Mick Hartley

Over the past few years we've seen a number of academics – mostly women, mostly gender critical – having to fight to protect their livelihoods and their right to speak their minds. It's a fraught, expensive business. The last government's Higher Education (Freedom of Speech) Act 2023 was an attempt to put that right, but it may be repealed according to indications from the new Labour government.

Akua Reindorf KC in a guest post on Julie Bindel's substack – A Freedom Worth Having:

What the new legislation does is to give the existing law teeth. It is by no means perfect, but it has the substantial benefit of bundling together the law in this area into a package that contains an accessible enforcement mechanism: a complaints scheme to be operated by the Office for Students. Cases may be taken to court, but only after the complaints process has been exhausted.

The displeasure of many university leaders at the prospect that academics will be able to enforce their rights has somewhat surprisingly been heeded by the Labour government, which appears to be taking the side of institutions against individuals deprived of a just remedy for unlawful conduct. If we have law, it should surely be able to bite. And this is not just any unlawful conduct; it is conduct which breaches the right to freedom of expression, the cornerstone of all human rights.

In any case, the protests of the university administrators are surely misplaced. The OfS complaints process will be free and should be relatively speedy, and complainants may not take a case to court until the complaints process has run its course. The filter of an efficient and informal scheme of this sort seems bound to represent better value than the financial drain of interminable employment tribunal cases like that brought by Professor Phoenix against the Open University. If a case does end up in court, it will be in a civil court in which legal costs can usually be recovered by the winner.

The government has also expressed concern that the new Act will negatively impact the welfare of students from minority communities, a view shared by the National Union of Students and other stakeholders. From a legal point of view this is a puzzling objection. It pitches the right to freedom of speech against the rights of minorities not to be subjected to hate speech as though there is not already a mature and well developed framework of legal principle which holds these rights in careful balance, to which the new Act would be subject….

The freedom to say only uncontroversial things is not a freedom worth having, and challenging consensus is what universities are for. We must hope that repeal is not a done deal, and try to persuade the government to take a level headed approach to it.