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Last July, in her first speech as culture secretary, Lisa Nandy declared that “the era of culture wars is over”.
Then, later that month, education secretary Bridget Phillipson paused the enactment of one of the previous government’s most provocative culture war measures just days before it was due to come into force. This was the Higher Education (Freedom of Speech) Act 2023.
A furious reaction ensued on the part of the culture warriors, and this included the deep-pocketed Free Speech Union (FSU), led by the newly ennobled Toby Young, announcing that it would seek judicial review of Phillipson’s action.
This was on the grounds that she had acted ultra vires — that is, exceeded her legal power or authority — and had also breached the public sector equality duty under section 149 of the Equality Act 2010 by removing protections for “people of certain protected groups”, such as “gender critical persons or those who espouse minority political views”.
As I previousl concluded in Byline Times, “How the Government deals with the ongoing fall-out from its pausing of the egregious Higher Education (Freedom of Speech) Act will be an early test of its mettle on this particular front.”
Just days before the judicial review was due to take place, the Government backtracked. To quote the title of its press release on 15 January 2025: “Government reaffirms commitment to Free Speech in universities.”
Admittedly, it dropped two of the most contentious elements of the Act, namely the inclusion of student unions within its remit and the statutory tort that allowed legal action to be taken by anyone claiming that their freedom of speech had been restricted by a university.
The latter in particular would have put an intolerable burden on universities, already in considerable financial difficulty, and would have been a gift to those determined to stage events calculated to provoke protests that would enable them to claim that their free speech rights under the Act had been infringed: climate change and Holocaust deniers, anti-Muslim racists and myriad other aggrieved extremists of one kind or another would have been queuing up to mount such provocations.
The revised legislation still imposes a duty on universities to promote free speech on campus and create appropriate codes of conduct. It also retains the oversight role for the Office for Students (OfS), England’s higher education regulator, and for its Director for Freedom of Speech and Academic Freedom, inevitably known as the free speech tsar.
The OfS maintains the power to investigate complaints about breaches of free speech from students, academics and external speakers. Universities which break the rules will be publicly held to account and could be required to pay compensation and fines; at worst, their registration could be suspended.
Freedom of expression on university campuses, and anywhere else for that matter, is obviously a serious issue. But the much vaunted “free speech fundamentalism” of Trump, Musk and Zuckerberg, faithfully amplified in the UK by the right-wing press, and particularly in the Telegraph by the likes of Alison Pearson and Isabel Oakeshott, has served to demonstrate all too clearly the highly partisan and provocative ends to which arguments for freedom of speech (albeit of a very specific kind) can be put.
The Act had its origins in endless right-wing newspaper stories about people being “cancelled” and “no-platformed” at universities and in assiduous campaigning by lobbyists such as Policy Exchange and the FSU.
The kind of speech which it was aimed at freeing (and, by extension, the kind of criticisms of such speech that it was aimed at muzzling) is abundantly clear from the White Paper, Higher Education: Free Speech and Academic Freedom, presented to Parliament by education secretary Gavin Williamson in February 2021. Given the number of academics who criticised Phillipson for delaying the enactment of the Act, one wonders if they were fully aware of the impulses behind its creation.
For example, in the Foreword, Williamson noted that “there are some in our society who prioritise ‘emotional safety’ over free speech”, complained of “the rise of intolerance and ‘cancel culture’ upon our campuses” and lambasted a “creeping culture of censorship”.
The White Paper itself claimed that there is growing concern within Government of a chilling effect on university campuses that means that not all students and staff feel able to express themselves without fear of repercussion. They may, for example, feel unsupported to challenge conventional wisdom or fear that their views on international political, historical or social issues will expose them to intimidation or harassment.
There is also evidence of students being concerned that they may face the prospect of differential treatment by lecturers, or adverse impacts on their career prospects, on the basis of their expressed political views.
However, no examples of such behaviour are discussed in any detail, and the whole document is heavily reliant on two reports by Policy Exchange (here and here), whose co-author, Eric Kaufmann, has openly boasted about his role in the creation of the Act (here and here).
And it is surely significant that Professor Jonathan Grant of King’s College London, the author of another report cited by the White Paper to back up its arguments, accused Williamson of misrepresentation and engaging in a “conflation between so-called cancel culture and issues around the chilling effect”.
Calling the resultant Bill “excessive and over the top” he also had to request a correction from the Telegraph after Williamson wrote an article for it stating that he was “shocked” by the contents of the King’s study, claiming that it found “a quarter of students believed violence was an acceptable response to some forms of speech”.
However, what the report actually said was that this figure was comparable with the general public, 20% of whom held the same view.
The University of Sussex Case
Any doubts about the kinds of freedom that the Act upholds and defends would surely be dispelled by the action which the OfS has very recently taken against the University of Sussex, fining it a record £585,000 for what it claims are breaches of the Act.
The origins of the case go back to October 2021 and the start of a st