Higher Education (Freedom of Speech) Act 2023

After student societies at Oxford University deplatformed the history professor Selina Todd and a former home secretary, Amber Rudd, in February and March 2020, the Secretary of State for Education, Gavin Williamson, warned that the government would move to "defend free speech" if universities failed to do so themselves.[5] HuffPost UK reported soon afterwards that the government was preparing a law to protect freedom of speech in higher education, fulfilling the Conservative Party's manifesto pledge in the 2019 general election to "strengthen academic freedom and free speech in universities". A Department for Education spokesperson stated at the time that the government had "made clear that if universities do not uphold free speech, the government will".[6]

In March 2021, David Miller, a professor at the University of Bristol, was put under investigation after making controversial remarks on Zionism, another incident that raised concerns over academic freedom. Lord Parkinson, on behalf of the government, stated in response that universities are "independent and autonomous organisations" with the responsibility to determine the limits of "lawful free speech" for themselves, though the government condemned Miller's comments.[7]

The government confirmed in February 2021 that legislation would soon be brought forward to protect freedom of speech and academic freedom in universities,[8] and published a policy paper outlining its intended approach.[9] Titled the Higher Education (Freedom of Speech) Bill, the proposed law was formally announced by Queen Elizabeth II in her speech from the throne at the 2021 State Opening of Parliament on 11 May 2021.[10]

In the debate following its announcement in the 2021 Queen's Speech, the Labour Party's Shadow Education Secretary, Kate Green, questioned whether the bill would protect Holocaust deniers, and the Conservative former minister Edward Leigh suggested that it could have "unintended consequences", arguing that free speech "should be governed by good manners" rather than laws.[16] The Prime Minister's Office subsequently rebuked Michelle Donelan, the universities minister, for failing to deny categorically that the bill would force universities to host Holocaust deniers.[17]

A joint letter from the freedom of expression campaign groups Index on Censorship, English PEN, and Article 19 on 11 May 2021 criticised the bill, arguing that the threat of fines was likely to diminish, rather than enhance, freedom of speech at universities, and would create "a chilling effect" on the content of academic teaching and the scope of research.[18][19]

Writing in The Daily Telegraph, however, the Birkbeck politics professor and Policy Exchange fellow Eric Kaufmann welcomed the bill as recognising that the "university's highest value is the search for truth, not the subjectively-defined emotional safety of students", and noted that it drew on previous recommendations by Policy Exchange.[20]

Jo Grady, general secretary of the University and College Union, a trade union for higher education staff, described the bill as itself "a serious threat to freedom of speech and academic freedom" and argued that the government had "over-exaggerated" the issues motivating the bill. Spokespeople for the Russell Group of universities and Universities UK stated that the bill should be "proportionate" and avoid creating unnecessary bureaucracy, infringing university autonomy, or duplicating existing laws, though the Russell Group shared the government's goal of protecting free expression.[21]

The bill met a mixed reception among academics. Jonathan Grant, a public policy professor at King's College London who authored a 2019 study cited by the government in preparing the legislation, termed the bill "excessive and over the top", and criticised the government for conflating the chilling effect of censorship with "cancel culture".[22] However, the Cambridge philosophy lecturer Arif Ahmed, who led a successful campaign in 2020 to overturn a proposed free speech code at the university demanding respect for others' identities,[23] called the bill "extremely welcome", though he added that "a top-down approach is never going to be a complete solution".[22]

Julian Sladdin, a higher education expert at the law firm Pinsent Masons, noted that persons seeking to make claims under the bill would still need to demonstrate that any breach of duty had caused them legally significant loss, and expressed scepticism that this would "easily translate into successful litigation in most cases".[24]