British universities were once known as hubs of debate and discussion. Now, students have become increasingly afraid of speaking freely in these academic environments. The Higher Education (Freedom of Speech) Act 2023 was an attempt to revive the spark of lively discourse.
Yet, despite its laudable intentions, the Act’s fundamental limitations and subsequent revisions raise profound questions about its effectiveness. The changes made by the Labour government are promising but fundamentally will not do enough to sufficiently transform British academic environments in a way that balances free speech with protecting students.
The Higher Education (Freedom of Speech) Act initially passed in 2023 and was met with both widespread criticism and passionate support. The new Labour government paused the Act on 26 July, 2024, mere days before it was due to come into force. They have since resurrected and amended the Act, signalling not an abandonment of its principles but an essential recalibration.
The new act is a sophisticated attempt to navigate the challenging balance between safeguarding freedom of expression while ensuring that campuses remain inclusive and safe environments for all students. Most notably, the revised act reflects an enhanced commitment to protecting historically marginalised groups, who have disproportionately experienced the damaging effects of hateful speech.
Amidst a sharp rise in antisemitism on campus, Jewish students hoped that the original act would provide welcome and much-needed protection. In reality, the act failed to enshrine sufficient safeguards into law. The Office for Students (OFS) guidance stated that if a university code of conduct identifies something as ‘restricted speech’, it must be defined in a way that does not restrict freedom of speech within the law.
In effect, this could have forced universities to remove the IHRA definition of antisemitism from their code of conduct, hence removing an essential protection of Jewish students. Alternatively, they could argue that antisemitism is not restricted speech, which would be unacceptable. Both these outcomes would be disastrous setbacks for Jewish students and their welfare.
The Act’s origin is embedded in Conservative anxieties about the perceived effects of “cancel culture” on university campuses and beyond. The Conservative architects behind the Act intended to create a bill able to defend academic freedom; to this end, they enabled individuals to sue institutions for failing to uphold the freedom of speech on campus.
This idealistic framework, however, harboured fundamental contradictions. Eliminating restrictions on freedom of speech inherently invites the potential for expressions of hate to proliferate, thinly veiled as academic discourse. Jewish students and their representative organisations immediately mobilised to raise concerns that the new act might inadvertently legitimise Holocaust denial and other forms of antisemitism. In particular, the Union of Jewish Students (UJS), the Antisemitism Policy Trust and the Academic Friends for Israel all expressed concerns. Their apprehensions extended beyond antisemitism to a foundational principle: no governmental legislation should ever provide shelter for expressions of racism.
When Labour took the decision to pause the act, their statement identified ‘widespread concerns about the negative impacts it would have on vulnerable groups’ as their principal motivation. The pause offered a necessary opportunity to amend the Act and do more to protect the safety of minority groups whilst preserving the legislation’s core objective of addressing systemic flaws in academic discourse.
The revised Act did just that, emerging significantly altered to assuage the fears of minority student groups and student unions. The government removed the statutory tort that exposed universities to damaging legal costs and the direct duties placed on student unions, a move which was welcomed by the National Union of Students. Despite this, the OfS retained its power to investigate free speech complaints, and they can even issue fines to non-compliant institutions when necessary.
Cambridge University
These changes reflect the Labour government’s commitment to principles of academic freedom and free speech, whilst also taking a pragmatic approach. The government has further demonstrated commitment to transparency, banning non-disclosure agreements that would silence victims of misconduct on campus. Some Jewish opponents to the original act have reversed their condemnations, indicating that some of the most pressing concerns about Holocaust denial and protection for Jewish students have been addressed.
The Act has been improved, there is no doubt, but some fundamental challenges remain. Without robust mechanisms of enforcement on campuses, its effectiveness will be thrown into question. There remain few assurances about the codification of the IHRA definition of antisemitism, as various entities across Britain continue to challenge its acceptance by many British universities. Jewish students will remain fearful of threatening signs and rhetoric at protests – when these cross the line from legitimate criticism of Israel into antisemitism, provisions are still not enough.
The revised Higher Education (Freedom of Speech) Act is a more balanced and supportive act than its predecessor. The original core values are retained while removing most of the problematic provisions. Yet, it would be remiss to believe that this change represents a true solution to the problems on campuses around the United Kingdom.
The act serves to create consequences for the most outrageous violations, the worst forms of racism, but it cannot address the subtle exclusions that define the lived experience of antisemitism. Genuine freedom of speech in academic discussion can only be achieved where all students can participate without any fear of harassment, exclusion or prejudice. We are still far from this ultimate goal, as Jewish and Israeli students still live with the everyday fears of expressing their identities.
This legislation marks the beginning of our responsibilities, not the end. The government, and universities themselves, must work to change cultures, challenge prejudices and create truly inclusive academic environments. There is a long and demanding road ahead, and it will require a lot of courage on all fronts to head down it.
- Gavriel Sacks is a Cambridge student and fellow at the Pinsker Centre, a campus free speech think tank.
