The Higher Education (Freedom of Speech) Act 2023

The Act comes into force in August 2024 and promises some useful and cheaper routes as an alternative to court to compel Universities and Student Unions to respect the rule of law

In March 2024, I wrote about how I was unceremoniously dumped as an invited speaker at Bristol University by the Bristol University Bar Student Society, after the Student Union helped them understand I was ‘definitely not’ the kind of person they wanted to associate with, due to my views about the immutable reality of sex. This was of course, a shame, as the Bar Society had invited me to speak about being a disabled barrister. I could have reassured them, had they bothered to ask, that my talk would have involved zero focus or interest in gender identity ideology and I am reasonably confident I could have restrained myself from attempting to punch any nearby non binary student.

The University itself expressed a wish that the talk would go ahead – one may raise a slightly sceptical eyebrow at this when you recall they also wished to have time to arrange security for the crazed and baying mob that was a ‘high risk’ of attending once it was known I was appearing. Rhianwen Daniel wrote about such ‘soft cancellation’ or ‘death by Red Tape’ in the Critic on 20th June 2024. However, it is progress of sorts that the University at least gave superficial recognition to the fact that it could not ‘cancel’ me for my lawful and protected belief.

I tried to get the Bar Society and the Student Union to explain exactly what it was about my protected belief that made me unfit to step on their campus but unsurprisingly answer came there none. I contemplated legal action and spoke to specialist solicitors but when warned that the potential costs of legal action could reach £100K, I decided that the game was not worth the candle, given the time consuming and incredibly expensive endeavour that ‘access to justice’ has become in our country. And I could not in good conscience ask people to donate to a crowdfunder when there remains so many other urgent and pressing claims.

Time and money are the biggest downsides to ‘LawFare’ – otherwise my absolutely favourite strategy of bringing these outrageous bigots to heel. We have to make sure we engage strategically and where the gains will have the most impact.

However, hopefully at least in so far as Universities are concerned, by 1^st August 2024 we will have a different and less financially ruinous alternative to introducing Universities and its students to alarmingly what appears to so many of them as the novel concept of ‘the rule of law’ - specifically, ‘you may not unlawfully discriminate against a protected characteristic’.

I contacted the Department of Education over my concerns about what had happened to me and they provided a helpful reply as follows

As you may be aware the government has legislated to ensure that universities in England are a place where academics, students and visiting speakers can express a diverse range of views without fear of repercussion. The Higher Education (Freedom of Speech) Act 2023 strengthens existing freedom of speech duties placed upon higher education providers in England. It creates a new duty for providers to promote the importance of freedom of speech and creates new routes of redress if these duties are breached. It also extends free speech duties to students’ unions.

The main provisions of this Act will come into force on 1 August 2024.  We are working in collaboration with the Office for Students [OfS] to implement the Act, which will involve the creation of new registration conditions and a complaints scheme dedicated to handling freedom of speech complaints, which will be operated by the OfS. The OfS has already launched three consultations on this matter, which can be found here:

https://www.officeforstudents.org.uk/publications/consultations/.

The third consultation on proposed regulatory advice is open until 26 May 2024.
Currently, the OfS regulates matters relating to free speech and academic freedom through the conditions of registration concerning management and governance. The government and OfS do not currently have a direct role in dealing with disputes between individuals and universities or colleges about free speech or other matters. However, the OfS does want to hear about free speech issues through their ‘notifications’ process:

https://www.officeforstudents.org.uk/advice-and-guidance/quality-and-standards/freedom-of-speech/raising-concerns-about-free-speech/

I will raise a notification with the OfS and let them know what happened to me. I urge everyone in the same position to do so and to take full advantage of the new law when it is in force. That Student Unions will be brought to heel and made to respect the rule of law is really excellent news, given their appalling track record so far.

On the one hand, I would like to thank the Bristol University Bar Society – you have helped me dodge a bullet. I can now turn down requests for help from students with a clear conscience and thus free up more valuable time for arguing with lunatics on line, my very favourite hobby.

On the other hand I do worry about the kind of world you believe you live in. You may find, should your careers at the Bar flourish – and I hope they do – that critical thinking, analytical skills and respect for the rule of law, are essential for whichever branch of the profession you join. And that unthinking bigotry against a protected belief is contrary to what will be your professional Code of Conduct.

You will meet many different clients over the course of what I am sure will be long and illustrious careers. You must represent each and every one of them to the best of your ability, regardless of your personal distaste for their politics or beliefs. If you cannot put your own ignorance or prejudice aside, if you think your personal philosophy carries more weight than the actual law - then you are fit for no profession, but most definitely not the Bar. I wish you the best of luck.

If of interest, I set out the entire unedifying chronology below

Bristol University EDI Discrimination

Chronology

24/1/24

2.40pm

Invitation for University of Bristol Bar Society to SP to speak at ‘No Bar to the Bar Diversity Talk ‘on Feb 14^th due to her ‘inspiring practice’ and ‘continuous support of our society’

25/01/24

SP replies to accept on proviso that it is understood she has negative perceptions of the overall effectiveness of EDI policies and frameworks

26/1/24

UoB Bar Society reply to say that is ‘perfectly fine!’

SP replies to say she will await further instructions.

31/01/24

UoB email SP to ask if date can change to 13 or 26 February, due to concerns about clash with Valentines Day

SP replies to say she can do 13^th Feb.

8/2/24

9.32am

Email re Short notice request come through, ‘my sense is there may be need for security given the speaker’s views on gender’

Rated ‘medium risk’ re event attracting heightened media interest and the speaker has attracted controversy and/or may mobilise significant opposition

Response from Security Services Team at 15.23 – will look at this first thing

9/2/24

12.26 pm

Email from Security Services Team to ?

Agrees that security is required after reviewing SP ‘online presence and views’

9/2/24

12.40pm

Email from Security Services Team re short notice external speaker request; have reflected and discussed with Police. Given the potential for protest relating to people with views on Trans, require 21 days notice to plan security response

9/2/24

13.35

Email

Thank you for your recent external speaker request for Sarah Phillimore, event title ‘Diversity at the Bar’. As per the external speaker policy we require requests to be submitted at least 21 days ahead of the event to allow us sufficient time to review through our standard processes and liaise with the relevant departments. Due to the sensitivities surrounding some of the speakers published beliefs and our experience of similar speakers we would rate the risk of protest as high and requiring a physical security presence.

Advice is to postpone event to give at least 21 days notice

Go ahead with event but move to external venue.

10/2/24

11.09

UoB Bar Society email SP to say

I’m awfully sorry, our Social Sec has made me aware that the Student Union services have now said that they need 3 weeks to discuss having the talk due to the ‘sensitivities’ of a talk on diversity and that they will need security for the talk. None is available on the day.

We are very keen on holding the talk as diversity at the Bar is very important to our society.

Would you be open to reorganising the event, at your convenience of course?

10/2/24

12.25 pm

Email

No worries at all, I think the best plan is probably to postpone the event and I will ensure there is adequate time to plan for the event and any further events in the future. Would you be able to explain the 'high risk' label you allocated the external speaker? I incorrectly identified it as low risk, is this due to the nature of the talk being on diversity in particular? I want to ensure I can correctly identify risk levels going forward.

11/2/24

SP emails UoB Bar Soc expressing disappointment I sadly make a further bet with myself that this event will never happen – at least not with me as one of the invitees and I think this marks the further debasement of our Universities

12/2/24

9.20am

Email  - all sender details redacted.

When we assess external speakers we are 1 risk with a view to ensure that events can go ahead safely for all who are involved. Sarah Phillimore is publicly open about their views on gender ideology, a topic which in our experience has led to some events being protested by students and members of the public, hence a need for a physical security presence. Whilst we understand the topic of the talk is diversity at the bar, when assessing the risk we must take into consideration the talk subject, the speaker themselves and their associated organisations. I want to be clear that we want our student group events to go ahead, but we do need to mitigate the risks and in this circumstance the short notice nature of the request just didn’t give sufficient time for Security Services to assemble a team due to existing commitments.

12/2/24

12.29pm

Email from Bar Soc? To SU? Thanks for getting back to me. We had no idea of this and I since have googled further so we are in discussion about whether it is best to go forward with this speaker or not. Thank you for flagging the issue! I will get back to you on whether the careers team decides to change speaker or postpone the event. As you can imagine, the talk is very important to our society, so we definitely need to have a further think about the best fit to best reflect the views of our society.

12/2/24

5.45pm

Email from SU? To Bar Soc? ‘No problem at all, we’re here to support in any way we can. I wonder if you might be available for a quick Teams meeting some time this week to talk through the speaker process in general and next steps for this event?

12/2/24

6.12 pm

Email from ? To Judith Squires to make her aware of external speaker request. Confident that matter has been dealt with in adherence to policies and procedure but notes that SP has expressed dissatisfaction via social media. UoB Bar Society have indicated they may not invite her in the future.

12/2/24

18.24

Email from Judith Squires Provost to ? Thanking for update

12/2/24

18.43

Email to Judith Squires from ? ‘I will pick up with you under separate copy along with the appropriate supporting members of my team’

13/2/24

07.15

Email from SU to ? ‘yes that sounds like a great idea’.

24/2/24

4.38pm

Email from Bar Soc? To SU? Sorry it took us a while to get back to you, our committee meeting was cancelled last week! We've decided Sarah Phillimore is definitely not the type of speaker we will host so have decided to think about alternative speakers for our diversity talk in line with suggestions from our equality and diversity officer.

26/2/24

07:07

Email from ? at Bristol SU to ? Requesting a Teams call to discuss

12/3/24

16.30

Email from UoB Bar Soc to say they have been contacted by University newspapers re SP Tweets, want a meeting to discuss next steps.

12/3/24

6.49pm

Email  (assume from UoB Bar Soc?) please can you explain a bit more context around the event and why public disorder was a concern, security being needed etc

13/2/24

9.36am

Email explaining duty to uphold freedom of expression, assess external speaker requests to allow events to go smoothly. This speaker may attract protest Had we been given the appropriate notice, I would have expected that this event would have been approved and could have gone ahead.

13/3/24

Email re SP substack article sending link

13/3/24

1.41pm

Email about SP substack article referencing DSAR to SU

13/3/24

14.01

Redacted email headed ‘Sarah Phillimore Article’

9/4/24

8.54am

SP sends email asking what has happened to the DSAR she made on 13^th March via post – it was not received, Bristol SU say it can be made electronically

9/5/24

Response from Bristol SU DSAR received with significant redactions

10/5/24

SP requests from Bristol SU and UoB Bar Society to identify which of her public utterances have lead to a conclusion that she is ‘definitely not’ the kind of speaker to be welcomed at the University and to provide that information by 24^th May.

SP also requests Bristol SU carry out a review of its redactions

14/05/24

SP emails her solicitor for advice as to way forward

15/5/24

SP emails Bristol SU again to request a timescale for its review of DSAR redactions or she will refer on to the ICO

24/5/24

Bristol SU review redactions and make some minimal changes.