Revoking the revocation of the free speech act commencement

We last caught up on the multi-year saga of the Higher Education (Freedom of Speech) Act on 25 July 2024, when Bridget Philipson – in one of her first higher education acts as Secretary of State for Education – published the The Higher Education (Freedom of Speech) Act 2023 (Commencement No. 2) (Revocation) Regulations 2024.

What this statutory instrument (SI) did was to (as you might expect from the title) revoke a previous SI which would have commenced sections 1 through 5, 7, and 8 of the Higher Education (Freedom of Speech) Act 2023 (alongside relevant parts of the schedule). Of particular note would be the provisions relating to the statutory tort (section 4) – due to come into force on 1 August 2024.

The more eagle-eyed among you will note that there are other sections of the Act that were not brought into force by the now revoked SI – these were commenced either by the Act itself or by a previous SI (. These include section 9, covering the reporting of overseas funding. That section of the act is currently in force, as is section 10 on the Director of Free Speech and Academic Freedom.

Section 9 amends the Higher Education and Research Act (HERA) 2017, putting a duty on the Office for Students to collect information relating to funds (over a certain amount) paid to an institution or students’ union by a “relevant overseas person” or “connected person”. This takes the form of new sections 69D and 69E of HERA.

But how do we know who a “relevant overseas person” or “connected person” is? How do we know what the “certain amount is”? These details are to be set out by regulations made by the Secretary of State, and – you guessed it – the Secretary of State has not yet laid such regulations.

So, if Bridget Philipson now wants to enact everything in the Act apart from the tort, the duties on SUs and the stipulations on overseas funding, what she needs to do is:

• Publish a new statutory instrument, enacting clauses 1,2,5,6, and 8, and  of the Higher Education (Freedom of Speech) Act (alongside relevant parts of the schedule, which largely amends other acts of parliament)
• Continue to not publish regulations under sections 69D or 69E of HERA (or, if she fancies, revoke section 9 of the freedom of speech act via an SI)

New regulations made under the freedom of speech act, and regulations relating to sections 69D or 69E of HERA, do not have a need for approval by parliament – they are what are known as negative SIs. In most cases negative SIs are never discussed by Parliament, though they can very occasionally be brought to the floor of the house via a successful “prayer” against the regulations within 40 days usually in the form of a popular Early Day Motion – though even here the debate is in the gift of the government. The last time there was a successful annulment following such a debate was with the legendary Paraffin (Maximum Retail Prices) (Revocation) Order of 1979.

The upshot of this is that the Secretary of State can basically do whatever she likes with SIs, without being required to seek anything but the broadest approval of parliament. The Act as passed allows her to lay statutory instruments – and nothing in the act, or in parliamentary procedure as generally accepted, can stop her from revoking them either.

For this reason, the Free Speech Union’s challenge to the revocation of commencement regulations (still going ahead, it seems) is both stupid and interesting.

The central claim, that governments do not have the power to revoke regulations unless specifically granted this power by an Act of Parliament separately from the ability to make regulations, feels like something of a reach – there have been substantially more than 300 revocations of regulations made since 2010. The FSU’s own legal advice notes that although there may be a case to answer if there had been a “substantial delay” to implementation, it would be “a pretty incredible finding from the Court” if a delay of a few months met this test.

Indeed the stated purpose of the ability to delay revocation is to allow the Office for Students the opportunity to consult on and produce guidance and rules for the operation of the various things the Act makes it responsible for – something OfS has not yet done (last March’s consultation has yet to see a response, much like the December 2023 version). Indeed, with all regulatory hands on deck for financial stability, and just about every other regulatory function paused, you’d have to ask questions about the capacity of the regulator to implement new measures.

FSU is also incorrect that all parts of all Acts of Parliament must be commenced – the statute book is littered with un-commenced sections, either by design (the section is designed to deal with a particular set of circumstances that have yet to occur) or through a lack of need (policies, processes, priorities, or governments have changed in the interim).

The interesting part is the reaction of the court to the recent trend for short “skeleton” bills where substantial policy detail is buried either in regulations to be made or in amendments to other legislation. I would argue that policy intentions should be on the face of the bill in question, and thus open for debate and amendment. An improvement in parliamentary drafting practice would be an unexpected, but very welcome, benefit of the freedom of speech act.