I was a little shocked by Bridget Phillipson’s decision to torpedo the Higher Education (Freedom of Speech) Act on Friday.

In justifying this act of vandalism, the Education Secretary said the legislation would have imposed a “burdensome” new duty on universities to uphold free speech, trumping their obligations to protect the “safety and well-being of minority groups”.

When I read that I thought, “If only!” I don’t want to endanger the “safety” of minority students, obviously, but we all know what “safety” means in this context: psychological safety – as in “safe spaces” – rather than physical safety. When the Free Speech Union – an advocacy group I run – was involved in producing an early draft of the legislation, along with about a dozen dissident academics, we were acutely conscious of the way “safety” and “well-being” had been weaponised by woke activists to stifle academic freedom and free speech and hoped a change in the law would help universities to refocus on their core purpose.

The new free speech duties in the Act are subordinate to those set out in the European Convention on Human Rights

But as that draft became a bill, and as that bill wended its way through parliament, it was significantly watered down until the new free speech duties were virtually indistinguishable from those already imposed on universities by the Education (No. 2) Act 1986. Far from forcing universities – and only English universities, mind you – to prioritise academic freedom and free speech over their countervailing legal obligations, such as the need to comply with counterterrorism legislation and to protect students from harassment, it only asked them to uphold free speech “within the law”. Exactly what that meant was unclear, given that universities are faced with a morass of competing legal requirements – something the Russell Group complained about. 

Phillipson was keen to create the impression that she wanted to “protect” Jewish students from feeling unsafe and briefed the Times that the new Act would have made it harder for universities to deny a platform to Holocaust deniers. But that’s not true, something the Free Speech Union pointed out whenever this canard was repeated during the parliamentary debates.

The new free speech duties in the Act are subordinate to those set out in the European Convention on Human Rights and, as the European Court has made clear, Holocaust denial is not protected by Article 10. Moreover, the Act would only have required universities to take “reasonably practicable steps” to secure freedom of speech and it’s unlikely that any court in the land would decide that that included providing a platform to people touting malicious, intellectually meritless conspiracy theories.

Personally, I think Holocaust deniers should be free to set out their crackpot theories at universities so they can be comprehensively rebutted with evidence and reason, but that’s not something this Act would have made possible.

Listening to Phillipson set out her reasons for sabotaging the Act, it was as if she was describing the legislation that free speech absolutist like me had dreamt about, not the one that ended up on the statute books. In fact, the last government was at pains to placate the legislation‘s critics at every stage, particularly those in the higher education sector. The final version of the Bill was a model of diplomacy and, as such, it commanded cross-party support.

Which made Phillipson’s portrayal of the legislation as an example of the Conservatives’ ongoing “culture war” against Britain’s institutions brazenly dishonest. The Act didn’t just enjoy the support of Labour parliamentarians; it was enthusiastically endorsed by feminists concerned about attempts to silence gender critical views on campus, as well as academics wanting to explore the impact of the “affirmative care” approach on gender-confused adolescents – research that the Cass Review said was urgently needed. If anyone is guilty of prosecuting a “culture war”, it is Phillipson.

If you want to win the culture war, Phillipson has shown us how to do it

This, I think, goes to the heart of why she quashed the Act. In spite of its shortcomings, it would have gone some way to protecting dissenters in English universities, and while not all of them are conservatives, most are at odds with the radical progressive ideology that is the new orthodoxy on campus – and, it seems, in Keir Starmer’s Labour Party.

How would it have done this? Not by strengthening universities’ free speech duties, but by creating two mechanisms to ensure those duties were no longer more honoured in the breach than the observance.

In the first place, the Act created a new “free speech tsar” in the Office for Students (OfS) whom people could complain to if they believed a university had failed to uphold their right to freedom of expression. If the tsar upheld the complaint, he could impose a fine.

Second, it created a new statutory tort, which would have enabled students, academics and visiting speakers to apply for an emergency injunction in the event of being no-platformed or similar, as well as to sue a university if they’d exhausted the OfS route and their complaints weren’t upheld (although the courts would have given most claimants in this position short shrift).

Phillipson laughably said that complying with this new enforcement regime would have been “costly” for universities. But according to the Department for Education’s impact assessment, the compliance cost was estimated to be £4.7 million a year. To put this in perspective, English universities spent £550 million on Access and Participation Plans in 2020-21, a figure expected to rise to £565 million in 2024-25.

No, Phillipson’s reason for opposing the Act is because, in the absence of these two mechanisms, universities will be free to continue to pay lip service to free speech while doing little to protect anyone who dissents from woke dogma. As for the Jewish students Phillipson purports to care so much about, they will no longer have any redress when universities fail to stop campus radicals no-platforming them when they try to defend the state of Israel.

I have to confess to some grudging admiration for Phillipson. In one stroke, she has been far bolder than any of her Tory predecessors in the last 10 years. I detest her ideology and believe that doing nothing to counter the wave of intolerance sweeping our universities means they will soon lose their “world class” status. But, by God, she’s a far more brutal political combatant than the enfeebled Tories. If you want to win the culture war, Phillipson has shown us how to do it.