The freedom of speech act in practice

England’s higher education providers have been set free.

Free from a prolonged period of uncertainty, an uncertainty of what the legislation about academic freedom and freedom of speech would do.

Even up to the last week of a two year process, there was scope for last minute changes. Now we know. There are no more unknown unknowns, but to be honest there are a certain number of known unknowns.

Iain Mansfield has tweeted that the act is already working. Eric Kaufman has welcomed it as triumphant and Matt Goodwin has opened the champagne. There’s much still to be done to bring in the full effect of the law through guidelines and codes of practice, but the spirit of the law now applies.

I suspect that most universities have not sat still for the last two years, and have advanced plans to be further able to demonstrate they secure and promote both academic freedom and freedom of speech.

What’s clear to anyone who’s opened more than one book about either academic freedom or freedom of speech is that these are contested notions. It is clear that the next period will bring continued contestation, particularly where academic freedom and freedom of speech appear to conflict with other values, some of which are contained in law.

Law and values

Both freedoms are constrained by the term “within the law.” The most obvious area where there is contention is with equalities and diversity law and further with values that providers have sought to address. OfS has already provided extensive guidance which concludes that people with “offensive” but lawful views will need to have their rights upheld.

One key test area will be antisemitism; Lord Mann’s new report invites OfS to address this, not least as some examples of behaviour in the IHRA definition that are antisemitic are not unlawful. In turn, where a university espouses a value, such as not tolerating racism, this may not trump someone’s freedom of speech.

Academic freedom first

There continues to be an unhelpful subsuming of academic freedom under freedom of speech. Providers would be well advised to avoid that in thinking about their next actions. Academic freedom means the ability of academic staff to question and test received wisdom and put forward new ideas without risk of losing their job or getting another. The Act as passed does not constrain this freedom, say by the expertise of the staff member. It is generally accepted that this is a professional freedom, it will need to be considered within some form of professional boundaries. In the US a long-standing part of the system of securing academic freedom is tenure – not a concept that has survived in the UK.

Most academic staff are employed because students pay fees for the courses they teach on. The idea of testing received wisdom and putting forward new ideas lies at the heart of curriculum development. OfS condition B1 on the academic experience leads on courses being “up to date.” Academic freedom is tied into the heart of the university, but that also exposes the issue that if the university thinks a course is out of date, or more likely that students are no longer coming in sufficient numbers to pay for the staffing, then there is a risk to the continued employment of some or all of the staff in an area. No national planning framework is coming to ration out students to pay for the staff currently in place at every provider, but universities cannot now take shortcuts in their thinking, and need to ensure academic freedom is part of the consideration.

Don’t chill speech

A university’s standard approach to risk management may not work here – minimising the risk of regulatory action cannot come by minimising the amount of speech. Concerns that there was a chilling effect (on free speech) before the legislation have been matched by concerns there will be a chilling effect (on universities and students’ unions willingness to host potentially controversial events) after the legislation. Universities need to get on with the general duty to promote academic freedom and freedom of speech while thinking about the detailed implementation that will come.

The most high profile aspect of this is people giving talks. The data that OfS has collected from universities under the Prevent duty monitoring shows the scale – there were 31,545 external talks in 2021-22 with only 0.8 per cent of them not being approved. However if we take a risk-based approach, we might want to look at supporting the debating and politics societies first. Sadly, then the societies based around key issue areas, say gender or sexuality, but also the environment or religion, will need support.

If these are your thing, and for most students they are not, then you need assistance to run these well. Some students may want the attention of the national and international press and to have their social media trawled through, but most won’t. While we wait for guidance we need to keep these societies lively. As a rule of thumb, on the whole, it might be better to avoid having a student society invite a Tory MP and then decide to uninvite them.

People’s own behaviour

Joining a university, as a staff member or a student, is a contract. There are many explicit terms in that contract which, as is often the case with terms and conditions, we may not have read. Or we might have decided that being paid, or being taught, outweighed some commitment or other that we were making. All of us have a level of protection for our freedom of speech, and academics for academic freedom. People are going to test that. You won’t be able to argue that bringing in your own fan heater or ignoring the car parking rules is a breach of your freedom of expression, but people are going to challenge other rules.

We know that the commonly used explanation of where free speech is constrained by health and safety law is not shouting “fire” in theatres. People in universities are now protected a bit more from adverse behaviour from the university if they shout “this course is crap” in lecture theatres – even at open days. If press reports are true, some universities are going to have to recalibrate their attitude towards criticism.

Overseas

Providers and students’ unions will have to return information to OfS on overseas funding. The first stage of that will be a need to understand what funding comes from overseas governments and companies and whether any overseas donor or partner is a “politically exposed person” (which could include people ranging from a head of state to someone in a leadership role in a state industry).

There will be regulations from OfS about the data, but as the aim is to ensure that we understand any risk to academic freedom or freedom of speech, providers should be reviewing these relationships. The recent OfS Insight briefing reminds us that expectations extend to students studying in partner providers, and providers will need to understand risks there, too.

Practical implementation

There will be a lot of practical things to do. There’s a sequence: a Director of Free Speech needs to be appointed (some assumptions that this would immediately follow Royal Assent to the bill have been confounded, but it can’t be far off). OfS already has a Head of Freedom of Speech in post, and presumably a team under them, ready to support the director. A consultation will follow on the condition and on the guidelines that OfS will issue. Universities and students’ unions will then prepare codes of practice.

We have reached the end of this academic year; we should summon up all our optimism and plan to achieve all the tasks necessary to have the schemes ready for 2024-25. There may be complaints about the pace of that, but this affects members of the university, staff and students, and will probably affect their contracts.

And if government or others complain it’s taking too long, keep in mind that it took one day less than two years to pass the legislation.