Where are we now on freedom of speech?

How might the recent OfS investigation affect the HE sector’s approach?

Freedom of speech and academic freedom have been hotly debated over recent years- particularly as a result of various Tribunal cases on belief, the Higher Education (Freedom of Speech) Act 2023 (HEFSA) and the strengthened position of the Office for Students with the appointment of Arif Ahmed as Director for Freedom of Speech and Academic Freedom. Notwithstanding the pausing of some of the implementation of HEFSA by the then incoming Labour government last July, and the subsequent rollback on some provisions (notably the civil claims provision and duties on student unions), the direction of travel has been largely one way. The recent regulatory decision of the OfS against the University of Sussex, and the £585,000 fine that came with it, has brought all of that into sharp focus. We’ll explore what might need to change…but first, the legal and regulatory framework:

The main legal concepts

• European Convention rights (primarily article 9 freedom of thought, conscience and religion and article 10 freedom of expression) which mean that individuals have the right to hold a belief and manifest or express it to others.
• Equality Act 2010 rights not to be discriminated against or harassed (including rights not to be discriminated against/harassed on ground of religion or belief, including philosophical belief).
• Section 43 Education Act (No 2) Act 1986 which requires HEIs to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. This includes protecting the intellectual independence of academics to question and test received views and wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in danger of losing their jobs or privileges or reducing the likelihood of them securing promotion or different roles at the university.
• Public Sector Equality duty (including the need to have regard to the eliminate discrimination, advance equality of opportunity and foster good relations).

The qualified nature of the ECHR rights and the interplay with other rights, including the Equality Act, means that in very many cases there is a need to reach an appropriate balance between competing or conflicting interests- as such rights can be interfered with if justified and in accordance with the law, necessary in a democratic society and in the interest of specified legitimate objectives (including the rights and freedoms of others).

The forthcoming changes under HEFSA

We are still waiting for the implementation phase of this Act, post its pause, though we know it will happen. So, a reminder of what it will cover:

• Extended free speech duties, including obligations to:
  • take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to secure freedom of speech within the law for its staff, members, students and visiting speakers; this includes, in relation to academic staff, securing their academic freedom
  • maintain a code of practice setting out matters relating to freedom of speech
  • promote the importance of freedom of speech within the law and of academic freedom for academic staff, in the provision of higher education
• Free speech complaints scheme to be administered by the OfS
• New condition of OfS registration to back all this.

 The current regulatory regime under the OfS

• Condition E1 (public interest governance- including freedom of speech and academic freedom)
• Condition E2 (management and governance)

The OfS and Sussex

It was under the existing regulatory regime that the University of Sussex was investigated at length by the OfS and found wanting on both conditions E1 and E2.  The underlying trigger for these failures was the introduction in November 2018 (and subsequent revisions) of a Trans and Non-Binary Equality Policy statement, and its impact on freedom of speech at Sussex- which the OfS described as “a chilling effect”. Over 21 pages, the OfS subjected the University of Sussex to considerable criticism not for the fact of the introduction of a policy per se, but the extent and effect of its scope, as well as the way in which it was introduced. The OfS concluded that four particular statements included within the policy breached condition E1as they failed to uphold freedom of speech and academic freedom, being statements in respect of:

• Positive representation
• Stereotyping
• Transphobic propaganda
• Disciplinary consequences

It’s fair to say that the University of Sussex found itself in the firing line following the significant publicity around the case of Professor Kathleen Stock, a feminist philosopher with “gender critical” views, who resigned her post following a campaign against her. The OfS reduced the level of the fine from its original baseline (based on the HEI’s qualifying income) given that this was the first such case related to freedom of speech. The University of Sussex has made clear their intent to commence judicial review proceedings against the OfS, seeking to overturn it.

But the policy had its origins in a specimen policy produced by Advance HE, which will have been consulted by many HEIs and adopted in a similar or revised form by many of them. Some will also have been influenced by their membership of charter marks; not surprisingly, many HEIs have now declared such policies under review.

What should we learn from all this?

Firstly, this is not simply a trans issue, and it’s critical that institutions do not look at it with a narrow focus. Other areas of policy could have similar consequences if the balance goes too far and silences dissenting voices. Consider the Israel/Gaza conflict, fossil fuels, climate change, critical race theory, decolonisation of the curriculum? All of these are issues where there can be a sectoral tendency to a “right side of history” and little tolerance for an alternative opinion. So, some thoughts:

• You will always need to place significant weight on securing freedom of speech and academic freedom within the law.
• You cannot change what speech is unlawful or illegal whatever you set out in policy or values.
• To manage your affairs in respect of teaching and research effectively, there must be some (albeit extremely limited) scope to place proportionate restrictions or constraints on free speech and academic freedom where there are compelling reasons to do so

In practice, this sets a very high hurdle and there will be very limited room to create restrictions on lawful speech; in particular it is likely to be extremely difficult to comply with free speech duties if you seek directly or indirectly to restrict the particular content of speech.

For instance, you might prefer to restrict speech because you have made a negative value judgement about the content of the speech; however, there is likely to be very limited scope to restrict lawful speech in this way.

There may be some scope for limited restrictions in respect of the time, place and manner of expression, if:

• there is a compelling justification for the restriction, and it is the least intrusive of the available options
• it does not amount to a de facto restriction on particular content of speech in practice
• Freedom of speech and academic freedom otherwise remain meaningful and effective rights

Remember, none of this prevents compliance with other legal obligations, including the harassment provisions of the Equality Act, so there is no need to turn back completely on DEI policies. The OfS decision is interesting insofar as it discusses those other obligations alongside its own regulatory framework. It suggests that where Universities seek to “gold plate” legal protections and go beyond the limitations applied by law they may well go too far and unlawfully limit freedom. And if nothing else, the level of the fine we’ve seen imposed gives a very clear reason to rethink…

Weightmans