Legislation Aims to Address 'Cancel Culture' Criticisms While Easing Burdens on Universities

Higher Education Expert Comments on Upcoming Implementation of Free Speech Act 2023

An expert has noted that the UK government’s confirmation to implement most provisions of the Higher Education (Free Speech) Act 2023 by the next academic year will clarify free speech and academic freedoms at universities. Julian Sladdin, a higher education expert at Pinsent Masons, commented on the government's decision to move forward with the Act, setting aside previous delays. This follows the suspension of the original Act in July 2024 and aims to address criticisms and a judicial review from free speech advocates.

Sladdin noted that while the legislation's commencement will be delayed until the next academic year, it provides clarity on its direction. He stated that most protections will remain, but some controversial provisions will be removed, despite academics calling for stronger safeguards against 'cancel culture' on campuses. The updated legislation requires higher education institutions in England and Wales to secure and promote free speech and academic freedom. It reaffirms the Office for Students (OfS) director of free speech to oversee compliance and establish a complaints scheme for staff and external speakers. Student complaints will be directed to the Office of the Independent Adjudicator for Higher Education (OIA).

The Act will no longer require student unions to secure and promote free speech or grant statutory powers to enforce this. However, the previous expectation for student unions to ensure free speech remains. The right for individuals to bring claims under a statutory tort has also been removed to avoid imposing a disproportionate legal and financial burden on student unions and universities, particularly amid financial pressures. Sladdin acknowledged that removing obligations on student unions and the right to bring statutory tort claims may not satisfy those seeking stronger safeguards against 'cancel culture.' However, he emphasized the need to balance this with the potential financial strain on universities, especially given concerns over litigation costs.

It remains unclear whether the reintroduced, more limited legislation will address the Free Speech Union's judicial review, set to be heard on 23 January. Despite the government’s announcement, the case will stay active until the High Court receives a detailed statement on the Act’s commencement. Sladdin noted that universities would likely welcome the removal of the statutory tort regime due to its financial and administrative burdens. While the regime lacked safeguards against vexatious complaints and costly litigation, he stressed the need for clarity on the OfS complaints regime and potential revised timelines for additional regulatory obligations.

He warned that, without sufficient safeguards, universities could still face vexatious complaints, straining their legal resources and undermining the legislation's intent. The UK government's Higher Education (Free Speech) Act 2023 seeks to balance promoting free speech while reducing financial and legal burdens on universities. Key provisions have been removed to alleviate these pressures, but the effectiveness of the legislation in addressing free speech concerns and the ongoing judicial review is yet to be determined.

Editor's Note:

The Higher Education (Free Speech) Act 2023 marks a pivotal step in ensuring free speech and academic freedom within UK universities. This legislation aims to balance the protection of free expression with the need to reduce financial and legal pressures on higher education institutions. As we navigate these changes, the true impact on the academic landscape and the ongoing judicial review will be closely monitored. This Act will likely have significant long-term implications for the higher education sector. By clearly defining the responsibilities of universities and removing certain controversial provisions, it aims to create a more balanced approach to safeguarding free speech. In the future, this Act could serve as a model for other countries struggling with similar challenges in balancing free speech and academic freedom with institutional responsibilities. 

Skoobuzz believes that as the higher education landscape continues to evolve, ongoing dialogue and adjustments to the legislation may be necessary to ensure it effectively addresses the changing dynamics of free speech on campuses.