Pressure to act on free speech issues could prompt a Labour rethink of new rules designed to tackle “cancel culture” on English campuses after the party postponed their implementation – but the temptation to leave things in stasis may also prove too great.
Campaigners believe that the education secretary, Bridget Phillipson, underestimated the reaction to her decision to pause the Free Speech (Higher Education) Act days before it was due to come into force, with more than 650 academics signing a letter in opposition to the move.
Major cultural figures including the actor Stephen Fry and the author Ian McEwan have become the latest to speak out in support of the act, which hands the Office for Students (OfS) powers to investigate free speech complaints, writing in The Times that it “offers our best hope of restoring a more tolerant climate” at universities.
Ms Phillipson has said the act was paused to consider next steps, and her department has promised that its future will be confirmed “as soon as possible”.
“My sense is they have come up against a lot more opposition than they thought they were going to, and they would be wise to save at least some of the act,” said Edward Skidelsky, a lecturer in philosophy at the University of Exeter and director of the Committee for Academic Freedom.
He said he felt there had been a “shift in attitude” among ministers who initially tried to frame the legislation as a “Tory hate speech charter”, and there was a growing realisation that it has support from across the political spectrum.
Dr Skidelsky said his group wanted to see the whole of the act retained, but placed particular importance on the OfS complaints scheme and the statutory tort provision, which allows complainants to sue universities.
The tort, however, could prove to be one of the parts of the act that Labour decides to scrap, said James Murray, legal director at the law firm Doyle Clayton, given the opposition to it within universities amid concerns about “vexatious claims”. It was previously removed from the act in the House of Lords before being reinstated by the previous government.
Other parts of the act that may be dropped should Labour wish to revisit the legislation include the sections on students’ unions and foreign investment, according to Mr Murray, but he predicted that the complaints scheme would be kept as a way of balancing criticism over the revocation and concerns raised by universities.
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Smita Jamdar, head of education at the law firm Shakespeare Martineau, said she sensed little enthusiasm in the government to attempt to reform the act, which had already come through a “contentious” two-year legislative process – but added that Labour was unlikely to implement it as it stands, meaning that ministers could “just let it lie”.
“Even if lots and lots of people are saying reverse the decision, there’s no imperative to do anything about it right now,” Ms Jamdar said.
The Free Speech Union has initiated a judicial review of the decision to pause the act, with a hearing set for 23 January, claiming that Ms Phillipson “acted illegally” in overriding a parliamentary decision.
But Ms Jamdar said there are other bits of legislation that have never been implemented, and it will be harder to challenge a decision not to commence as opposed to if it had been scrapped outright.
