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Have we been looking at free speech all wrong?

  • 24 January 2025

This blog was written by Rose Stephenson, Director of Policy and Advocacy at HEPI.

Free speech is back in the news. Implementing the Higher Education (Freedom of Speech) Act 2023 was paused shortly after the general election to allow time for the Secretary of State for Education, Bridget Philipson, to consider whether the law should be repealed.

Many expected that to be the case and were perhaps surprised to hear that the Government will implement the ‘Free Speech Act’ after all – with only two measures being considered for repeal – the duties placed on Student Unions and the statutory tort (the proposed legal route for individuals who suffer a loss due to a breach of their free speech). Bridget Philipson announced in the House of Commons that she proposes ‘keeping a complaints scheme in place with the OfS’. This scheme will consider complaints from staff, external speakers and university members, but not students (who can seek external review of a complaint with the Office of the Independent Adjudicator for Higher Education – the OIA). There are a couple of nerdy regulatory points to note here:

  1. There is still the possibility of the following scenario: A student raises a complaint of harassment from a member of staff. The institution concludes that the staff member did harass the student, and the staff member receives a written warning. The student believes that the outcome of the case was inappropriate and (following an unsuccessful appeal) takes the complaint to the OIA, who upholds the complaint and instructs the institution to compensate the student financially. The staff member feels that their free speech has been impinged by this process and raises a complaint with the OfS, who considers the complaint justified and instructs the institution to compensate the staff member financially. Therefore, we end up with a perverse scenario where two external bodies reach contradictory conclusions about the same event.
  • The OfS will not have a duty to assess every complaint it receives; rather, it will have the power to consider complaints. Bridget Philipson’s speech specifically mentioned the OfS not having to assess poorly put-together or nonsensical complaints. However, a robust, published decision-making framework will need to outline which cases the OfS will consider and which it will not, lest it be perceived that this loophole could be influenced by political persuasion.

Policy wonks and those who must implement this legislation in institutions wait with bated breath….

The quite extraordinary amount of time this legislation took to pass, plus the stopping and starting of its implementation, gave me time to ponder its practical implementation. I wonder if the focus of the free speech debate has missed the mark.

Thousands of column inches have been dedicated to discussing free speech in university, including my own previous blog series:

Much of the discussion has focussed on individual speakers being invited to campus to speak on particularly polarising topics. This may be an important part of promoting free speech, but if it doesn’t change anyone’s mind, is it just someone shouting into the void? Creating an in-person version of Twitter is unlikely to effectively promote free speech if only those who already agree with the speaker attend and those who feel offended by the topic or the speaker stay away. By almost solely focusing on this approach, we risk missing a significant opportunity.

I’ve reflected on the circumstances that have led me to change my mind or opinion – or just to be genuinely interested in someone’s different belief or values system. It was not someone yelling polarising opinions but a considered conversation with someone who thinks differently from me. I have the genuine privilege of working with colleagues from across the political spectrum and engaging in debate and discussion, often publicly, on a daily basis. My ideas and beliefs are constantly challenged and given a chance to develop.

One of the first lectures of my PGCE explained that ‘unlearning’ is much harder than learning. Therefore, if your pupils already believe that they know something, it is much more difficult to change their perception than to paint information on a blank canvas.

If we truly want to promote free speech, we have to teach the skills of unlearning: curiosity, open mindedness, resilience and tolerance. This isn’t to say that all students should change their minds or perceptions. This might happen, but what we also need to develop is the curiosity to understand why someone thinks or believes differently from us. What led them to this belief? Why is it important to them? And, in turn, why do we hold the belief that we do? What led us to that viewpoint and why is it important to us?

I appreciate that this becomes more complex when students’ own identities may be intertwined with these topics. While the right to speak freely is crucial, the choice to disengage from a topic that causes deep distress should also be respected. However, there are myriad interesting and challenging topics we can explore to learn from one another. One memorable experience from my time at the University of Bath was when a student explained to me that she found it patronising and incorrect for UK universities to teach that democracy was always the right way to organise society, especially when she observed greater poverty and inequality in the UK than in her home country. This didn’t alter my view on the importance of democratic rights or that it is the best way to organise society – but I’m so grateful that my ingrained belief and perception were challenged in this way and that I had the opportunity to consider an entire societal structure through the perspective of someone from a different background to my own.

This conversation occurred by chance. As universities strive to promote free speech amidst the new registration requirements, how can we encourage the sharing of diverse, and at times challenging, opinions? Additionally, how can we teach the skills not only to debate our own views but also to listen to the opinions of others? Stimulating debate is, of course, the foundation of university teaching and research, and many institutions create spaces for this to occur daily. However, with ongoing criticism that universities are stifling debate and the new regulations coming into effect, providers will need to formalise and promote these opportunities. (Please write a blog for us if you would like to highlight your best practice in this area!)

In the age of disinformation, where critical thinking is increasingly important, how can we expect students to critically analyse information shared by others if they cannot first critically analyse their own thoughts?

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3 comments

  1. Jeremy says:

    The regulatory points are interesting.

    On the first point: it should be possible to challenge decisions of both bodies via judicial review, so that may be a way of resolving the “perverse scenario”.

    On the second: it’s worth looking at what happens with similar existing frameworks. The Information Commissioner’s Office provides a useful point of comparison, since it handles two kinds of complaints, about Freedom of Information (where it has an obligation to act) and about data protection (where it has power but no obligation to act). The difference in outcomes is stark: the ICO eventually acts on every legitimate FoI complaint, but almost never acts on data protection complaints, although it takes care to hide that fact. To avoid creating another similarly useless body, the wording around “not having to assess poorly put-together or nonsensical complaints” will have to ensure that there’s no room either for political influence or for the OfS to adopt a policy of general ICO-like uselessness.

  2. Kevin J Brazant says:

    In response to the thought-provoking discussion on free speech, I’d argue that universities must shift from treating free speech as a procedural checkbox to cultivating it as an active, disruptive pedagogy. Free speech is not simply the right to speak but the ability to engage critically and courageously. The Higher Education (Freedom of Speech) Act opens the door to redefine this engagement, yet its focus risks being overly institutional rather than transformative.

    True intellectual disruption happens not when we merely invite polarising speakers or curate contrived debates but when we equip students with the tools to dismantle their own biases, confront cognitive dissonance, and listen deeply to perspectives that unsettle their core beliefs. As someone invested in disrupting the discourse in education, I advocate for embedding critical unlearning as a fundamental principle—challenging entrenched narratives and creating spaces where marginalised voices aren’t tokenised but amplified and centered.

    This is not about consensus; it is about courageous inquiry. If higher education fails to champion this, it risks producing graduates adept at defending their positions yet unequipped to navigate the complex, pluralistic world we inhabit. Free speech is not a debate to be won but a dialogue to be nurtured—and in that, lies its transformative power.

  3. Samuel Cameron says:

    You are distinguishing between freedom to think in the form of speech and a free for all to voice opinion which is what social media is. Students face several barriers to thinking critically nowadays. A chief one being ideologically motivated academic staff and policies such as decolonisation and trans right or on Israel- Palatine issues. Leeds university still has a person suspended from student radio for being critical of trans dogmas. Worse still and less well known they seem to have suppressed the case of biased opiniated marking by settling it with an nda in 2023. Currently you have to search deep into Jewish sources to find this case . The latest starmer ite J turn (half a u turn and a teen bit more) on this matter probably will make no difference in these cases. We do not have freedom of expression in universities if students are at risk
    of being marked down by ideologically motivated staff.

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