The HEFOSA: where are we now?
Abhishek Saha gave the opening talk at the AFAF Annual Conference held at Conway Hall, London, on 23 November 2024. It is essential reading for anyone interested in the history and future of the act (if it has any).
At the AFAF conference a year ago, the situation with the Higher Education (Freedom of Speech) Act, or HEFOSA, seemed clear. The Act had passed six months earlier, the fantastic Arif Ahmed had been appointed as the Director for Free Speech and Academic Freedom, and work on implementation was beginning. Most of us were under the impression that all the key provisions of the Act would come into effect on Aug 1 this year, and a new era would begin.
Yet, incredibly, here we are today and the situation is much less clear than it was a year ago. Unfortunately, I cannot give you any answers about the future, but I can try and tell you where we are at present. But before I get to the present situation, let me begin by going briefly over the history of this vital Act and what it does.
The Bill for HEFOSA was introduced in May 2021, following intense efforts by free speech campaigners. In the years leading up to its introduction, it had become clear to all who would look that a free speech crisis on campus was unfolding. No-platforming of speakers had become commonplace. Academics were being sanctioned by their own institutions for expressing lawful but controversial points of view in their work. And all this created a pervasive chilling effect and self-censorship among academics and students.
The Bill immediately faced a bumpy ride. Its progress was unusually protracted, facing resistance at nearly every stage. It took over a year to get to the Lords, where it faced significant opposition. The statutory tort provision of the Bill proved to be especially controversial, and on 7th December 2022, the House of Lords voted to remove the statutory tort clause completely, severely weakening it.
In response, various groups of academics and campaigners, myself included, wrote to Claire Coutinho, the minister in charge of the Bill, urging her to reinstate the tort. To her great credit, she took these concerns seriously.
On 7th February 2023, Claire Coutinho brought back the tort in full, citing her conversations with leading academics. An extended period of back-and-forth deliberations between the Houses of Parliament followed. Ultimately, a compromise was reached with the tort, and the Bill passed on 10th May 2023, becoming an Act of parliament.
So what does the Act do? First of all, HEFOSA applies to universities and student unions only in England (not Scotland, Wales, or Northern Ireland). It introduces duties to take reasonably practicable steps – with particular regard to the importance of free speech – to ensure that freedom of speech and academic freedom within the law for staff, students and visiting speakers is secured. It also requires universities and student unions to maintain a Code of Practice for Free Speech, and for universities to actively promote the importance of free speech.
These duties as set out by HEFOSA were not entirely novel; many of them were just upgraded versions of their existing duties under the Education Act (1986) and the Human Rights Act (1998). But what set HEFOSA truly apart was that it created for the first time effective enforcement mechanisms for universities’ free speech duties.
It created a new position of Director for Freedom of Speech and Academic Freedom, who would sit on the board of the regulator OfS — and act as a “free speech tsar” for universities. The Director would oversee a new free-speech complaints scheme that would be completely free to use. The second key enforcement provision was the statutory tort provision — this was a legal backstop allowing affected persons to take universities to court for breaching their free speech rights. These enforcement provisions make HEFOSA a hugely important piece of legislation. In my view, it is one of the most inspiring, vital, and significant pieces of legislation on higher education in living memory.
After the Act passed, there followed 12 months of optimism and genuine victories.
On June 1, 2023, the government announced that the inaugural Director for Freedom of Speech and Academic Freedom at the OfS would be Professor Arif Ahmed, a leading advocate for free speech and academic freedom. I think everyone here would agree that he was an absolutely fantastic choice for this role.
In September 2023, the OfS under Ahmed announced that the remaining key provisions of the Act — including the new duties and the two crucial enforcement mechanisms — would come into force on August 1, 2024 to ensure universities have time to prepare. In December 2023, it set out proposed rules for the new free speech complaints scheme scheduled to come into force from August 2024. Most free speech groups in the UK were extremely positive about the robust OfS proposals. Unsurprisingly, universities and sector groups responded to the proposed rules much more negatively.
In March 2024, the OfS published a draft guidance for consultation to explain the steps expected of universities and student unions to comply with the new Act. It was an inspiring, exhilarating and liberating document – we had never seen anything like this. It covered virtually every issue that academic freedom advocates had been raising futilely for years.
In late April, the UK government laid the statutory instrument required for activating the remaining provisions of this Act. It was now fully official that these key provisions would be coming into force on August 1 as planned.
To me, this period earlier this year was the high point. It was an exhilarating time. We were on the cusp of victory. As Bryn Harris, the Chief Legal Counsel of the Free Speech Union tweeted in May:
“Clever opponents simply talked past it & didn’t engage: ‘there isn’t a problem to debate here – cancel culture doesn’t exist haha.’ […] Skip forward to the present: the sensibles have lost an argument that they simply tried to talk past, and under Arif Ahmed the OfS is proposing a regime so radically pro-free speech it could have been written by the Free Speech Union. Not so clever now.”
Then it all changed.
On May 22, 2024, Prime Minister Rishi Sunak, standing before 10 Downing Street, unexpectedly announced a snap general election to be held on July 4, months earlier than anticipated. We all know what happened at the election.
On 5th July, Bridget Phillipson was appointed as the Secretary of State for Education. To Phillipson, the Act was a piece of unnecessary Tory legislation passed to fight political culture wars. In a speech the previous year, she had described the OfS as a “politicised regulator”.
At 9:40 am on Friday July 26, Phillipson released a written statement announcing her decision to stop further commencement of the Higher Education (Freedom of Speech) Act 2023, just 6 days before the key provisions were due to come into effect.
I think it is fair to say that Phillipson’s decision came as a shock to many of us, and it seemed clear from her initial statement that her preferred course of action would be to swiftly repeal the act.
However, I believe the government has since been taken aback by the strength and breadth of the outcry in response to their decision, especially from prominent academics.
There have been numerous articles criticising the decision throughout the summer and the autumn. It has become clear that every single reason offered by the government for stopping commencement had been extensively debated during the passage of the Bill.
There was an open letter signed by over 650 academics, including 7 Nobel laureates, defending HEFOSA and urging the government to activate it.
In parallel, there is legal action happening. The Free Speech Union has received permission for a judicial review of Phillipson’s decision. The hearing will take place in the High Court on January 23, 2025. The two grounds for the challenge are: first, the Act did not give Phillipson the power to revoke the statutory instrument, and secondly, in taking this hasty decision, she failed to act in accordance with the public sector equality duty.
There has also been lobbying going on behind the scenes from representatives of academic freedom organisations. These started with letters and led to several meetings. I have been part of three meetings so far, which I can say a few words about.
On August 20, several representatives of AFAF, CAF, and LUCAF, myself and Dennis among them, met DfE officials to put forth our views. We explained to these officials that the Act was needed precisely because universities were not protecting free speech and academic freedom adequately in the existing framework. Any recent improvements in the free speech climate were due to the expectation of the Act coming to force; following the pause of the Act these had already stalled and were now reversing. This issue was not going to go away and we were going to keep writing about it. We asked for a further meeting with the Minister for universities and skills, Baroness Jacqui Smith.
We met Jacqui Smith on September 18. She thanked us for meeting her and stated that she did agree that there was an issue with inadequate protection of free speech on university campuses. We told her that universities were unlikely to protect free speech and academic freedom without enforceable legislation. We stressed to her about the importance of the complaints scheme and the statutory tort. Minister Smith assured us they were genuinely listening.
On 12th November, representatives of LUCAF, AFFS, CAF and Academy of Ideas, including myself, met DfE officials again in an attempt to figure out exactly which provisions concern the government and to see if we can reach some common ground. It was an inconclusive meeting, but we got the impression that the government knows they are in a hole but are not sure how to get out.
So that’s where we are at right now. I wish I had a crystal ball, but unfortunately, I do not. There are three things that could happen in the future.
One, the government could just repeal the Act. This may well be Bridget Phillipson’s preferred course. However, this would take parliamentary time, and there is a question of whether Labour have appetite for this.
Two, the government could partially commence the Act. This may well be Jacqui Smith’s preferred course. If this is what happens, a lot from our point of view would depend on which provisions they choose to not commence.
Three, the government could just let it lie and do nothing about the Act, neither activating it nor repealing it. Note however, that this would collide with the Free Speech Union judicial review. It seems to me that this big legal case coming up in January may impel them to say something about their plan with the future of the HEFOSA.
*Abhishek Saha is professor of mathematics at Queen Mary University of London. He is the co-convenor of the QMUL AFAF Branch and a founder member of the London Universities’ Council for Academic Freedom.
