”
Jo Grady, general secretary of the University and College Union, said: “Across the country we are already seeing courses being cut and thousands of staff facing redundancy. The regulator’s first priority must be to ensure no institution goes bust, but to back up that obligation it now needs new funding that can be used to support any university at risk.”
