On the 15 January 2025, the Labour Government announced its intention to
implement new legislation protecting freedom of speech in higher education. The
Higher Education Freedom of Speech Act was passed in Westminster in 2023, under
the former Conservative government. Now, with some amendments, the Department for Education has agreed to bring the Act into force after a change of government.
The Freedom of Speech Act will only be legally enforced in English universities, so
does not directly affect the University of Edinburgh. However, this law reflects
ongoing wider debates concerning academic freedom and freedom of speech in
higher education across the United Kingdom, including in Scotland.
The Student spoke to Edinburgh Labour Students and the Edinburgh University
Conservative and Unionist Association about free speech on campus and the
potential indirect implications of the new law across the border in Scotland.
Freedom of expression has been legally protected in the UK for decades. The UK’s
1998 Human Rights Act (HRA) made freedom of expression a human right, and in
legal terms, freedom of speech is encompassed within freedom of expression.
Freedom of expression in Article 10 of the HRA protects the right of individuals to
have their own opinions and express them freely without government censorship or
interference. This section of the Human Rights Act applies to England, Scotland, and Wales. The HRA emphasises that freedom of expression and speech cannot be
used to justify hate speech, and authorities can challenge individuals if they believe
their freedom of expression to be harming other people.
Freedom of speech collides with academic freedom on university campuses, with
legislation also protecting the rights of academics to freely publish their research
without fear of losing their jobs or other privileges. This right is enshrined within the 1988 Education Reform Act and is a crucial legal basis for unions like the University and College Union (UCU).
The former Conservative government introduced the Higher Education Freedom of
Speech Act in 2023. This Act required universities by law to protect freedom of
speech and academic expression, and gave the Office for Students (OfS) power to
fine universities that did not comply. The Act was passed in Parliament but was not
implemented before the General Election in July 2024.
After the Conservative’s electoral defeat, Labour delayed the enactment of the
Freedom of Speech Act; due to concerns about potentially damaging student
welfare. Bridget Phillipson, Labour’s Education Secretary, cited concerns that the Act could protect people using hate speech on campus and would increase the financial pressure on universities if they were sued. Now the Act has been amended, so there is no direct legal responsibility on student unions to uphold the law, but the OfS are still authorised to fine universities for breaching it.
Several groups have supported Labour’s amendments to the Freedom of Speech
Act. The National Union of Students have welcomed the removal of legal action,
saying that this relieves pressure on student unions. Vivienne Stern, Chief Executive
of Universities UK, told the BBC that academic freedom is “essential” to universities
and she supports the revised legislation. The Union of Jewish Students have also
expressed support for the revised Act, saying that their concerns with the previous
version protecting antisemitic views have now been addressed.
The Student spoke to Jonny Alvarez-Buylla, Chair of Edinburgh Labour Students,
who said he agreed with Philipson’s statement that: “It was a Labour Government who first enshrined freedom of expression in law, and Labour is to this day committed to freedom of speech and academic freedom.”
Those in opposition to the new legislation include Laura Trott, the Shadow Education Secretary. Trott described the amendments as a “wrecking ball” to the policy, saying that the removal of the threat legal action prevents universities from being held accountable.
The Conservative and Unionist Association (EUCUA) told The Student that they are
concerned that “there are potentially no real legal consequences” now that the Act’s
capacity to instigate legal action against universities has been removed. The
Association added that it is critical that: “The university also uphold the free speech rights of opposing viewpoints, such as those of gender critical feminists” alongside Pro-Palestine movements and Trans Rights campaigns.
The new Act also continues a ban on universities entering into Non-Disclosure
Agreements (NDAs) with staff or students. EUCUA commented that they believe this legislation will better protect “victims of sexual misconduct, bullying, and
harassment.”
When asked about the importance of academic freedom, a second-year politics
student said:“Universities have a duty to facilitate democratic principles. If universities can’t provide a space for young people to speak as they wish then they are discouraging the very thing that higher education embraces and has been set up for!”
Photo by Michael Dziedzic on Unsplash