Summary

In July, the Secretary of State for Education, Bridget Phillipson, issued a statement to the House of Commons saying she intended to stop commencement of the Higher Education (Freedom of Speech) Act “in order to consider options, including its repeal”.

The Freedom of Speech Act is a carefully crafted piece of legislation, extensively debated in Parliament, designed to address the free speech crisis in our universities. It would have strengthened the legal duty on English universities to uphold and promote freedom of speech and created two new enforcement mechanisms to make sure universities didn’t ignore that duty.

The Act received cross-party support during the last Parliament and the most important parts were due to be commenced on 1st August 2024. But the new Secretary of State for Education, Bridget Phillipson, decided to cancel the commencement of the Act in a way that we believe is an abuse of executive power and against the law.

We are challenging the decision to torpedo the Freedom of Speech Act via judicial review, but to do that we need your help.

Why the Freedom of Speech Act was passed

For some time now, there has been a free speech problem in our universities. A recent survey by UCU, Britain’s largest academic trade union, found that 58.2% of its members think protection for academic freedom is in decline. Of the 2,700+ cases the Free Speech Union has taken on in the past five years, about a fifth have involved university students or academics who have found themselves in trouble after challenging the prevailing orthodoxy – like Almut Gadow, a law lecturer at the Open University who was fired after she objected to being told she had to call male sex offenders who identify as women by their preferred gender pronouns. A survey for Policy Exchange in 2020 found that two-thirds of academics would be uncomfortable sitting next to a feminist who opposes the admission of transwomen to women’s shelters.

Although a legal duty to protect free speech has been imposed on universities since 1986, it has been more honoured in the breach than the observance because holding higher education providers to account, either by bringing a case in the Employment Tribunal or the High Court, is prohibitively expensive. The Freedom of Speech Act solves this problem by introducing various measures that make it easier to hold universities’ feet to the fire. These include:

• New duties on universities to promote the importance of freedom of speech and academic freedom.
• A new complaints scheme whereby academics, students and visiting speakers who think their speech rights have been breached can complain to a ‘free speech tsar’ at the Office for Students, the English higher education regulator.

• A new statutory tort to enable individuals to pursue legal proceedings in the County Court against universities that have neglected their free speech duties.
• New requirements on universities to disclose their overseas funding from authoritarian regimes like China, making it harder for them to shut down criticism of those regimes as a condition of maintaining that income.

The Freedom of Speech Act also tightens up several existing loopholes and gaps in the law. For instance, it makes it clear that students’ unions are also subject to free speech duties, meaning they cannot no-platform visiting speakers with controversial views on spurious grounds, such as ‘security costs’.

What happened 

In common with a lot of legislation, not all the provisions of the Act came into force on the day it received Royal Assent. For those parts that did not come into force immediately, Parliament permitted the Secretary of State to name dates for when different parts of the law would take effect. This was done to allow a grace period so the Office for Students and universities could make the necessary preparations.

Some provisions were brought into effect on 14^th August 2023, including those relating to the Director for Freedom of Speech and Academic Freedom. In April 2024, the then Secretary of State Gillian Keegan made the final commencement regulations stipulating that the remaining provisions would come into force on 1^st August 2024 and 1^st September 2024.

However, Bridget Phillipson, the new Education Secretary, decided to override Parliament’s intention and announced she was stopping the further commencement of the Act less than three weeks after Labour won the election. She explained that she had concerns about the effect the Act might have on minority groups, and claimed the law would place an unreasonable burden on universities, neither of which we consider serious arguments.

Why it matters

None of the new protections for academic freedom and free speech on campus will be in place when the new academic year starts. There will be no new duty to promote free speech; no complaints scheme; no statutory tort; students’ unions will once again be able to cancel events on spurious grounds; and individuals who have been no-platformed will have no recourse. Cancel culture will continue to flourish, unconstrained by law.

But there is an even more important principle at stake: whether a Government minister can simply decide that she doesn’t agree with a law that Parliament has made and choose to do away with it. This is an issue of constitutional importance, concerning the balance of power between the executive and the legislature. We believe it’s wrong for the will or Parliament to be flouted in this way.

The legal case we are bringing

We believe the Secretary of State acted illegally in revoking the commencement regulations. As a general principle, if a minister is granted the power to make regulations, they also have the power to amend or revoke them. However, our case is that a minister cannot simply revoke commencement regulations. The sole purpose of this type of regulation is to give effect to the will of Parliament by bringing legislation into force on a particular date. It is not, we believe, within a minister’s discretion to defy Parliament by refusing to bring the legislation into force at all. This strikes us as an abuse of ministerial power.

You can read our pre-action protocol letter, setting out our case in detail, here.

Why we need your help

Judicial review proceedings are notoriously expensive, all the more so when taking on the might of central government with its army of lawyers. We expect they will be throwing everything they’ve got at this case, because politically they cannot afford to lose. But nor can we.

We have a stellar legal team: our solicitor, George McLellan, is a partner at Sharpe Pritchard LLP, and our barristers Tom Cross and Zoe Gannon at 11KBW, are top notch public law specialists. The FSU in-house legal team is also working hard to support them so that we can save whatever money we can while presenting the strongest possible case. But this is the biggest fight we have taken on to date and is going to require hundreds of hours of research, preparation, drafting and other work leading up to an eventual hearing. We also need to be prepared for the risk of having to pay some of the Government’s costs if we lose.

Thank you for your help in this fight. Your donation will help us strike a blow for academic freedom and send a message to the Government that the power of the executive is not unlimited.