A big decision on freedom of speech

Office for Students and Sussex decision and fine overturned by the High Court

This is a very significant development, without question. You will have been aware that the University of Sussex had been heavily fined (over £0.5million) by the OfS following an investigation and Final Decision that the University had operated in breach of regulatory conditions. This related to a policy that Sussex had adopted in respect of its transgender staff and students which was largely based around an industry template provided by Advance HE and which the OfS had concluded resulted in a “chilling effect” on the freedom of speech at Sussex.

The original decision from the OfS was not without controversy- partly as a result of the subject matter of the underlying policy and the cultural climate relating to that particular issue, but more importantly because of the hard line and limits it appeared to impose on Universities seeking to effect any policy which might potentially have impacted on lawful free speech, including but not limited to any expectation that staff and students comply with “University values” or codes of conduct.

Last week the OfS adjudication and fine was overturned by the High Court. Key to that decision was:

• The policy in question was not considered to be a ”governing document” of the University, the OfS interpretation had been too wide to be workable
• The OfS had applied an “absolutist” approach to freedom of speech and had concluded that all freedom of speech within the law was protected, without appropriate consideration of the proper balance against other obligations and rights
• The OfS had considered the policy in question without putting it in proper context, particularly the Sussex’s Freedom of Speech Code of Practice, Safeguarding Statement and other protections for academic freedom
• The OfS had not considered whether various later policy revisions had remedied the issue.

So what might this mean?

In essence this puts us squarely back into proportionality territory. There will always be speech which falls squarely outside any need for such assessment for example where there is a criminal offence. However in most cases a balance has to be properly struck to meet the multiple expectations on Universities in this space, including in respect of competing human rights, the Equality Act (including the public sector equality duties) and now, the HE (Freedom of Speech) Act 2024.

The Sussex fine may now seem to have been an extreme. Sussex are claiming total vindication and seeking change at regulatory level, but some academics are clearly concerned about the possibility of “spoiler” objections and advance lecture scrutiny given the comments made in the judgment. What this means for the OfS and its credibility in this area remains open for debate.

As someone who has worked in and with the sector for many years, there is a natural tendency towards a progressive approach and this had sometimes led to concern to be seen to be on the “right side of history” in any conflict of views or a knee jerk reaction to any complaints. So the original OfS decision, taken alongside the HE(FOS)A 2023, has likely played a significant part in a shift in the dial and allowed more (lawful but contrary) views to be heard. HE(FOS)A 2023 remains a contentious piece of legislation in the sector - even following its more limited implementation and the complaints scheme arriving on September- will be another test of whether it can effect any real change in the longer term.

Our Higher Education specialist lawyers at Weightmans are hosting two events at the Conference, do come and join us on:

• 13 May at 12.45: Catastrophe! Managing Emergencies and High Profile Challenges with a HR -centric Approach
• 14 May at 12.00: HR v PR: The Line of Least Resistance?

Weightmans

Melanie Steed, Principal Associate