Category: Higher Education (Freedom of Speech) Bill 2021

  • OfS rebalances the free speech/harassment see-saw on antisemitism

    OfS rebalances the free speech/harassment see-saw on antisemitism

    The Union of Jewish Students (UJS) has published a fascinating new episode of “Yalla”, its podcast for Jewish students.

    Hosted by Louis Danka, who is the new President of UJS, the September 2025 episode features an extensive interview with Arif Ahmed, OfS’ Director for Freedom of Speech and Academic Freedom.

    The conversation comes weeks after the regulator’s new higher education free speech guidance came into force on August 1, 2025, alongside enhanced harassment protections.

    What makes the interview especially interesting is what it doesn’t mention – Ahmed’s reversal on the IHRA definition of antisemitism.

    In February 2021, Ahmed wrote in a HEPI blog that he was strongly against Gavin Williamson’s requirement that universities adopt the IHRA definition of anti-Semitism, arguing it obstructs perfectly legitimate defence of Palestinian rights and chills free speech:

    I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’re all allowed to change our minds on things. The issue is the extent to which the law, or the regulation he’s now in charge of, offers clarity on the volte-face.

    And while there’s plenty of helpful material in there on how OfS might approach casework and complaints, it does raise all sorts of questions about expectations – and OfS’ strategy for communicating what in some cases amounts to significant additions and clarifications to its guidance.

    What the podcast says

    The interview centres on what I’ve previously described as the twin sandbags on the regulatory see-saw – the Higher Education (Freedom of Speech) Act 2023 and the E6 condition on harassment and sexual misconduct.

    A central theme throughout is UJS’ contention of a deteriorating campus environment for Jewish students. Ahmed acknowledges there has been “a big rise in antisemitic incidents in recent years, on campus, in the country more generally” and describes this as a source of “grave concern” for OfS.

    The discussion then considers how this manifests practically on campuses. Ahmed describes, for example, scenarios where Jewish students may feel unable to attend lectures due to protest activity, or where “protests outside Jewish accommodation” create hostile environments.

    He first emphasises that while “political ideas expressed in the protests may be perfectly awful and expressible,” universities can still regulate their “time, place and manner” – such that core functions can keep going.

    Hence on protest regulation, Ahmed says:

    …if you have protests that take place in such a way that Jewish students don’t feel able to attend lectures … it may also be right for the university say, well, you can’t do it here, and you can’t do it in this place, and you can’t have it every day outside a lecture theatre.

    He also points to protests outside Jewish accommodation as another context where restrictions could be justified.

    Ahmed’s contemporary position on IHRA is explained as follows:

    …we ourselves have adopted the IHRA definition, and we do think it can be a very useful tool for understanding modern antisemitism.

    He adds that there is “no obstacle, in principle” for universities adopting a particular definition, and “certainly not” the IHRA working definition.

    He clarifies that it is “absolutely compatible” with the guidance, provided it’s being used properly as a way to understand antisemitism rather than to suppress lawful and legitimate debate. That latter caveat may represent the only vestige of his previous concerns about IHRA chilling Palestinian rights advocacy.

    The published guidance takes an uncompromising stance on Holocaust denial, where Ahmed explains this was made explicit after consultation feedback seeking clarity:

    …we will not under any circumstances protect Holocaust denial, so nothing that we do in our complaint scheme or otherwise will protect that speech.

    With the more obvious stuff out of the way, the subsequent nuanced discussion involves distinguishing between legitimate political discourse and antisemitic harassment, particularly around coded language.

    Ahmed addresses scenarios like “Zionists off our campus” signs, explaining that context is crucial. On coded antisemitism, Ahmed explains:

    …very often when people use the expression “Zionist”, for instance, it can actually be used as a kind of euphemistic expression meaning Jewish people, and in the circumstances where that’s so it seems very much more likely to be something that’s targeted at individuals because of their race, because of their religion.

    He then distinguishes between attacking ideas versus targeting individuals, noting that speech “directed at ideas” differs from speech that makes individuals feel excluded because of their protected characteristic.

    Ahmed is at pains to point out that freedom of speech encompasses religious expression, making Jewish students’ ability to practice their faith a free speech issue. He also describes scenarios where Jewish students might hide religious symbols like Stars of David due to campus hostility. He then explains the religious expression dimension:

    …if you have an atmosphere on campus which is allowed to grow, which grew, Jewish students are intimidated out of expressing their own religion, that’s that’s an affront to their freedom of speech.

    The interview also explores “chilling effects” – where students self-censor rather than face consequences. Ahmed describes situations where students with pro-Israel views or Jewish religious expression might “decide not to say it in the first place” due to fears about academic consequences or social ostracism.

    Nevertheless, he repeatedly stresses that harassment determinations require objective analysis, not just subjective feelings. He explains that the legal test involves whether:

    …a reasonable person would think that was… creating an intimidating atmosphere for people because of their race, because of their religion.

    And on that point:

    …it’s not enough, for speech to count as harassment, that the person at the receiving end feels offended; what’s important is that a reasonable person would think that was so.

    He concludes by stressing that freedom of speech “historically… most protects minorities and those… for whom their voice and their words are the only things that they have.”

    What the papers say

    The Jewish News coverage of Ahmed’s podcast exemplifies how the reassuring rhetoric translates into heightened community expectations.

    The headline itself – “Free speech tsar tells universities: stop intimidation of Jewish students” – frames Ahmed’s nuanced legal discussion as a clear directive for immediate action.

    The article’s language amplifies Ahmed’s confidence, presenting his tentative statements (“it may also be right for the university to say”) as firm commitments (“universities must take firm steps”) and his regulatory expectations (“we would expect universities to take action”) as binding obligations.

    The coverage also amps up specific protections – Jewish students’ ability to attend lectures, enter accommodation, and express their religion – without conveying the complex legal determinations universities might need to navigate to provide that protection.

    Ahmed’s discussion of “coded language” becomes a promise that universities can identify and restrict antisemitic euphemisms, while his IHRA compatibility statements are presented as resolving rather than acknowledging ongoing tensions between free speech and antisemitism prevention.

    Most tellingly, UJS President Louis Danker’s response reveals both the raised expectations and their fragility. While expressing satisfaction that “the Office for Students shares our concerns,” he acknowledges that “the ambiguity of the guidance will be challenged by crucial test cases in the coming months.”

    This tension, between reassurance about shared concerns and worry about guidance ambiguity, captures the potential problem that OfS has created – confident promises built on uncertain legal foundations that will inevitably face testing in precisely the complex scenarios that the framework struggles to address.

    What the podcast doesn’t say

    The central question is whether the reassuring statements to Jewish students align with what universities can actually deliver under existing legal frameworks.

    If we take holocaust denial, for example, Ahmed demonstrates clear understanding:

    Article 17 says that none of these rights can be used, essentially to destroy other people’s rights. So speech that aims to destroy others rights… the courts have found, for instance, that many instances of Holocaust denial they’ve looked at, fall under it.

    That explanation appears to be legally accurate. Article 17 is sometimes called the “abuse clause” of the European Convention – it strips protection from speech that aims to destroy the rights of others, such as Holocaust denial.

    But the guidance leaves the explanation out, simply declaring Holocaust denial unprotected without explaining why – or when. That omission matters, because Article 17 normally operates alongside Article 10(2) – another part of the Convention that allows restrictions on speech if they are necessary and proportionate to protect others.

    As a reminder, the OfS guidance’s three-step framework treats human rights considerations as sequential rather than integrated:

    Step 1 asks simply whether speech is “within the law” – defined as speech not prohibited by primary legislation, legal precedent, or secondary legislation. Crucially, university regulations and contracts don’t count as “law” here. If not, don’t allow it. If it is, move to Step 2.

    Step 2 considers whether there are “reasonably practicable steps” to enable the speech. Universities should consider factors like legal requirements (including any formal duties), maintaining essential functions, and physical safety – but explicitly cannot consider the viewpoint expressed, whether it’s controversial, or reputational impact. If steps can be taken, take them. If not, move to Step 3.

    Step 3 – which is only reached if no reasonably practicable steps exist – then asks whether any restrictions are “prescribed by law” and proportionate under the European Convention. This involves checking if there’s a specific legal rule authorising the restriction, and runs through a four-part proportionality test weighing the importance of the objective against the severity of limiting the right.

    That proportionality test looks something like this:

    • Is the objective important enough? – The reason for restricting speech must be sufficiently weighty to justify limiting a fundamental right.
    • Is the restriction rationally connected? – The measure must actually help achieve the objective, not just be vaguely related to it.
    • Is this the least restrictive option? – Could you achieve the same goal with less impact on free speech? If yes, you must use the less intrusive approach.
    • Does the benefit outweigh the harm? – Even if the first three tests are met, you must still balance the severity of restricting speech against how much the restriction actually helps achieve your objective. The restriction fails if the damage to free expression outweighs the benefit gained.

    As I’ve noted before on here, the published approach seems to conflict with Minasyan v Armenia (2019), where the European Court of Human Rights struck down Armenia’s handling of a protest case. The Armenian courts had first checked whether protesters broke domestic criminal law, and only afterwards asked whether their free speech rights were engaged.

    Strasbourg was clear – you can’t separate those steps. The balancing of rights under Article 10(2) has to be done at the outset. So when the guidance asks universities to check domestic criminal law first and only consider broader human rights implications as an afterthought, the sequential framework seems to repeat the flaw that Strasbourg condemned.

    Meanwhile, Ahmed seems to correctly state the objective harassment test:

    …it’s not enough. Speech to count as harassment, that the person at the receiving end feels offended… what’s important is that a reasonable person would think that was so.

    But his practical applications consistently reference subjective experiences without clear frameworks for objective assessment. He discusses Jewish students feeling “unable to attend lectures” or “intimidated out of expressing their own religion” – but then offers up little on how universities should distinguish between justified concerns and unfounded complaints.

    The “reasonable person” test sounds simple, but in practice it is one of the hardest questions courts face. Would an average observer see this as harassment, taking into account context, repetition, and effect?

    Judges often split over the answer, even with days of evidence. Expecting university or SU staff to make that call in real time, during a protest or at a room-booking stage, is asking staff to perform complex human rights analyses on the fly. Clarity on what he might expect is reasonable in those scenarios would help.

    Ahmed’s discussion of antisemitic language also illustrates the analytical burden placed on those enforcing or explaining rules day to day:

    …very often when people use the expression Zionist, for instance, they can actually, can actually be used as a kind of euphemistic expression meaning Jewish people.

    Determining when “Zionist” functions as coded antisemitism requires careful analysis of speaker intent, contextual factors, and impact on targeted individuals. These are determinations that typically require evidence about speaker’s background and previous statements, analysis of the specific context and setting, an assessment of audience understanding and reaction, and an evaluation of the targeting effects on specific individuals.

    Day to day, staff may well lack both the investigative capacity and legal expertise to perform those sorts of analyses reliably. Ahmed acknowledges the complexity – “it might depend on context” – but doesn’t offer anything like a practical methodology for making the determinations.

    The UK Supreme Court in Elan-Cane (2021) stressed that domestic bodies should not push human rights analysis beyond what the European Court of Human Rights has already recognised. Lord Reed warned against overstepping into areas Strasbourg had not yet endorsed.

    Ahmed’s framework arguably asks universities to do exactly that – making human rights calls (on protests, coded language, or harassment) that even the courts approach with extreme caution.

    If legally trained judges with full procedural protections must be cautious about extending human rights analysis, how can staff be expected to perform similar determinations through internal processes? Is OfS fit to do so when it gets a complaint in? And what are the penalties for getting it wrong?

    Rights collision

    Another silence in the interview is how to handle the collision of rights. He clearly anchors harassment to protected characteristics like race and religion, and he treats Zionism as an idea that can be lawfully discussed – while warning it is sometimes used as a euphemism for “Jew” in context. He doesn’t quite say “Zionism is a protected belief” in terms, though that would be the likely legal position under Equality Act case law. The same goes for anti-Zionism.

    Under UK equality law, political and philosophical beliefs qualify for protection if they meet what’s known as the Grainger criteria – that is, the belief must be genuinely held, relate to a weighty aspect of human life, attain a certain level of seriousness and cogency, and be worthy of respect in a democratic society.

    Courts have already recognised beliefs such as environmentalism, gender-critical feminism, and ethical veganism under this test. Anti-Zionism looks like it would qualify on the same basis, provided it is expressed as a coherent political or philosophical position rather than as a proxy for antisemitism.

    What he does not explain is what universities should do when the protections appear to come into direct conflict or quite how a university is supposed to differentiate between the political or philosophical position and the proxy.

    Let’s imagine a student holding a placard reading “Zionism is racism” and another responding that “anti-Zionism is antisemitism.” Both statements can amount to the expression of protected beliefs under the Equality Act. Both students might also claim they are being harassed by the other.

    Courts take weeks to sift through context, intent, and impact in such cases – weighing not just Article 10 free speech but also Article 9 (religion), Article 8 (private life) and Article 11 (assembly).

    On balance, “Zionists off campus” feels like it targets a group of people. Those banned from painting it on a banner may feel their speech is being chilled. “Zionism off campus” feels more like a protected piece of political expression. Some reading that may feel harassed. Complaints in either event are likely.

    Recent cases show how fraught these clashes can be. In Forstater v CGD Europe, the tribunal upheld that gender-critical beliefs were protected, even though many found them offensive – but also emphasised that protection for a belief does not mean protection for every manifestation of it.

    In Mackereth v DWP, the tribunal held that a doctor’s refusal to use trans patients’ pronouns could lawfully be limited, despite his Christian beliefs being protected. The principle is clear – both Zionism and anti-Zionism can be protected, but the way they are expressed may still lawfully be restricted if it harasses others.

    What’s missing from Ahmed’s account is the extent to which universities are expected to perform that fine distinction in real time, and at which stage of a process they’re expected to do so.

    What now?

    The danger in all of this is a form of regulatory false advertising – promising protection through frameworks that universities cannot properly execute without risking legal challenge or practical failure.

    The focus on context is welcome, but it doesn’t solve the core problem – the absence of a practical framework for when and how to balance competing rights. Without it, institutions risk inconsistency, overreach, or paralysis – either censoring lawful political expression or failing to protect students from harassment.

    The reassuring tone also suggests clearer legal boundaries than actually exist. When he says that universities “would expect to take action” about intimidatory speech, he presents complex, fact-specific determinations as straightforward administrative decisions.

    It’s a false certainty that may mislead universities into thinking they have clear authority to restrict speech, and could simultaneously raise student expectations about protection that may prove impossible to deliver.

    Then the style compounds the problem. In the podcast and coverage of it, Jewish students hear confident reassurances; in the consultation response annex, Article 17 is quietly acknowledged; in public guidance, proportionality is all but absent from the “within the law” test.

    The impression is of a regulator telling each audience what it wants to hear by pointing at one end of the see-saw, rather than grappling with the hard edges of the case law in ways that may temper expectations rather than raise them.

    And given both the free speech guidance and the E6 guidance drives home the need to get these messages into the heads of students themselves, there’s certainly nothing in there on how universities are supposed to explain all of this to students.

    It leaves universities (and by proxy their SUs) stuck in the impossible position that they have been for months.

    They remain caught between those heavy sandbags without mechanisms to resolve them, having expectations raised on both ends in ways that may not be as simple in practice, and offering little confidence that a good stab at making the calls, carried out in good faith, will result in anything other than Kafka’s regulator appearing with a fine either way.

    Source link

  • DfE sets out the detail on the free speech act

    DfE sets out the detail on the free speech act

    In some ways, there’s little that’s new in the Department for Education’s Command Paper on the future of the Higher Education (Freedom of Speech) Act 2023.

    Over 30 pages or so, it basically puts some meat on the bones of the two announcements made by Secretary of State Bridget Phillipson – the one from last Summer where the act’s implementation was paused, and the one from January which discussed the plan in outline to partially repeal.

    This isn’t the first Command Paper from DfE on the issue – back in 2021, then Secretary of State Gavin Williamson’s effort was a fairly heavily ideological compendium of Telegraph stories and Policy Exchange talking points – picking up everything from cancel culture to students being encouraged “to report others for legal speech”.

    This run at things tends to deftly avoid all of that. It’s about as technical as you can get, with pretty much all of the critique justifying the approach based on workability and burden. Even that “sources close to the Secretary State” quote from last Summer on the Act representing some sort of “hate speech charter” is missing in action here – with the only discussion on harassment surrounding the ban on non-disclosure agreements.

    That’s either savvy politics from a government keen to douse down culture war flames, or a hostage to fortune when OfS’ particular approach to the balancing act between free speech and EDI at some stage comes back to bite – with ministers caught in the middle.

    And we’re off

    We already knew that the government had decided to commence the duties on providers regarding freedom of speech and academic freedom, as set out in Section 1 of the Act. The regulations were made on 28 April 2025, the duties come into force on 1 August 2025, and we got some actual (if controversial) guidance from OfS on 19 June.

    These include requirements for providers to take reasonably practicable steps to secure freedom of speech within the law for staff, members, students, and visiting speakers, as well as protecting academic freedom for academic staff. The Command Paper is keen to point out that the expanded definition of academic freedom will be retained, protecting academic staff from suffering adverse employment consequences solely based on their opinions or ideas.

    Ditto Section 2 of the Act, which covers constituent institutions of providers. DfE says that its decision ensures that constituent institutions such as colleges, schools, or halls within universities (for example, the individual colleges at Oxford and Cambridge) are subject to the same obligations as their parent HE providers.

    It says that the clarification was particularly important to put beyond doubt that these constituent institutions cannot avoid the freedom of speech duties that apply to the main institution – although to the extent to which you see these things as a see-saw, that does mean that Oxbridge Colleges will each be able to maintain their own free speech code of practice, while it’s the central university that will hold a central responsibility for the harassment and sexual misconduct duty as of 1 August.

    Given that Oxbridge colleges tend to be fiercely guarded about their autonomy and independence, that harassment duty and features like its “single source of information” were going to be interesting enough – but given that OfS’ free speech guidance repeatedly mentions harassment considerations when making decisions on free speech, you can see how some astonishing complexity and internal conflict could be coming further down the track.

    It’s also worth noting in passing that while DfE seems keen to put Oxbridge colleges’ direct duties beyond doubt, there’s nothing in here on transnational education – which as we noted in the commentary on OfS’ guidance, is asserted to be outside of the scope of the Act without anything in the way of meaningful justification.

    The other thing in this section is DfE’s pride at extending the non-disclosure agreement ban OfS was already putting in place for harassment and sexual misconduct cases to bullying. It quotes campaigns like “Can’t buy my silence”, but of course doesn’t explain to students why silence can be bought over other types of complaint.

    Yes yous

    The original version of the Bill proposed regulating students’ unions directly – although notably, the SUs of those constituent colleges were to have been exempted on the basis that the college exercises sufficient control.

    Pretty much by accident, that did mean that an FE union whose College was on the register and in receipt of OfS funding was going to be expected to bear all of the complex legal duties and issue a Code of Practice – even if it was unincorporated and run entirely by FE (rather than HE) volunteers.

    So entirely sensibly, there’s confirmation that the government has decided to repeal sections 3 and 7 of the act in their entirety, which would have imposed the direct freedom of speech duties and given OfS regulatory powers over them.

    The workaround is the one that’s been in place since 1994 – regulating SUs through their provider. The rationale for repeal centres on concerns that SUs can lack the financial resources, regulatory capacity, and legal expertise to handle complex duties, that monetary penalties or damage awards could severely impact their ability to provide services and support to students, and the government recognised that SUs are already regulated as charities by the Charity Commission, which oversees their compliance with legal duties including furthering educational purposes through enabling discussion and debate.

    So instead of direct regulation, the government has decided to adopt our proposal from 2021 – the government will expect providers to take reasonably practicable steps to ensure their students’ unions follow codes of practice, which is what already happens over a whole range of issues. Some will see that as an attack on autonomy, others a charter for avoidance – sensible people will see this as the approach that will work.

    Or at least it should work, were it not for the fact that OfS seems to be requiring universities (and therefore by proxy their SUs) to adopt an approach to the balance between free speech and harm that is not legally compliant. More on that in our commentary on OfS’ guidance, suffice to say that SUs at the sharp end of some of the tensions may end up resolving that what OfS might have told them to do is not what they actually should do on a given issue.

    Complainants will be able to complain about the reasonably practicable steps thing – DfE civil servants may have forgotten that the Education Act 1994 also sets up some statutory complaints requirements on SUs themselves, which involve provider review. The other odd bit is that DfE’s amendments to the Act will require providers to set out in their Code of Practice how their students’ union will ensure that affiliation is not denied to any student society on the grounds of its lawful policy or objectives, or the lawful ideas or opinions of its members.

    That goes slightly further than the compliance already expected of SUs as charities over protected beliefs, and extends (very slightly) an existing provision in the Education Act 1994 that the procedure for allocating resources to groups or clubs should be fair and should be set down in writing and freely accessible to all students. It’ll cause conflict at the edges – students do expect to be able to vote on things, and votes can be problematic – but overall this all makes sense.

    Tort a lesson

    You might remember the controversy over the statutory tort – the thing that would have allowed staff, students, and external speakers to bring civil claims against HE providers, constituent institutions, or students’ unions for breaches of their freedom of speech duties.

    The government’s rationale for repealing that bit centres on concerns about its potentially harmful effects on the higher education sector – a chilling effect on freedom of speech that might make institutions more risk-averse about inviting challenging or controversial speakers due to fear of litigation. And so given judicial review, employment tribunals, the OIA complaints scheme for students, and the forthcoming enhanced OfS complaints scheme are all alternatives, plus the financial burden of potential legal costs, it’s gone.

    That all pretty much matches Lords speeches opposed to the Tort at the end of 2022 – this we might expect this to re-emerge as a flashpoint when all of this finds its “appropriate legislative vehicle”.

    This section also says that the government is also concerned that the threat of legal proceedings might lead institutions to prioritise protecting hateful or degrading speech over the interests of those who feel harassed or intimidated – an interesting idea given that both hateful and degrading speech can still be within the law, or at least OfS’ interpretation of it.

    Complaints chaos

    As expected, the Office for Students is going to be stripped of the ability to hear complaints from… students over academic freedom and freedom of speech.

    To be fair, the sensible rationale there is that the Office of the Independent Adjudicator (OIA) is a well-established route that is recognised and understood by students and providers – and that approach will prevent students being baffled about who to approach, or worse, arbitrary categories that had the potential to take a wide-ranging complaint and insist on it being sliced up.

    That won’t remove the potential problem of students on one end of the see-saw and staff on the other each making complaints about the same issue – or OfS and OIA potentially making different judgements. There’s also the prospect that OfS and OIA will handle things at a different pace, and while OfS was proposing to allow a complaint to roll in without exhausting internal procedures, OIA usually needs a Completion of Procedures letter.

    It’s all very well asking the OIA to look at OfS’ guidance, but presumably there’s some risk that the OIA will look at the way OfS is defining free speech within the law and have representations made to it that disagree. Wales would feel pretty aggrieved if OfS’ particular interpretation was imposed on it via OIA’s dual country coverage, and presumably it would be wild for the OIA to say one thing about an incident in Wales and another in England.

    It all feels like the two bodies are being asked to get in a room and talk – on that, DfE just points at Section 63 of HERA (OfS may co-operate with others where appropriate) and says you two should talk. It might strengthen it if needs be.

    DfE also says that it will ask OfS to consider and then set out in requirements or guidance what fit for purpose internal complaints processes for academic freedom look like, although you could just as easily ask the OIA to build something into its Good Practice Framework.

    The other aspect here is that the legislation will switch from OfS having a power rather than a duty to consider complaints under its scheme. DfE says that will enable it to prioritise, for example, the most serious complaints or complaints on issues affecting the whole sector.

    The expectation is that “OfS and Dr Ahmed” will be transparent, independent and neutral in how they prioritise consideration of those complaints – notwithstanding the position-taking evident in the guidance already, that presumably points to some sort of criteria for folk to fight about.

    Lurking in the background of all that is academic freedom – in its consultation on the complaints scheme, OfS pointed at the Higher Education and Research Act and said “the Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement.”.

    The OIA of course can’t look at such matters – and with “duty” switched to “power”, we’re going to need OfS to take a view on whether it will do things for staff and speakers that the OIA won’t be able to do for students.

    Foreign funding

    The one policy area where an announcement was pending was section 9 of the legislation, related to OfS’ monitoring of overseas funding to providers with an eye to assessing the extent to which such funding presents risks to freedom of speech and academic freedom. This measure is not currently in force.

    When Bridget Phillipson updated Parliament on Labour’s plans in January, it was the one area where a decision was not announced:

    I will take more time to consider implementation of the overseas funding measures. I remain fully committed to tackling cases of interference by overseas Governments, and the wider measures in the Act will further strengthen our protections. However, I want to ensure that any new reporting requirements for providers add value without being overly burdensome. We continue to work at pace with the sector on the wider implementation of the Foreign Influence Registration Scheme. My officials are working across Government and with the sector to review our response, and I will confirm my final decision in due course.

    Now we get a decision of sorts – and that decision is to continue to keep this under review, and introduce “alternative mitigations to support HE providers to improve international due diligence.”

    For a long time under the last government, the response to any and all bugbears that commentators and politicians had with universities’ and students’ relationships with other countries – ranging from overreliance on international students from certain countries, to research collaborations in weapons technology, to transnational repression, to the activities of Confucius Institutes and Chinese student associations – was that this would all be sorted out through the twin approach of the free speech act and the Foreign Influence Registration Scheme (FIRS). Labour has instead taken the approach that the latter needs to be implemented first.

    FIRS will come into effect on 1 July – we reviewed its implications for the sector back in April – and the policy paper promises to assess what comes out of it. FIRS, we are told, will provide “greater visibility of foreign state influence in the UK,” and information disclosed will be shared with DfE and OfS where relevant, allowing for pattern recognition as well as the prevention of specific threats.

    The alternative – that is, additional – mitigations mentioned above include asking the Office for Students to “consider the value of an explicit regulatory expectation” around due diligence on international partnerships. There’s also work on possible codes of practice and best practice sharing.

    The caveat here is that as FIRS is implemented:

    …it may demonstrate that further reporting on financial or other international arrangements would be beneficial to improve the identification and mitigation of these risks. As a result, we will keep the overseas funding provisions in the act under review in the event that, during FIRS implementation, evidence indicates further transparency reporting is necessary.

    But it feels that the government has come down on the side of listening to the sector about avoiding burden and duplication and, as the paper says, “minimising diversion of resources away from teaching and research.”

    There’s an interesting table on pages 24 and 25 of the command paper, perhaps anticipating criticism over the wait-and-see approach. The table lists all the different measures (ATAS, export controls, harassment duties, financial monitoring, national security act powers) that are already in place to mitigate against “foreign interference”, even without implementing OfS’ new powers.

    (In this context it’s worth briefly noting that Monday’s industrial strategy announced that the government will consult on updating the definitions of the 17 areas of the economy subject to mandatory notification under the National Security and Investment Act, to ensure that they remain “targeted and proportionate”. This could – potentially – see a slight loosening of the areas of research collaboration where higher education institutions need to notify and get approval from the government.)

    Equality impacts

    Finally, there’s a very odd section at the end of the command paper that describes and comments on an Equality Impact Assessment that DfE has, for some mysterious reason, not actually published.

    One of the sections might give us a clue as to why:

    Expanding these duties may lead to more open expression of views which could have a negative impact on those who currently face elevated levels of lawful but offensive comments related to their protected characteristics. They could also potentially lead to increased unlawful harassment against groups with specific protected characteristics.

    It’s almost as if DfE doesn’t want to publish a document that makes the legislation Phillipson is progressing sound like a “Tory hate charter” after all.

    It all partly depends on how OfS plays its duty – again, see the article on the meaning of free speech within the law – but you’d also have to assume that the detail is pretty bleak, and/or offers up all of the remaining fine lines and rhetorical contradictions being dumped on universities to navigate. The tort might be gone, but all of that complexity very much remains.

    Source link

  • Blurred lines: Has OfS misunderstood freedom of speech?

    Blurred lines: Has OfS misunderstood freedom of speech?

    Academic year 2013-14 was an interesting one.

    I’d started work at UEA’s students’ union – and in the slipstream of national work on harassment and sexual misconduct and “lad culture”, I’d attracted considerable opprobrium from some working in the campus venue because I’d resolved that we wouldn’t be playing Pharrell Williams and Robin Thicke’s “Blurred Lines”.

    This apparent PC-gone-mad crackdown on our DJs’ “freedom of expression” (described as “whining” by Spiked!) was difficult to stomach in an SU that had historically often opposed NUS’ “No Platform” policies – but having seen with my own eyes what happened in the LCR when it came on, I thought I was justified regardless of whether there had been a referendum on the issue.

    I’ve often mused on whether these days, someone would be able to use the Higher Education (Freedom of Speech) Act to block that sort of ban – or at least get a complaint into the Office for Students (OfS) over it.

    Just before Easter that year I took a few days off to get away to Denmark – where I watched Austria win the Eurovision Song Contest in a former shipyard in Copenhagen. Little did I know that the fallout from that win would end up being central to a brewing controversy over freedom of speech regulation in England some 11 years later.

    The winner that year was Conchita Wurst (the drag persona of Thomas Neuwirth) with the song “Rise Like a Phoenix” – a result that was controversial in some Eastern European countries given her “bearded” gender-nonconforming appearance.

    A few days after the contest, two members of the Armenian Jury gave a press conference, explaining that they had given Conchita the fewest points because “of their internal revulsion” at her appearance. They specifically stated:

    …like the mental patient causes repulsion, so does this phenomena.

    Participants at the press conference called out the judges on their discriminatory and offensive remarks – but the following day, Armenian newspaper Iravunk piled on by publishing an article titled:

    They serve the interests of international homosexual lobbying: The blacklist of enemies of state and nation.

    The article included a list of 60 activists and supporters of LGBTI rights, encouraging readers, employers, and public bodies to discriminate against them.

    Neighbors say we’re trouble

    Having first attempted to resolve the issue informally – only to have the paper double down – a group of them tried the Armenian courts, which dismissed the activists’ claims, ruling that the articles did not aim to insult them but simply contained:

    ….an element of exaggeration and provocation, in the exercise of the journalist’s right to free speech.

    And so they filed their case with the European Court of Human Rights – which handed down its judgement in January of this year.

    Armenia’s courts had viewed the newspaper’s tirade as lawful – robust, if unpleasant, political commentary – and so protected by Article 10(1):

    A10(1): Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    But Strasbourg said that when deciding whether expression is “within the law”, you can’t just stop at a domestic statute book’s explicit offences.

    You also have to factor in the built-in brakes of Article 10(2) – which insist that speech rights are limited by respect for the rights and freedoms of others and by what is necessary in a democratic society:

    A10(2): The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    In other words, once you’ve worked out if there’s an explicit law that restricts some speech, 10(2) then causes you to think about whether speech tramples on someone’s Article 8 dignity, or discriminates under Article 14, or engages any other of the rights in the Convention.

    If otherwise legal speech stirs up hostility or encourages discrimination, depending on the context, it slides towards a zone where Article 10 protection shrinks – or even disappears under Article 17’s “abuse of rights” clause.

    The Court ruled in favour of the activists, finding that Armenia had violated their rights. It held that the newspaper articles went beyond legitimate political discourse and constituted hate speech that could incite violence and discrimination.

    Acknowledging the importance of press freedom, Strasbourg emphasised that the articles’ call for readers, employers, and public bodies to discriminate against named individuals crossed the line from protected speech into harm. And the Armenian courts’ failure to provide any protection against this targeting represented a breach of the state’s positive obligations under the Convention.

    The competing rights – in the Armenia case of speech on the one hand, and privacy and equality on the other – do still have to be seen through the lens of necessity and proportionality. But it’s the two stage process taken together that sets out what is “within the law”.

    Walking over glass

    This all matters because when the Higher Education (Freedom of Speech) Bill was being debated in the Lords, this question of the meaning of “freedom of speech within the law” came up. Lord Hope of Craighead wanted to know what it meant:

    I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means.

    He initially proposed an amendment defining freedom of speech directly by reference to Article 10(1), but Lord Moylan worried that omitting Article 10(2) would create confusion.

    The government eventually proposed a compromise, defining freedom of speech as referring to Article 10(1) “as it has effect for the purposes of the Human Rights Act 1998.”

    Lord Hope ultimately accepted that formulation, noting that the phrase “as it has effect” implicitly imports the whole balancing test from the Human Rights Act – including Article 10(2)’s limitations.

    But it’s not immediately clear that the Office for Students (OfS) noticed.

    Go about your business

    In its consultation on Regulatory advice 24: Guidance related to freedom of speech, restrictions on freedom of speech are treated as binary (lawful/unlawful) rather than explaining that Article 10 requires a nuanced balancing exercise.

    It listed specific legal restrictions (harassment, discrimination, anti-terrorism laws) but doesn’t frame these within the broader Article 10(2) framework that Parliament apparently intended to incorporate.

    The Armenia case shows why this matters – speech that doesn’t violate domestic criminal law can still lose Article 10 protection if it unnecessarily tramples on others’ rights.

    In their response to the consultation, Naomi Waltham-Smith, Julius Grower, and James Murray argued that advice could mislead providers and SUs because insufficient consideration was given – in either the guidance or the worked examples – to the balancing acts that would need to be undertaken in difficult cases.

    They also specifically criticised OfS for failing to explain how Article 10(2) operates, noting that:

    …while Article 10(2) is quoted in the guidance, its operation is neither explained nor applied in either the guidance or the examples.

    That omission, they warned, risked universities thinking they only needed to check whether speech violated explicit legal provisions, rather than conducting the fuller proportionality assessment that both the European Convention and Parliament’s incorporation of it into the Higher Education (Freedom of Speech) Act required.

    So they proposed a four step test:

    Step 1: Is the speech completely beyond the pale? (Article 17 ECHR)

    Does the speech abuse human rights to destroy human rights themselves – like promoting terrorism or calling for genocide? Article 17 of the ECHR says such extreme speech gets no protection at all. If yes, the university’s duty under the HEFoSA doesn’t apply. If no, move to step 2.

    Step 2: Does the speech break UK law?

    Is what they’re saying illegal under any UK statute or common law (like hate speech, harassment, inciting violence, or defamation)? If yes, the university’s duty doesn’t apply. If no, move to step 3.

    Step 3: Can the university restrict this speech? (Article 10(2) ECHR)

    Article 10(2) of the ECHR allows some limits on free speech for things like national security, public safety, or protecting others’ reputation. BUT – in academic contexts this is extremely hard to justify because academic freedom is so important. If the university can show a restriction is necessary under Article 10(2), their duty doesn’t apply or is satisfied. If not, move to step 4.

    In this step, there’s a proportionality test:

    1. Is the objective important enough? – The reason for restricting speech must be sufficiently weighty to justify limiting a fundamental right.
    2. Is the restriction rationally connected? – The measure must actually help achieve the objective, not just be vaguely related to it.
    3. Is this the least restrictive option? – Could you achieve the same goal with less impact on free speech? If yes, you must use the less intrusive approach.
    4. Does the benefit outweigh the harm? – Even if the first three tests are met, you must still balance the severity of restricting speech against how much the restriction actually helps achieve your objective. The restriction fails if the damage to free expression outweighs the benefit gained.

    Step 4: Has the university taken “reasonably practicable steps”?

    Has the university done what’s realistically possible to enable the speech (like providing security, booking suitable venues, managing protests)? If yes, they’ve discharged their duty. If no, they’ve breached it.

    The London Universities Council for Academic Freedom (LUCAF) disagreed with that approach. They argued that the European Convention on Human Rights sets the minimum level of free speech protection – but that UK law can (and does) give you more protection than the minimum.

    They argued that Article 10(2) lists when speech can be limited (like for public safety), but it doesn’t require limits. And given the legislation says universities must protect speech unless it’s actually illegal or violates someone’s human rights, in their view Article 10(2) doesn’t add any new reasons to restrict speech beyond what’s already in UK law.

    For them, the guidance extensively discussed protecting people from discrimination and harassment, didn’t force universities to allow “vicious, sustained and personal attacks”, and that universities could still have rules about behaviour – as long as they applied equally regardless of viewpoint.

    For them, all the draft did was ensure that universities can’t use vague concerns about “harm” to shut down legitimate debate and academic discussion.

    Act as if you’re free

    In the final version of the guidance, OfS adopts a three-stage process that then runs underneath its examples:

    Step 1 asks simply whether speech is “within the law” – defined as speech not prohibited by primary legislation, legal precedent, or secondary legislation. Crucially, university regulations and contracts don’t count as “law” here. If not, don’t allow it. If it is, move to Step 2.

    Step 2 considers whether there are “reasonably practicable steps” to enable the speech. Universities should consider factors like legal requirements (including any formal duties), maintaining essential functions, and physical safety – but explicitly cannot consider the viewpoint expressed, whether it’s controversial, or reputational impact. If steps can be taken, take them. If not, move to Step 3.

    Step 3 – only reached if no reasonably practicable steps exist – then asks whether any restrictions are “prescribed by law” and proportionate under the European Convention. This involves checking if there’s a specific legal rule authorising the restriction, and runs through that same four-part proportionality test weighing the importance of the objective against the severity of limiting the right.

    In other words, OfS has gone with AFAF’s interpretation – which is a key architectural difference.

    OfS’ process treats Article 10(2) considerations as a final backstop – something you only reach after exhausting practical options. But the Armenia case suggests these considerations should infuse the entire analysis from the start.

    When Strasbourg said speech must be “within the law,” it meant not just checking against explicit prohibitions, but understanding that Article 10 protection can shrink or disappear when speech unnecessarily tramples on others’ dignity or encourages discrimination.

    That matters because universities following the OfS guidance might think they’re obliged to host speakers who, while not technically breaking actual laws, are using their platform to create hit lists of activists or stir up discrimination – “permissive environments”.

    The guidance’s linear process could lead institutions to conclude they must exhaust all “reasonably practicable steps” before even considering whether the speech itself has already lost its Article 10 protection by targeting individuals for harassment.

    That’s not just a theoretical concern – it’s precisely what happened in Armenia, where domestic courts protected speech that Strasbourg found had crossed the line from legitimate discourse into unprotected speech.

    And for Waltham-Smith, Grower, and Murray, this leaves universities in an impossible position.

    No one could have witnessed

    They argue that the final OfS guidance seems to be confused about Article 17 (the “abuse of rights” clause). While it mentions Holocaust denial as an example, it then suggests universities still have duties to take “reasonably practicable steps” even for Article 17 speech.

    For Waltham-Smith, Grower, and Murray, this makes no sense – Parliament explicitly defined “freedom of speech” by reference to the Convention standard, which includes Article 17. You can’t cherry-pick which bits of the Convention apply.

    They note that OfS seems to have ignored the idea raised during the Lords debate that incorporating Article 10(2) was “axiomatically required” by the statutory definition. They suggest OfS has misunderstood that Article 10(2) isn’t just about defining what’s “within the law” – it’s baked into the very definition of “freedom of speech” that Parliament adopted.

    Their key criticism is that the guidance requires universities to exhaust all “reasonably practicable steps” before even considering proportionality and competing rights like Article 8 (privacy/dignity) or property rights. But for them, that gets the analysis backwards – you need to consider whether speech tramples on others’ Article 8 rights from the start, not as an afterthought.

    Crucially, in Minasyan v Armenia, Strasbourg struck down Armenia’s approach precisely because it over-privileged Article 10 without properly balancing Article 8 rights. OfS’ guidance arguably puts universities in exactly the same position – following an analytical framework that’s already been ruled non-Convention compliant.

    Put another way, universities following OfS guidance could find themselves breaching the Human Rights Act 1998 by using an approach that Strasbourg has explicitly rejected – OfS’ linear, checkbox approach misses the fundamental point that human rights require holistic balancing from the outset, not sequential consideration.

    And that takes us back where the see-saw all started – holocaust denial.

    Cause you wouldn’t know me today

    Back in 2021 on the day that the then universities minister Michelle Donelan appeared on PM, the exchange with presenter Evan Davies went as follows:

    Michelle: What this Bill is designed to do is ensure that we protect and we promote free speech that is lawful so any free speech that is lawful…

    Evan: It is lawful, Holocaust denial is in this country lawful isn’t it? So Holocaust denial is okay, you would defend a holocaust denier being invited to campus because that is part of the free speech argument?

    Michelle: Obviously it would depend on exactly what they were saying, whether they were straying into racism, whether they were straying into hate crimes, but a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful…

    Less than 24 hours later, both her boss Gavin Williamson and PM Boris Johnson had flat out contradicted her – Donelan herself issued a panicky 10.15pm tweet thread making clear her view that antisemitism is abhorrent “and will not be tolerated at our universities”, and met with Charlotte Nicholls MP to:

    …confirm that she had misspoken and it was not the intention of the government that the new bill be used to defend Holocaust denial.

    Presumably to assuage critics, the final guidance simply declares that OfS “will not protect Holocaust denial” – full stop. But it doesn’t really say why – all the consultation response does is try to justify this by saying it’s because Holocaust denial would:

    …likely amount to incitement to racial hatred and harassment.

    That suggests a fundamental confusion about why Holocaust denial isn’t protected. In European human rights jurisprudence, Holocaust denial is the paradigmatic example of Article 17 speech – speech that abuses rights to destroy rights and therefore gets no protection whatsoever. You don’t need to prove it amounts to incitement or harassment – it’s simply outside the scope of protected speech from the start.

    By trying to shoehorn Holocaust denial into UK criminal law categories (incitement) or civil wrongs (harassment), OfS decides that it’s not properly engaging with the Convention framework that Parliament explicitly incorporated. It’s treating it as just another form of potentially illegal speech – rather than recognising it as categorically unprotected under Article 17.

    And that opens the door to all sorts of chaos.

    • We might imagine a speaker or campus group publishing lists of “woke professors undermining British values” or “Marxist students infiltrating the university” with names, photos, and course details. While not explicitly illegal, that would mirror the Armenian newspaper’s tactics and could encourage targeting and harassment.
    • A speaker systematically and deliberately misgenders trans students or staff, encouraging audiences to do the same. While potentially not reaching the threshold for harassment (which requires a “course of conduct”), it could violate dignity rights under Article 8.
    • A rugby club hosting a speaker to give a talk on “team bonding traditions” that promotes hazing rituals targeting women – like “sharking”, “seal clubbing”, or scoring systems for sexual conquests. While not directly instructing assault, it creates a culture where such behaviour is normalised and encouraged.
    • Student societies booking speakers who promote “player culture” – teaching tactics like getting women drunk to “lower resistance,” how to “neg” women to undermine confidence, or running “bootcamps” on manipulating “7s into thinking they’re 4s.” Carefully avoiding anything that could be construed as inciting assault while creating predatory environments.
    • SU comedy events featuring performers whose acts revolve around rape jokes, domestic violence “humor,” and audience participation segments where female students are singled out for sexual humiliation. Defended as “edgy comedy” but designed to normalize violence against women.
    • Student societies hosting speakers who argue that rape statistics are “feminist propaganda,” that most accusations are false, and encouraging male students to “protect themselves” by recording all sexual encounters or avoiding being alone with women. Creating an atmosphere where victims are pre-emptively discredited.
    • Academic presentations arguing certain racial groups are genetically less intelligent, complete with “scientific” graphs and data. While framed as academic discourse and not explicitly inciting violence, such content could encourage discrimination and lose Article 10 protection.
    • A speaker singling out specific LGBTQ+ students by name as “abominations” who will “burn in hell,” while stopping just short of calling for action against them. The speech might not meet the threshold for incitement but could constitute degrading treatment.
    • Presentations warning that specific ethnic groups are “replacing” the native population, using university demographic data to identify departments or residences with high numbers of international students. Technically discussing statistics but designed to stir hostility.
    • A staff member argues that disabled students are a “drain on university resources” and promoting selective admission policies based on genetic screening. Not explicitly calling for discrimination but creating an environment where it’s encouraged.
    • A society running workshops teaching young men that women are “inherently inferior,” should be “controlled,” and are “property” once in relationships might use pseudo-evolutionary psychology to argue women “want to be dominated” and teach tactics for emotional manipulation. While carefully avoiding explicit incitement to violence, the content systematically degrades women’s dignity.
    • A student club encouraging male students to publicly rate and shame female students based on their sexual history, creating websites or social media campaigns to track and expose women’s private lives. Not quite reaching the legal threshold for harassment but creating a fairly hostile environment.
    • Alumni speakers at formal dinners celebrating historical drinking society chants about “consensual non-consent” or sharing “conquest walls” where women’s photos were displayed as trophies. Framed as “preserving tradition” but perpetuating degrading treatment.
    • Presentations arguing women in higher education are “destroying society,” that female students should be “preparing for motherhood not careers,” and encouraging male students to “put women in their place.” Framed as cultural commentary, but intimidating women from participating in university life.

    Under the OfS framework, universities might think they need to find “reasonably practicable steps” to allow all of that – perhaps with security, protests managed at a distance, etc. But following the Armenia logic, all of the above could already lack Article 10 protection because it:

    • Systematically undermines other HRA rights
    • Encourages discrimination based on a protected characteristic
    • Creates an environment hostile to equal participation in education
    • Goes beyond legitimate discourse into targeted degradation

    The real danger is that content is specifically designed to stay just within legal boundaries while maximising harm – exactly the kind of speech that requires the full Article 10 balancing act from the start, not as an afterthought.

    Which is why, I suspect, that while OfS consistently says that it won’t protect holocaust denial, it can never quite bring itself to say that it would be OK to ban holocaust deniers.  

    Universities now face an impossible choice – follow OfS guidance and risk breaching the Human Rights Act, or properly apply Article 10 and risk regulatory action.

    What started as an attempt to protect academic freedom has morphed into a framework that could protect the worst forms of “permissive environments” to promote or condone stuff they’ve been making progress on tackling for years.

    The solution isn’t complex – OfS simply needs to align its guidance with the Convention framework that Parliament explicitly incorporated. Until then, every controversial speaker booking, every protest, every difficult decision will be made in the shadow of guidance that looks like it misunderstands what “freedom of speech within the law” actually means.

    And it’s students – particularly those with protected characteristics who that activity so often targets – who will pay the price.

    Source link

  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

    Source link

  • The balancing act goes on

    The balancing act goes on

    Balancing free speech and protection from harassment is a complex, evolving challenge with no one-size-fits-all solution.

    Decisions must be made based on the specific context and facts of each case.

    However, our experience shows these risks are dynamic – over time, new challenges emerge, stretching our policies, processes, and understanding. The question for HEIs then, is how to navigate such a landscape.

    Recently, OfS’ Regulatory Case Report for the University of Sussex has sparked extensive commentary. Jim Dickinson, in multiple articles on Wonkhe, has explored its implications for effective regulation, rightly emphasising the crucial role of collaboration and trust.

    Efficiency is the watchword of the day and the approach in the case report risks fostering a more expensive American-style adversarial legalism. But the stakes are higher than just the streamlined effectiveness of our regulatory system.

    The rights, experience and outcomes in education and career for HE students and staff often depend on our approach and decisions in these critical cases.

    Challenges and priorities

    The UK higher education sector has faced a significant challenge. Free speech has at times been overlooked in our policies and work, especially in areas of equity, diversity, and inclusion.

    The policy template in the Sussex case report was drafted by one of Advance HE’s predecessor organisations, the Equality Challenge Unit. However, the sector now shows a shared intent to prioritise free speech. Universities UK states:

    “It’s absolutely essential that universities uphold freedom of speech and academic freedom, and they are legally bound to do so. Universities must also create an environment where all people can work and learn together.

    There is increasing clarity on the “presumption in favour of free speech” in UK law and in higher education practice. This is evident in relation to free speech and protected beliefs, such as in the recent Court of Appeal judgment in the Higgs case, as well as in areas like Prevent and institutions’ responses to protests on Israel/Gaza.

    We would benefit from more openly recognising this shared intent and commitment to free speech and academic freedom. However, the answers to many of the difficult cases and questions that arise in these areas are not settled.

    New incidents will create different circumstances and illuminate different boundaries of law and regulation, and there will be new court cases and judgments to learn from (such as the Supreme Court ruling on the definition of a woman in the Equality Act 2010).

    We will continue to grapple with the challenging interplay between free speech, inclusion, and harassment. This tension is now explicit in the OfS regulatory framework, particularly between freedom of speech and Condition E6 on Harassment and Sexual Misconduct.

    The most important decisions about free speech and inclusion happen in our classrooms and offices. Academics navigate contentious topics and sensitive discussion, while managers respond to concerns about speech and harm, or debates that turn into allegations of harassment.

    These decisions are often uncertain, taken in individual contexts without clear legal precedent or direct policy instruction. Our staff and students therefore depend on our collective ability to make reasonable and proportionate decisions in heated, highly contextualised, and risky environments.

    These challenges are dynamic and will continue to evolve. Many HE policies and solutions from five or ten years ago are not fit for purpose now. We would be naïve to think our current approaches will not again need to evolve to meet future circumstances and challenges.

    How then can we ensure the rights to free speech and protection from harassment are upheld for staff and students under these circumstances?

    The way ahead will require proactive leadership, horizon scanning, and a willingness to collaborate and innovate in sensitive areas.

    Collaboration is key

    OfS itself has emphasised the importance of collaboration. Arif Ahmed, the Director for Freedom of Speech and Academic Freedom at OfS, noted:

    “I believe that there is much to be gained from collaboration with [the sector] on these important issues. I am therefore keen to engage with stakeholders now on the most effective ways to approach the promotion of freedom of speech.

    As a sector, we need to work collaboratively to find opportunities for innovation and allow UK higher education to experiment at the edges of promoting and protecting free speech while openly addressing clear instances of unlawful harassment. UUK, GuildHE and Advance HE alongside many individual institutions have been proactive recently in creating spaces for discussion and practice in balancing free speech and inclusion.

    We are not alone in this challenge. Other nations and HE sectors have similar values and intent but slightly different legal frameworks. The recent Hodgkinson Review from the University of Sydney demonstrates the potential that a more global conversation might offer to horizon scanning and innovation in the UK.

    Beyond collaboration, innovation and horizon scanning, securing free speech and protection from harassment will test institutional resilience to difficult and complex cases. This will require institutional competence, but more importantly, any long-term success demands individual capacity and judgment from academics and staff.

    One-off training programs will be quickly outdated. Staff will be more effective engaging with policies in context, with clear opportunities to escalate challenges and receive responsive feedback and support. Leaders and front-line staff will need to be supported to engage with and share learning from the most complex cases.

    The approach to regulation demonstrated by the Case Report on Sussex encourages institutions to prioritize free speech and embed it into policy and practice. But this is already well understood and underway. What the Case Report won’t do is encourage institutions to step into difficult and complex cases more openly and engage in challenges that don’t have clear answers.

    The hazard here is the possibility of an environment where HEIs and staff may feel compelled to remove risk from engagement with speech. Staff and students might avoid contentious topics in research and teaching and withdraw from activities where there are concerns about harassment and discrimination. This would limit the innovative and provocative speech we should protect and undermine our ability to add value at the boundaries of societal debate.

    New regulation, such as the complaints scheme, could be a powerful mechanism for horizon scanning and supporting learning and consistent practice across institutions. To build a more robust approach to free speech in UK higher education, we need more collaboration and trust, and to build on our shared commitment to free speech and protection from harassment.

    Source link

  • Explaining Sussex v the Office for Students

    Explaining Sussex v the Office for Students

    The University of Sussex has published a pre-action protocol letter to the Office for Students (OfS).

    The letter notifies the regulator of the university’s intention to seek judicial review and appeal the decision – which imposed a £600k fine over breaches related to academic freedom and freedom of speech.

    Thus far we’ve had a war of words – now we see the legal basis for the argument. Sussex argues that OfS acted ultra vires (ie beyond its powers), misinterpreted legal principles, misapplied statutory definitions, and demonstrated irrationality in its findings, particularly over the Trans and Non-Binary Equality Policy Statement (TNBEPS).

    It also asserts that OfS overstepped its authority, failed to engage in procedural fairness, and ignored safeguards already in place – putting meat on the bones of its eye-catching “free-speech absolutism” claim.

    Some of it concerns a regulatory regime that’s set to be replaced – but some of it concerns an allegation of “absolutism” about how the regulator is interpreting the law. The second of those could go on to matter quite a bit once the Higher Education (Freedom of Speech) Act 2023 actually gets implemented.

    Chilling effects and balancing acts

    Sussex’s disciplinary statement classified “transphobic abuse, harassment or bullying” – including name-calling and derogatory jokes – as serious disciplinary offences, and it argues that OfS made a legal error in finding that the statement breached regulatory requirements around freedom of speech.

    It arguies that the language targets conduct already covered by existing laws – like section 5 of the Public Order Act 1986, which prohibits abusive speech likely to cause harassment or distress.

    In 2023, the university introduced clarifications – a “harm threshold” requiring speech to be reasonably expected to cause fear or distress, and an explicit statement safeguarding lawful academic freedom and speech, stating that the policy should not justify disciplinary action for expressing controversial or unpopular views.

    It claims OfS ignored those contextual safeguards and wrongly interpreted the policy as restricting lawful speech, even though its objective meaning, when read in full and in context, demonstrates otherwise.

    Broadly, this is about the “chilling effect” – Sussex is saying that universities can lawfully discipline harmful or abusive speech, as long as there’s an alignment with existing legal prohibitions, and as long as there are clear safeguards for lawful expression – limiting OfS’s power to challenge policies based on hypothetical misreadings. Doing so gives universities freedom to uphold respectful environments without breaching free speech duties.

    Expression that you can restrict

    Next, Sussex argues that OfS misunderstood what “freedom of speech within the law” actually means – taking the position that universities can’t prohibit any speech unless it’s already explicitly banned by civil or criminal law.

    Sussex’s argument is that universities, like other institutions, are allowed to set standards of conduct and discipline behaviour – like plagiarism, abuse, or poor academic quality – even if those behaviours aren’t technically illegal:

    The University would have to tolerate academics designing curriculums which lack academic rigour, for example a curriculum which seeks to reinforce stereotypes (as distinct from a curriculum that discusses stereotypes).

    The University would have to tolerate an academic starting every lecture by swearing at and demeaning students, so long as such action did not relate to protected characteristics.

    The University would have to tolerate an academic conducting every lecture through the medium of song or mime (noting that freedom of speech protects the manner of speech as well as the content).

    The argument is that lawful speech can still be restricted if the restriction is lawful and proportionate, as allowed under Article 10 of the European Convention on Human Rights, and that the mere possibility of disciplinary action doesn’t amount to an unlawful restriction on speech, citing European case law to back this up.

    This one’s interesting because it’s a key part of the “absolutism” argument – in its draft guidance on the new legislation last year, for example, OfS said:

    It is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.

    Sussex is basically saying that the case law suggests that it’s not nearly as difficult or impossible as OfS claims – and that universities retain the lawful authority to set and enforce standards of behaviour, academic integrity, and professionalism – even where those rules affect speech that isn’t illegal. It’s also saying that having disciplinary procedures in place isn’t, by itself, a breach of free speech obligations, so long as they aren’t used to punish lawful expression improperly.

    Stereotyping standoffs

    One of the things we’ve reflected on before is the apparent refusal of the regulator to accept that the case law puts a higher value on free speech in academic contexts than in others – and of course a university encompasses all sorts of contexts.

    Put another way, what a student writes in an essay or what an academic teaches (with all the usual qualifications about proper rigour) that might, say, stereotype a trans person is a world away from stereotyping banter on a society social.

    In the letter, Sussex challenges the logic and legality of OfS’s conclusion about the 2023 “Stereotyping Statement” in the TNBEPS. OfS accepted the statement didn’t infringe academic freedom, noting the policy included a safeguard against constraining academic freedom or imposing disproportionate limits on free speech. Yet it still found the same policy breached freedom of speech duties, because it could chill other lawful speech, particularly by students or non-academic staff.

    Sussex argues this is irrational because the Stereotyping Statement only relates to how the curriculum is designed – something that exclusively involves academics. If OfS was satisfied that the policy didn’t infringe the academic freedom of those academics in setting the curriculum, it argues there is no rational basis to then conclude that their freedom of speech was infringed by the same policy.

    This standoff matters. OfS is saying that even if a policy respects academic freedom, it can still breach free speech duties if it chills broader expression – while Sussex argues that in curriculum design, those duties converge, and protecting academic freedom inherently protects speech.

    Is a policy statement a governing document?

    Sussex argues that the Trans and Non-Binary Equality Policy Statement (TNBEPS) is not a “governing document” as defined by section 14(1) of the Higher Education and Research Act 2017 (HERA), which it says only refers to foundational legal documents like a university’s Charter and Statutes.

    In comments to the Guardian at the end of last month, Sussex vice chancellor Sasha Roseneil argued as follows:

    This is a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university are its charter and statutes and regulations. So that’s the core of the problem

    In the pre-action letter, Sussex claims OfS has wrongly expanded the definition through its regulatory framework, which includes broader policy documents, without the legal authority to do so – insisting that only Parliament can define those terms – and that interpreting TNBEPS as a governing document is beyond the OfS’s powers (ultra vires).

    You might argue that it’s sensible for both the law and the regulator to only look at proper, formal governing documents when assessing breaches of things, you might not – but if Sussex is right on that, it does underline a key difference between the law operating in 2021 and what would be the position if the Higher Education (Freedom of Speech) Act 2023 was fully in force.

    It goes on to argue that the regulator “misunderstood and misapplied” its regulatory role, because OfS was supposed to determine whether the university’s governing documents were consistent with principles of academic freedom and freedom of speech – not to speculate on how someone might misread a policy.

    It criticizes OfS for relying on “hypothetical misinterpretations” rather than objectively interpreting the actual text, ignoring contextual safeguards like the university’s disciplinary rules and Free Speech Code – which the university says led to a flawed and unlawful decision.

    If Sussex is right, it’s saying that OfS may have failed a basic legal duty – to interpret documents in context and according to their actual effect, not based on imagined misunderstandings.

    Delegation and proportionality

    You’ll recall that the other big fine for Sussex was about delegation. Sussex argues that OfS acted beyond its legal authority by making findings about whether the university properly followed its internal rules on who has the power to approve policies (its delegation arrangements).

    Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King.

    It cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Sussex says HERA 2017 doesn’t meet the test, because it neither expressly nor necessarily implies that OfS can judge whether a university has followed its internal delegation rules.

    OfS argues that cases like Thomas v University of Bradford [1987] AC 795 make clear that HERA 2017 grants it the power to impose conditions as long as those conditions fall within its statutory mandate.

    This one’s interesting because it has echoes of arguments about the powers OfS has over consumer protection. In that area, C1 allows it to assess whether a provider has paid “due regard” to guidance, but OfS doesn’t have actual powers to judge whether a provider is in breach – which is partly why it’s busy proposing to remix consumer law as a “fairness condition” of its own, and partly why interim Chair David Behan has been arguing to DfE that it needs to be given proper powers to become an enforcement body.

    Poking around in the annex

    As such, Sussex also argues that OfS exceeded its legal authority by including Annex H in its Final Decision.

    That contains OfS’ views on whether the university may have breached other legal obligations – like Article 10 of the European Convention on Human Rights (ECHR) and the Equality Act 2010. Sussex asserts that HERA 2017 doesn’t authorise OfS to investigate or make findings about compliance with these separate legal duties, which fall outside its jurisdiction.

    OfS tries to justify its actions by saying that potential non-compliance with these laws might indicate whether Sussex breached Condition E1 (the requirement for governing documents to support freedom of speech and academic freedom).

    But Sussex argues this logic is flawed – it says E1 is about the content of governing documents and whether they align with public interest governance principles – not about whether the university might have violated unrelated legal duties that OfS doesn’t oversee.

    The university also points out what it says are legal errors in OfS’ analysis. OfS claimed the university might have breached Article 10 ECHR simply because it didn’t conduct a formal “proportionality assessment” – but case law says that’s not a requirement to prove a breach.

    The case referenced is a fascinating one – in Belfast City Council v Miss Behavin’ Ltd [2007] the council had denied a licence to an adult entertainment business, who argued their freedom of expression was infringed because the council hadn’t assessed whether the denial was proportionate.

    The House of Lords rejected the argument, deciding that what matters is whether the interference was in fact justified – not whether the council had formally weighed it up using proportionality language.

    And Sussex argues that OfS wrongly suggested the university’s curriculum content could amount to indirect discrimination under the Equality Act, even though curriculum content is explicitly excluded from that law under section 94(2).

    Process issues

    Some of the process issues are eye-opening. We learn, for example, that OfS suggested various potential penalties and breaches throughout the 1246 days of the investigation, “most of which were later dropped”.

    We already knew that OfS “never met with university representatives”, declined all requests for meetings or discussions about its findings or decisions, and would not confirm whether changes the university made to its policy addressed the concerns raised.

    Here Sussex says that when the provisional decision was reached and sent in March 2024, it was “259 pages long, repetitive and poorly written”. A year or so later, out of the blue, it says it got a call from OfS requesting a meeting within 3.5 hours – a courtesy call that the final decision was coming that day.

    It says that the majority of the findings and proposed penalties in the provisional decision had been abandoned, but the proposed penalties had actually increased – with no explanation.

    Sussex claims OfS acted unfairly during its investigation by meeting with Kathleen Stock multiple times while refusing nine requests to meet with university representatives – and argue OfS relied on a second statement from Stock, obtained after the university’s submissions, without disclosing it or allowing any response, using it to reject the university’s position on harm caused under condition E1.

    What happens next will hinge on whether OfS engages with the university’s legal challenge or digs in for a court fight – there’s a question over whether there’s any pre-action protocol for this kind of tribunal, and Sussex reserves the right to rely on other grounds.

    But more broadly, the case lays bare fundamental disagreements about how speech should be regulated in higher education, who gets to interpret the law, and where the boundaries lie between institutional autonomy and regulatory oversight.

    Whether you think Sussex is bravely standing up for a more balanced view of the campus culture see-saw, or is simply resisting accountability, the outcome may well reshape how free speech duties are understood and enforced across the sector.

    Source link

  • Effective regulation requires a degree of trust

    Effective regulation requires a degree of trust

    At one point in my career, I was the CEO of a students’ union who’d been charged with attempting to tackle a culture of initiation ceremonies in sports clubs.

    One day a legal letter appeared on my desk – the jist of which was “you can’t punish these people if they didn’t know the rules”.

    We trawled back through the training and policy statements – and found moments where we’d made clear that not only did we not permit initiation ceremonies, we’d defined them as follows:

    An initiation ceremony is any event at which members of a group are expected to perform an activity as a means of gaining credibility, status or entry into that group. This peer pressure is normally (though not explicitly) exerted on first-year students or new members and may involve the consumption of alcohol, eating various foodstuffs, nudity and other behaviour that may be deemed humiliating or degrading.

    The arguments being advanced were fourfold. The first was that where we had drawn the line between freedom to have fun and harmful behaviour, both in theory and in practice, was wrong.

    The second was that we’d not really enforced anything like this before, and appeared to be wanting to make an example out of a group of students over which a complaint had been raised.

    They said that we’d failed to both engender understanding of where the line was that we were setting for those running sports clubs, and failed to make clear expectations over enforcing that line.

    And given there been no intent to cause harm, it was put to us that the focus on investigations and publishments, rather than support to clubs to organise safe(er) social activity, was both disproportionate and counter-productive.

    And so to the South coast

    I’ve been thinking quite a bit about that affair in the context of the Office for Students (OfS) decision to fine the University of Sussex some £585k over both policy and governance failings identified during its three-year investigation into free speech at Sussex.

    One of the things that you can debate endlessly – and there’s been plenty of it on the site – is where you draw the line between freedom to speak and freedom from harm.

    That’s partly because even if you have an objective of securing an environment characterised by academic freedom and freedom of speech, if you don’t take steps to cause students to feel safe, there can be a silencing effect – which at least in theory there’s quite a bit of evidence on (including inside the Office for Students).

    You can also argue that the “make an example of them” thing is unfair – but ever since a copper stopped me on the M4 doing 85mph one afternoon, I’ve been reminded of the old “you can’t prove your innocence by proving others’ guilt” line.

    Four days after OfS says it “identified reports” about an “incident” at the University of Sussex, then Director of Compliance and Student Protection Susan Lapworth took to the stage at Independent HE’s conference to signal a pivot from registration to enforcement.

    She noted that the statutory framework gave OfS powers to investigate cases where it was concerned about compliance, and to enforce compliance with conditions where it found a breach.

    She signalled that that could include requiring a provider to do something, or not do something, to fix a breach; the imposition of a monetary penalty; the suspension of registration; and the deregistration of a provider if that proved necessary.

    “That all sounds quite fierce”, she said. “But we need to understand which of these enforcement tools work best in which circumstances.” And, perhaps more importantly “what we want to achieve in using them – what’s the purpose of being fierce?”

    The answer was that OfS wanted to create incentives for all providers to comply with their conditions of registration:

    For example, regulators assume that imposing a monetary penalty on one provider will result in all the others taking steps to comply without the regulator needing to get involved.

    That was an “efficient way” to secure compliance across a whole sector, particularly for a regulator like OfS that “deliberately doesn’t re-check compliance for every provider periodically”.

    Even if you agree with the principle, you can argue that it’s pretty much failed at that over the intervening years – which is arguably why the £585k fine has come as so much of a shock.

    But it’s the other two aspects of that initiation thing – the understanding one and the character of interventions one – that I’ve also been thinking about this week in the context of the Sussex fine.

    Multiple roles

    On The Wonkhe Show, Public First’s Jonathon Simons worries about OfS’ multiple roles:

    If the Office for Students is acting in essentially a quasi-judicial capacity, they can’t, under that role, help one of the parties in a case try to resolve things. You can’t employ a judge to try and help you. But if they are also trying to regulate in the student interest, then they absolutely can and should be working with universities to try and help them navigate this – rather than saying, no, we think we know what the answer is, but you just have to keep on revising your policy, and at some point we may or may not tell you got it right.

    It’s a fair point. Too much intervention, and OfS appears compromised when enforcing penalties. Too little, and universities struggle to meet shifting expectations – ultimately to the detriment of students.

    As such, you might argue that OfS ought to draw firmer lines between its advisory and enforcement functions – ensuring institutions receive the necessary support to comply while safeguarding the integrity of its regulatory oversight. At the very least, maybe it should choose who fronts out which bits – rather than its topic style “here’s our Director for X that will both advise and crack down. ”

    But it’s not as if OfS doesn’t routinely combine advice and crack down – its access and participation function does just that. There’s a whole research spin-off dedicated to what works, extensive advice on risks to access and participation and what ought to be in its APPs, and most seem to agree that the character of that team is appropriately balanced in its plan approval and monitoring processes – even if I sometimes worry that poor performance in those plans is routinely going unpunished.

    And that’s not exactly rare. The Regulator’s Code seeks to promote “proportionate, consistent and targeted regulatory activity” through the development of “transparent and effective dialogue and understanding” between regulators and those they regulate. Sussex says that throughout the long investigation, OfS refused to meet in person – confirmed by Arif Ahmed in the press briefing.

    The Code also says that regulators should carry out their activities in a way that “supports those they regulate to comply” – and there’s good reasons for that. The original Code actually came from something called the Hampton Report – in 2004’s Budget, Gordon Brown tasked businessman Philip Hampton with reviewing regulatory inspection and enforcement, and it makes the point about example-setting:

    The penalty regime should aim to have an effective deterrent effect on those contemplating illegal activity. Lower penalties result in weak deterrents, and can even leave businesses with a commercial benefit from illegal activity. Lower penalties also require regulators to carry out more inspection, because there are greater incentives for companies to break the law if they think they can escape the regulator’s attention. Higher penalties can, to some extent, improve compliance and reduce the number of inspections required.”

    But the review also noted that regulators were often slow, could be ineffective in targeting persistent offenders, and that the structure of some regulators, particularly local authorities, made effective action difficult. And some of that was about a failure to use risk-based regulation:

    The 1992 book Responsive Regulation, by Ian Ayres and John Braithwaite, was influential in defining an ‘enforcement pyramid’, up which regulators would progress depending on the seriousness of the regulatory risk, and the non-compliance of the regulated business. Ayres and Braithwaite believed that regulatory compliance was best secured by persuasion in the first instance, with inspection, enforcement notices and penalties being used for more risky businesses further up the pyramid.

    The pyramid game

    Responsive Regulation is a cracking book if you’re into that sort of thing. Its pyramid illustrates how regulators can escalate their responses from persuasion to punitive measures based on the behaviour of the regulated entities:

    In one version of the compliance pyramid, four broad categories of client (called archetypes) are defined by their underlying motivational postures:

    1. The disengaged clients who have decided not to comply,
    2. The resistant clients who don’t want to comply,
    3. The captured clients who try to comply, but don’t always succeed, and
    4. The accommodating clients who are willing to do the right thing.

    Sussex has been saying all week that it’s been either 3 or 4, but does seem to have been treated like it’s 1 or 2.

    As such, Responsive Regulation argues that regulators should aim to balance the encouragement of voluntary compliance with the necessity of enforcement – and of course that balance is one of the central themes emerging in the Sussex case, with VC Sacha Roseneil taking to PoliticsHome to argue that:

    …Our experience reflects closely the [Lords’ Industry and Regulators] committee’s observations that it “gives the impression that it is seeking to punish rather than support providers towards compliance, while taking little note of their views.” The OfS has indeed shown itself to be “arbitrary, overly controlling and unnecessarily combative”, to be failing to deliver value for money and is not focusing on the urgent problem of the financial sustainability of the sector.

    At roughly the same time as the Hampton Report, Richard Macrory – one of the leading environmental lawyers of his generation – was tasked by the Cabinet Office to lead a review on regulatory sanctions covering 60 national regulators, as well as local authorities.

    His key principle was that sanctions should aim to change offender behaviour by ensuring future compliance and potentially altering organisational culture. He also argued they should be responsive and appropriate to the offender and issue, ensure proportionality to the offence and harm caused, and act as a deterrent to discourage future non-compliance.

    To get there, he called for regulators to have a published policy for transparency and consistency, to justify their actions annually, and that the calculation of administrative penalties should be clear.

    These are also emerging as key issues in the Sussex case – Roseneil argues that the fine is “wholly disproportionate” and that OfS abandoned, without any explanation, most of its provisional findings originally communicated in 2014.

    The Macory and Hampton reviews went on to influence the UK Regulatory Enforcement and Sanctions Act 2008, codifying the Ayres and Braithwaite Compliance Pyramid into law via the Regulator’s Code. The current version also includes a duty to ensure clear information, guidance and advice is available to help those they regulate meet their responsibilities to comply – and that’s been on my mind too.

    Knowing the rules and expectations

    The Code says that regulators should provide clear, accessible, and concise guidance using appropriate media and plain language for their audience. It says they should consult those they regulate to ensure guidance meets their needs, and create an environment where regulated entities can seek advice without fear of enforcement.

    It also says that advice should be reliable and aimed at supporting compliance, with mechanisms in place for collaboration between regulators. And where multiple regulators are involved, they should consider each other’s advice and resolve disagreements through discussion.

    That’s partly because Hampton had argued that advice should be a central part of a regulators’ function:

    Advice reduces the risk of non-compliance, and the easier the advice is to access, and the more specific the advice is to the business, the more the risk of non-compliance is reduced.

    Hampton argued that regulatory complexity creates an unmet need for advice:

    Advice is needed because the regulatory environment is so complex, but the very complexity of the regulatory environment can cause business owners to give up on regulations and ‘just do their best’.

    He said that regulators should prioritise advice over inspections:

    The review has some concerns that regulators prioritise inspection over advice. Many of the regulators that spoke to the review saw advice as important, but not as a priority area for funding.”

    And he argued that advice builds trust and compliance without excessive enforcement:

    Staff tend to see their role as securing business compliance in the most effective way possible – an approach the review endorses – and in most cases, this means helping business rather than punishing non-compliance.

    If we cast our minds back to 2011, despite the obvious emerging complexities in freedom from speech, OfS had in fact done very little to offer anything resembling advice – either on the Public Interest Governance Principles at stake in the Sussex case, or on the interrelationship between them and issues of EDI and harassment.

    Back in 2018, a board paper had promised, in partnership with the government and other regulators, an interactive event to encourage better understanding of the regulatory landscape – that would bring leaders in the sector together to “showcase projects and initiatives that are tackling these challenges”, experience “knowledge sharing sessions”, and the opportunity for attendees to “raise and discuss pressing issues with peers from across the sector”.

    The event was eventually held – in not very interactive form – in December 2022.

    Reflecting on a previous Joint Committee on Human Rights report, the board paper said that it was “clear that the complexity created by various forms of guidance and regulation is not serving the student interest”, and that OfS could “facilitate better sharing of best practice whilst keeping itself apprised of emerging issues.”

    I’m not aware of any activity to that end by October 2021 – and even though OfS consulted on draft guidance surrounding the “protect” duty last year, it’s been blocking our FOI attempts to see the guidance it was set to issue when implementation was paused ever since, despite us arguing that it would have been helpful for providers to see how it was interpreting the balancing acts we know are often required when looking at all the legislation and case law.

    The board paper also included a response to the JCHR that said it would be helpful to report on free speech prompted by a change in the risk profile in how free speech is upheld. Nothing to that end appeared by 2021 and still hasn’t unless we count a couple of Arif Ahmed speeches.

    Finally, the paper said that it was “not planning to name and shame providers” where free speech had been suppressed, but would publish regulatory action and the reasons for it where there had been a breach of registration condition E2.

    Either there’s been plenty of less serious interventions without any promised signals to the sector, or for all of the sound and fury about the issue in the media, there really haven’t been any cases to write home about other than Sussex since.

    Willing, but ready and able?

    The point about all of that – at least in this piece – is that it’s actually perfectly OK for a regulator to both advise and judge.

    It isn’t so much to evaluate whether the fine or the process has been fair, and it’s not to suggest that the regulator shouldn’t be deploying the “send an example to promote compliance” tactic.

    But it is to say that it’s obvious that those should be used in a properly risk-based context – and where there’s recognised complexity, the very least it should do is offer clear advice. It’s very hard to see how that function has been fulfilled thus far.

    In the OECD paper Reducing the Risk to Policy Failure: Challenges for Regulatory Compliance, regulation is supposed to be about ensuring that those regulated are ready, willing and able to comply:

    • Ready means clients who know what compliance is – and if there’s a knowledge constraint, there’s a duty to educate and exemplify. It’s not been done.
    • Able means clients who are able to comply – and if there’s a capability constraint, there’s a duty to enable and empower. That’s not been done either.
    • Willing means clients who want to comply – and if there’s an attitudinal constraint, there’s a duty to “engage, encourage [and then] enforce”.

    It’s hard to see how “engage” or “encourage” have been done – either by October 2021 or to date.

    And so it does look like an assumption on the part of the regulator – that providers and SUs arguing complexity have been being disingenuous, and so aren’t willing to secure free speech – is what has led to the record fine in the Sussex case.

    If that’s true, evidence-free assumptions of that sort are what will destroy the sort of trust that underpins effective regulation in the student interest.

    Source link

  • Sussex fined almost £600k over free speech

    Sussex fined almost £600k over free speech

    The University of Sussex is to be fined a record £585,000 over a failure to uphold free speech and academic freedom.

    The Office for Students (OfS) has found “significant and serious breaches” of free speech and governance issues at the University of Sussex.

    The regulator’s investigation, which followed the departure of academic Kathleen Stock from the university, says that said policies intended to prevent abuse or harassment of certain groups on campus had created “a chilling effect” that might cause staff and students to “self-censor.”

    OfS found that Sussex’s policy statement on “trans and non-binary equality” failed to uphold the principles of freedom of speech and academic freedom governance – and had created a “chilling effect” on campus.

    It also said the university failed to have “effective and adequate management and governance arrangements in place” to uphold those principles.

    Officially, OfS’ inquiry focused on the university’s general compliance with the regulatory framework, rather than the departure of Kathleen Stock specifically – but also found “no evidence to suggest that Professor Stock’s speech during her employment at the university was unlawful.”

    Sussex has come out fighting. Vice chancellor Sasha Roseneil told the Financial Times that universities are now exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse, and said the regulator had decreed “free speech absolutism as the fundamental principle” for universities.

    She also claims the regulator had “refused to speak to us,” and that the fine imposed was “wholly disproportionate” – arguing the university had defended Stock’s right to pursue her academic work and express her “lawful beliefs.”

    The report – some 1,224 days since OfS says it opened the investigation – comes at a tricky time for the government. Its decision first to pause, and then announce an intention to partially repeal the Higher Education (Freedom of Speech) Act, has to some extent been centred on concerns that the Act as passed represented a “hate speech charter” preventing universities from taking steps to protect marginalised groups on campus.

    OfS’ decision – notwithstanding that it is one taken in the context of a previous and pre-existing legal framework – will therefore be widely seen as rebuttal of the idea that protection of that sort conflicts with free speech and academic freedom.

    But on the other side of that argument is Sussex itself – experiencing OfS’ fifth ever fine, and arguing that OfS’ decision will itself have a chilling effect on efforts to:

    …prevent abuse, harassment or bullying, to protect groups subject to harmful propaganda, or to determine that stereotyped assumptions should not be relied upon in the university curriculum.

    Kathleen Stock left her post as Professor of Philosophy at the University of Sussex in October 2021, shortly after which the Office for Students (OfS) announced that it had opened an investigation focused on whether or not the university had met its obligations for academic freedom and freedom of speech within the law for all students and staff, whatever their views.

    Although Stock and her departure from Sussex has become easily the most-referenced example used to illustrate the need for the Higher Education (Freedom of Speech) Act, it had at that stage only recently completed its run in the Commons – so the investigation opened by OfS was over whether the university had complied with general ongoing conditions E1 and E2 – which, in the original Jo Johnson design, were designed to give regulatory force to the “public interest governance principles” for academic freedom and freedom of speech.

    This report outlines how OfS determined breaches of conditions E1 and E2, how penalties were calculated, and raises concerns that the university may have breached broader legal duties on free speech and academic freedom. Here there’s a short background, a look in detail at the report itself, and what it might mean for the campus culture wars in coming years.

    Background

    In late 2021 at the University of Sussex – a campus with a long history of radical politics – a group of students describing themselves as queer, trans, and non-binary had mounted a campaign calling for Stock’s dismissal.

    Responding both to her teaching and books, they claimed she was espousing a “bastardised version of radical feminism that excludes and endangers trans people.” Posters and protests ensued, Stock reported receiving death threats and was advised by police to take safety precautions, and the university’s vice chancellor, Adam Tickell (now at Birmingham) defended Stock’s academic freedom and announced an investigation into the protests.

    More than 200 academic philosophers from across the UK went on to sign an open letter supporting Stock’s right to “engage in open and scholarly debate without fear of harassment,” but notably the Sussex branch of the University and College Union (UCU) criticized Tickell’s stance, expressing solidarity with the protesting students and calling for an investigation into “institutional transphobia” at the university.

    Stock resigned on 28 October, and in a subsequent radio interview on Woman’s Hour, she denied being transphobic, and explained that her resignation followed attacks from colleagues who opposed her views and who, according to Stock, encouraged an “extreme” response from their students. Stock also said that it was the UCU statement that had “effectively ended” her career at Sussex.

    What was novel about the affair is that while there had been quoted incidents of “mobbing,” “cancellation,” and “no platforming,” these had tended to be focused on figures outside of universities, visiting as speakers.

    Since the Education Act 1986 had started to require to universities to “take reasonably practicable steps to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers,” it had been the last of that list that had caused that legislation – and the last of that list that had largely generated skirmishes since.

    But when Arif Ahmed – now OfS’ Director for Academic Freedom and Freedom of Speech, then a fellow philosopher at the University of Cambridge – wrote for Index on Censorship in early 2022, he noted a new character to conflict on campus. Ahmed picked up other cases – the 500 students that had petitioned Oxford University to force two professors to include trans women in their research into women’s equality, and the academics that had had talks cancelled at Essex University after they were accused of transphobia.

    Not wanting to “anticipate what that inquiry finds,” the article also argued that in principle, there may be academic freedom issues on both sides, including “the right of students (or anyone else) to protest against her” – albeit that:

    …we must distinguish peaceful protest in favour of a principle like rights for trans people… harassment and victimisation of an individual aimed at blocking their speech.

    That often fraught line – between freedom to speak (and research), and freedom from harm – is both as old as John Stuart Mill’s On Liberty (1859), and one that has dogged the debate about campus culture generally and the Higher Education (Freedom of Speech) Act specifically ever since. Where a regulator might draw the line has been an open question – and the report now illustrates it clearly.

    An inspector calls

    On 7 October 2021, OfS contacted the university seeking information on what steps it had taken to protect free speech and academic freedom for Kathleen Stock and others with similar views, and how it had assessed whether the incident amounted to harassment based on her gender critical beliefs. After reviewing this and examining relevant policies, it formally launched an investigation on 22 October.

    The investigation focused on whether the university had taken reasonably practicable steps to uphold lawful free speech and academic freedom, whether its governance documents complied with OfS public interest principles and legal duties (including under the Equality Act 2010), and whether its policies – particularly those on academic freedom, HR, and EDI – had negatively impacted free expression.

    It imposed “cooperation requirements,” reviewed multiple rounds of documentation, and considered policy changes made during the process. Provisional findings were shared in March 2024, and final decisions were made on 14 February 2025 after considering the university’s response.

    The first breach – of Condition E1 – concerns the university’s governing documents, and the way in which OfS says they restricted lawful speech – including “gender critical” views, which are protected under the Equality Act 2010.

    OfS says this created a chilling effect – discouraging staff and students from expressing certain views. Though not officially about Stock’s case per se, it’s cited as a real-world example – OfS taking the opportunity to remind readers of its role in safeguarding lawful free speech through a viewpoint-neutral, “impartial” approach.

    The university first adopted a Trans and Non-Binary Equality Policy Statement in November 2018. On 12 November, a proposal was made to publish it on 20 November – Trans Day of Remembrance. The draft was reviewed by the University Executive Group (UEG) on 13 November, which supported its general direction, but called for further discussion after review by the Equality, Diversity and Inclusion Committee.

    Despite this, the UEG held an unscheduled meeting on 14 November 2018, during which it approved the statement for publication on 20 November. No separate minutes were recorded for this meeting. That 2018 version remained in effect when OfS began its investigation in October, and is the main source of the compliance problem.

    Some tricky timeline issues ensue which relate to later revisions, and OfS has not yet determined whether one of its identified breaches has extended beyond March of last year.

    But essentially, the judgement centres on four aspects of different versions of the university’s policy – which it’s counting here for E1 purposes as one of the university’s governing documents:

    • A requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives.” OfS refers to this as the Positive Representation Statement throughout its report;
    • A statement that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people”. It refers to this as the Stereotyping Statement;
    • A statement that “transphobic propaganda … will not be tolerated.” It refers to this as the Transphobic Propaganda Statement;
    • A statement that “transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures.” It refers to this as the Disciplinary Statement.

    OfS’ conclusion is that the university breached E1 because the four statements breached the academic freedom and freedom of speech principles.

    That’s partly because the statements were capable of restricting lawful speech – including in-course content – and signalled that some views weren’t welcome. This, says OfS, produced a chilling effect – Stock self-censored, and others likely did too. She removed lawful material from her curriculum, narrowing academic debate and reducing students’ exposure to diverse views. Other staff may have followed suit or felt pressured to.

    Its argument is that the policy lacked safeguards for legally protected beliefs like “gender critical” views and that its other governing documents didn’t fill that gap. The university’s wider “Statute VII” offered some protection for free speech and academic freedom, but in OfS’ view was insufficient.

    Partly because the investigation has been on for a long time – and partly because the university has been making changes to policies throughout – there’s also some complex evaluation of what’s happened since the initial investigation opened, all of which is of a similar nature.

    See-saw

    Much of the material on wider legal duty breaches is focussed on gender critical views as a protected belief – anyone searching for the ways in which OfS might have evaluated efforts to protect trans students just won’t find it.

    Hence OfS found no “credible evidence” that the university assessed whether its restrictions on expression under the Trans and Non-Binary Equality Policy Statement were proportionate – a key requirement under Article 10 of the European Convention on Human Rights – that it says raised the risk that the policy’s interferences with freedom of expression were disproportionate and therefore unlawful.

    Similarly, OfS was concerned the university may have breached equality law under section 19 of the Equality Act 2010 by indirectly discriminating against individuals with gender critical beliefs – a protected characteristic. The Trans and Non-Binary Equality Policy Statement included provisions (e.g. the Positive Representation, Stereotyping, Transphobic Propaganda, and Disciplinary Statements) that it says restricted lawful speech, including gender critical views. Again, OfS found no credible evidence that the university conducted an objective justification assessment for the restrictions when adopting the policy.

    OfS was also concerned that the university may have failed to comply with the Public Sector Equality Duty (PSED). It found no credible evidence that the university properly considered the equality implications of the policy, as required under the PSED, and while the university claimed to have conducted an Equality Impact Assessment for the 2023 version, this appeared limited to the removal of the Positive Representation Statement and did not assess the remaining content.

    Taken as a whole, this is a pretty extensive illustration of the principle both in the Higher Education (Freedom of Speech) Act 2023 and OfS’ draft guidance on it – both on “particular regard” to the importance of freedom of speech, and these two notable paras in the draft:

    Freedom of speech within the law is protected. Unlawful speech is not protected. However, there is no need to point to a specific legal basis for speech. Instead, the starting point is that speech is permitted unless restricted by law.

    Free speech includes lawful speech that may be offensive or hurtful to some. Speech that amounts to unlawful harassment or unlawful incitement to hatred or violence (for instance) does not constitute free speech within the law and is not protected.

    There are likely to be debates about the extent to which that was clear to providers in the old regime, and whether the new regime is merely an enforcement wrapper around pre-existing legal duties – but that’s the framing in use in this decision.

    A record (reduced) fine

    The fining decision is then explained in in line with Regulation 4 of the 2019 Monetary Penalties Regulations, where OfS considered several factors – the nature, seriousness, duration, and impact of the breach; any financial or other benefit the university may have gained or losses it avoided; and whether the breach had been repeated.

    OfS assessed that the breach was “serious, prolonged, and had a chilling effect on lawful speech and academic freedom” – and while no direct financial gain was identified, the regulatory failure was significant enough to warrant a monetary penalty to reflect the severity and ensure accountability.

    In setting the penalty, OfS also considered steps the university took to prevent future breaches and the likely impact of a monetary penalty on students. A “baseline penalty” was established as per Regulation 4, then adjusted based on aggravating and mitigating factors, including the university’s compliance history. The maximum penalty allowable was either 2 per cent of qualifying income or £500,000, whichever was higher.

    For 2023–24, Sussex’s qualifying income was £232,358,874, making the cap £4,647,177. OfS applied its published framework (Regulatory Advice 19) to determine the final penalty, ensuring it was “proportionate, targeted, and justified” in light of the breach’s seriousness and the steps taken by the university since.

    The university’s financial position was relevant – with (at the time) substantial income and reserves, OfS concluded that a penalty would not materially harm students. Instead, it would promote future compliance, both at Sussex and, notably, across the sector. The baseline penalty was set at 0.9 per cent of qualifying income: £2,091,230.

    Mitigating factors included steps taken by the university to reduce the restrictive effect of its policy like removing the “positive representation” requirement, adding an objective definition of “transphobic abuse,” and including a safeguard for academic freedom in the 2023 policy.

    Aggravating factors included the length of the breach (over four years) and the failure to self-report. After applying both sets of factors – each justifying a 0.2 per cent adjustment in opposite directions – the penalty remained unchanged at 0.9 per cent.

    The university’s compliance history did not warrant any further adjustment. It cooperated with the investigation and there was no evidence of dishonesty, recklessness, or concealment. Accordingly, after the first three steps of the process, the final penalty for the breach remained £2,091,230.

    Governance and delegation

    The second breach (Condition E2) was a process one – key policies were adopted by groups lacking the delegated authority to do so. The Prevent Steering Group approved the 2021 Freedom of Speech Code of Practice, the University Executive Group approved the 2023 External Speakers’ Procedure, and also approved the 2022 and 2023 versions of the Trans and Non-Binary Equality Policy Statement – each time acting outside its remit.

    These governance failures were deemed significant. Decisions were made by bodies not authorised to take them, raising the risk of insufficient scrutiny or expertise and potentially compromising compliance with legal and regulatory duties. Those failures, found OfS, could result in decisions not in the best interests of staff or students. The breach was not an isolated incident, but part of a pattern suggesting “systemic weaknesses rather than a one-off lapse.”

    The university didn’t report the breach to OfS (the old Kafka-esque rules around the reportable events regime), nor has it taken clear steps to address or rectify its governance failures. As such, OfS concluded that its intervention factors supported a breach of condition E2(i), and that regulatory action was necessary to address the university’s ongoing non-compliance with its own governance framework.

    This time the baseline penalty was 0.5 per cent of the university’s qualifying income (£1,161,794) for the E2 breach, reflecting its seriousness as a governance failure. While the decisions made without proper authority risked poor quality outcomes, the direct impact on students was assessed as less severe than the E1 breach, and the penalty was also viewed as a means to incentivise future compliance, both at Sussex and across the sector.

    Because of aggravating factors – like the longstanding nature of the breach, failure to report it, and lack of remedial steps – the penalty was increased by 0.2 percentage points, bringing it to 0.7 per cent (£1,626,512). No mitigating factors were identified.

    As with the E1 breach, the university’s compliance history didn’t affect the penalty, and it had cooperated with the investigation – but OfS ultimately concluded that penalties at the calculated levels would be disproportionately high. And so balancing all considerations – the seriousness of the breaches, financial capacity, cumulative penalty size, and the novelty of regulatory enforcement in this area – OfS reduced the final penalties and imposed £360,000 for the E1 breach and £225,000 for the E2 breach, totalling £585,000.

    This was deemed “sufficient” to deter future non-compliance while maintaining financial sustainability. Sussex says the fine is “wholly disproportionate.”

    Fallout and next steps

    There will doubtless be some fallout from the decision – not least because Sussex is (at least in principle) very publicly criticising the process, the fine, and the judgement made on the EDI/freedom of speech see saw.

    In some ways what’s surprising – although on reflection inevitable – is that this wasn’t really an investigation about the Stock affair at all. She and others calling for full implementation of the Higher Education (Freedom of Speech) Act may well argue that the investigation ought to have handled how she was treated, how she was protected (or otherwise) by the university, and drawn conclusions about the handling of events leading to her departure. OfS may well argue – campaigners almost certainly will – that that would only have been possible under the Higher Education (Freedom of Speech) Act.

    There are real questions over how long the process has taken, that are not substantially addressed or answered in the report – and the huge fine imposed. That OfS is able to follow the logic of its own documents is one thing, but when compared against some of the teaching and learning investigations it’s done so far, either those providers are in for huge fines, or inevitable comparisons are going to be drawn about relative impact.

    There will also be questions about Arif Ahmed himself. The report dots the Is and crosses the Ts as we would expect it to – and includes the “neutrality” defence we’ve come to recognise. But even though he’s unlikely to have been personally involved in this process, we should be reminded of the OIA’s advice that providers need to take steps to avoid “actual bias and the reasonable perception of bias” when handling complaints. Given in a previous role that Index on Censorship blog was entitled “We academics must fight the mob – now”, it’s not hard to see why some might at least perceive an agenda.

    The other questions surround the jurisprudence. It remains the case that in the cases we’ve seen, different levels of protection for freedom of speech apply in different contexts – there’s no doubt that in a lecture hall or seminar room, the way the Human Rights Act is applied is different to during someone’s personal life, free time, and so on. There’s nothing in here on the different contexts of conduct that a “university” encompasses – and it remains a hole in what OfS has published so far, and arguably in the way it has evaluated the policies for the breaches.

    The practical compatibility of the decision with impending heavy duties on harassment will also be a concern – with frantic rewrites of policies similar in nature and tone to that adopted by Sussex likely to face pushback from those who fear a wider retreat from equality-focussed work.

    It’s the government, though, that faces the trickiest set of decisions from here on in. Its decision to pause and intent to soften somewhat the Act has all been about a perception that it was to result in free speech absolutism at the expense of the protection of minorities.

    It may be a reflection of the law or a very particular (and contestable) interpretation of it – and legal challenges may ensue – but if nothing else, it’s hard to see how the version of “absolutism” deployed here is compatible with (for example) the IHRA definition of antisemitism – something successive governments have consistently supported, and which Ahmed himself only changed position on when taking up his role.

    Notwithstanding that Labour has disappointed trans campaigners since taking office, it will now have to decide whether Sussex is right that universities are now “exposed to regulatory risk if they have policies that protect staff and students from racist, homophobic, antisemitic, anti-Muslim or other abuse.” And if they are, whether the problem is the Higher Education (Freedom of Speech) Act, the Human Rights Act, or Arif Ahmed himself.

    Source link

  • Daring students to take risks and be wrong is key to solving the campus culture wars

    Daring students to take risks and be wrong is key to solving the campus culture wars

    Goodbye then, the Higher Education (Freedom of Speech) Act parts A3, A4, A7 and parts of A8 – we hardly knew you.

    The legal tort – a mechanism that seemed somehow to be designed to say “we’ve told the regulator to set up a rapid alternative mechanism to avoid having to lawyer up, but here’s a fast track way to bypass it anyway”, is to be deleted.

    The complaints scheme – a wheeze which allowed an installed Director for Freedom of Speech and Academic Freedom to rapidly rule on whatever it was that the Sunday papers were upset about that week – will now be “free” (expected) to not take up every dispute thrown its way.

    Students themselves with a complaint about a free speech issue will no longer have to flip a coin between a widely respected way of avoiding legal disputes and an untested but apparently faster one operated by the Director which was to be flagged in Freshers’ handbooks. The OIA it is.

    Foreign funding measures – bodged into the act by China hawks who could never work out whether the security services, the Foreign Office or the Department for Education were more to blame for encouraging universities to take on Chinese students – will now likely form part of the revised “Foreign Influence Registration Scheme” created by the National Security Act 2023.

    A measure banning universities from silencing victims of harassment via a non-disclosure agreement will stay, despite OfS saying it was going to ban NDAs anyway – although nobody seems able to explain why their use will still be fine for other victims with other complaints.

    And direct regulation of students’ unions – a measure that had somehow fallen for the fanciful idea that their activities are neither regulated nor controlled by powerless university managements and the Charity Commission – will also go. The “parent” institution will, as has always been the case, revert to reasonably practicable steps – like yanking its funding.

    As such, save for a new and vague duty to “promote” free speech and academic freedom, the new government’s intended partial repeal of legislation that somehow took the old one two parliaments to pass – a period of gestation that always seemed more designed to extend the issue’s prevalence in the press than to perfect its provisions – now leaves the sector largely back in the framework it’s been in for the best part of 40 years.

    That the Secretary of State says that all of the above is about proceeding in a way that “actually works” will raise an eyebrow from those who think a crisis in the academy has been growing – especially when the government’s position is that the problem to be fixed is as follows:

    In a university or a polytechnic, above all places, there should be room for discussion of all issues, for the willingness to hear and to dispute all views including those that are unpopular or eccentric or wrong.

    Actually, that was a quote from Education Secretary Keith Joseph in 1986, writing to the National Union of Students over free speech measures in the 1986 act. But Bridget Phillipson’s quote wasn’t much different:

    These fundamental freedoms are more important—much more important—than the wishes of some students not to be offended. University is a place for ideas to be exposed and debated, to be tried and tested. For young people, it is a space for horizons to be broadened, perspectives to be challenged and ideas to be examined. It is not a place for students to shut down any view with which they disagree.

    The message for vice chancellors who fail to take this seriously couldn’t have been clearer – “protect free speech on your campuses or face the consequences”. But if it’s true that for “too long, too many universities have been too relaxed about these issues”, and that “too few took them seriously enough” – what is it that that must now change?

    Back to the future

    There is no point rehearsing here the arguments that the “problem” has been overblown, centring on a handful of incidents in a part of the sector more likely to have been populated by the lawmakers and journalists whose thirst for crises to crack down on needs constant fuel. And anyway, for those on the wrong end of cancellation, the pain is real.

    There is little to be gained here from pointing out the endless inconsistencies in an agenda that seemed to have been designed to offer a simplistically minimalist definition of harassment and harm and a simplistically maximalist definition of free speech – until October 7th 2023 turned all that on its head.

    There isn’t a lot of benefit in pointing out how unhelpful the conflation between academic freedom and freedom of speech has been – one that made sense for gender-critical academics feeling the force of protest, but has been of no help for almost anyone involved in a discipline attempting to find truth in historic or systemic reasons for other equality disparities in contemporary society.

    Others write better than me, sometimes in ways I don’t recognise, sometimes in ways I do, about the way in which the need to competitively recruit students, or keep funders happy, or to not be the victim of a fresh round of course cuts inhibits challenge, drains the bravery to be unpopular, and is the real cause of a culture of “safetyism” on campus.

    And while of course it is the case that higher education isn’t what it was – which even in its “new universities” manifestations in the 1960s imagined small parts of the population engaging in small-group discussions between liberal-minded individuals able to indulge in activism before a life of elitism – I’ve grown tired of pointing out that the higher education that people sometimes call for isn’t what it is, either.

    What I’m most concerned about isn’t a nostalgic return to elite HE, or business-as-usual return to whatever it was or wasn’t done in the name of academic freedom or freedom of speech in a mass age – and nor is it whatever universities or their SUs might do to either demonstrate or promote a more complex reality. I’m most concerned about students’ confidence.

    The real crisis on campus

    Back in early 2023, we had seen surveys that told us about self-censorship, pamphlets that professed to show a culture of campus “silent” no platforming, and polling data that invited alarm at students’ apparent preference for safety rather than freedom.

    But one thing that I’d found consistently frustrating about the findings was the lack of intelligence on why students were responding the way they apparently were.

    For the endless agents drawing conclusions, it was too easy to project their own assumptions and prejudices, forged in generational memory loss and their own experiences of HE. Too easy to worry about the 14 per cent of undergrads who went on to say they didn’t feel free to express themselves in the NSS – and too easy to guess “why” that minority said so.

    As part of our work with our partners at Cibyl and a group of SUs, we polled a sample of 1,600 students and weighted for gender and age.

    We found that men were almost ten percentage points higher than women on “very free”, although there was gender consistency across the two “not free” options. Disabled students felt less free than non-disabled peers, privately educated students felt more free than those from the state system, and those eligible for means-tested bursaries were less confident than those who weren’t.

    In the stats, those who felt part of a community of students and staff were significantly more likely to feel free to express themselves than those who didn’t – and we know that it’s the socio-economic factors that are most likely to cause feelings of not “fitting in”.

    But it was the qualitative comments that stuck with me. Of those ticking one of the “not free” options, one said that because the students on their course were majority white students, they “often felt intimidated to speak about certain things”.

    Another said that northern state school students are minorities – and didn’t really have voices there:

    Tends to be posher middle class private school educated students who are heard.

    Mature students aren’t part of the majority and what I have said in the past tends to get ignored.

    Many talked about the sort of high-level technical courses that policymakers still imagine universities don’t deliver. “Engineering doesn’t leave much room for opinion like other courses”, said one. “Not a lot of room in my degree for expression” said another.

    And another gave real challenge to those in the culture wars that believe that all opinions are somehow valid:

    My course doesn’t necessarily allow me to express my freedom as everything is researched based with facts.

    Ask anyone that attempted to run a seminar on Zoom during Covid-19, and you get the same story – switched-off cameras, long silences, students seemingly afraid to say something for fear of being ostracised, or laughed at, or “getting it wrong”.

    As a former SU President put it on the site in 2023:

    This year there have been lecture halls on every campus stacked with students who don’t know how to start up a conversation with the person sat next to them. There were emails waiting to be sent, the cursor flashing at the start of a sentence, that the struggling student didn’t know how to word… This question is whether or not the next generation is actually being taught how to interact and be comfortable in their own skin… They have to if they’re claiming to.

    Freedom from fear?

    The biggest contradiction of all in both the freedom of speech and academic freedom debates that have engulfed the sector in recent years was not a lack of freedom – it was the idea that you can legislate to cause people to take advantage of it:

    In lectures and seminars there is often complete silence. The unanimity of asking a question or communicating becomes daunting when you’re the only one.

    Fear you’ll be laughed at or judged if you get it wrong

    In terms of lectures, the students in my class feel shy to share opinions which affects me when I want to share.

    Again this is a personal thing I don’t often like expressing my points of view in person to people I don’t know very well. Also they probably won’t be listened to so I don’t see the point.

    I feel very free amongst my other students in our WhatsApp groups (not governed by the university). However, freedom of expression in support sessions often ends up not occurring as everyone is anxious due to how the class has been set up.

    Once in class I simply got one word mixed up with another and the lecturer laughed and said. ‘yes…well…they do mean the same thing so that has already been stated.’ Making me and also my fellow students reluctant to ask any questions at all as we then feel some questions are ridiculous to ask. How are we to express our thoughts if we feel we will be ridiculed or made to feel ridiculous?

    For those not on programmes especially suited to endless moral and philosophical debates, a system where the time to take part in extracurriculars is squeezed by part-time work or public transport delays is not one that builds confidence to take part in them.

    The stratification of the sector – where both within universities and between them, students of a particular type and characteristic cluster in ways that few want to admit – drives a lack of diversity within the encounters that students do have in the classroom.

    And even for those whose seminars offer the opportunity for “debate”, why would you? Students have been in social media bubbles and form political opinions long before they enrol. And Leo Bursztyn and David Yang’s paper demonstrates that people think everyone in their group shares the same views, and that everyone in the outgroup believes the opposite.

    As Harvard political scientist David Deming argues here:

    Suppose a politically progressive person offers a commonly held progressive view on an issue like Israel-Palestine, affirmative action, or some other topic. Fearing social sanction, people in the out-group remain silent. But so do in-group members who disagree with their group’s stance on that particular issue. They stay silent because they assume that they are the only ones in the group who disagree, and they do not want to be isolated from their group. The only people who speak up are those who agree with the original speaker, and so the perception of in-group unanimity gets reinforced.

    Deming’s solution is that universities should tackle “pluralistic ignorance” – where most people hold an opinion privately but believe incorrectly that other people believe the opposite.

    He argues that fear of social isolation silences dissenting views within an in-group, and reinforces the belief that such views are not widely shared – and so suggests making use of classroom polling tech to elicit views anonymously, and for students to get to know each other privately first, giving people space to say things like “yes I’m progressive, but my views differ on topic X.”

    Promoting free speech?

    Within that new “promote” duty, it may be that pedagogical innovation of that sort within the curriculum will make a difference. It may also be that extracurricular innovation – from bringing seemingly opposed activist groups on campus together to listen to each other, through to carefully crafted induction talks on what free speech and academic means in practice – would help. Whether it’s possible to be positive about EDI in the face of the right to disagree with it remains to be seen.

    Upstream work on this agenda might help too – it’s odd that a “problem” that must be partly about what happens in schools and colleges is never mentioned in the APP outreach agenda, just as it’s frustrating that the surface diversity of a provider is celebrated while inside, the differences in characteristics between, say, medical students and those studying Business and Management are as vast as ever.

    Students unions – relieved of direct scrutiny on the basis that they are neither “equipped nor funded” to navigate such a complex regulatory environment – might argue that the solution is to equip them and fund them, not remove the regulation. They might also revisit work we coordinated back in 2021 – much of which was about strengthening political debate in their own structures as a way to demonstrate that democracy can work.

    Overall, though, someone somewhere is going to get something wrong again. They’ll fail to act to protect something lawful; or they’ll send a signal that something was OK, or wrong, when they should have decided the opposite.

    As such, I’ve long believed that the practice of being “wrong” needs to be role-modelled as strongly as that of being right. If universities really are spaces of debate and the lines between free speech and harassment are contested and context-specific, the sector needs to find a way to adjudicate conflict within universities rather than leaving that to the OIA, OfS, the courts or that other court of public opinion – because once it gets that far, the endless allegations of “bad faith” on both sides prevent nuance, resolution and trust.

    Perhaps internal resolution can be carried out in the way we found in use in Poland on our study tour, using trusted figures appointed from within – and perhaps it can be done by identifying types of democratic debate within both academic and corporate governance that give space to groups of staff and students with which one can agree or disagree.

    If nothing else, if Arif Ahmed is right – and “speech and expression were essential to Civil Rights protestors, just as censorship was their opponents’ most convenient weapon”, we will have to accept that “nonviolent direct action seeks to… dramatize an issue that it can no longer be ignored” – and it has as much a place on campus as the romantic ideals of a seminar room exploring nuance.

    Lightbulb moments need electricity

    But even if that helps, I’m still stuck with the horse/water/drink problem – that however much you promote the importance of something, you still need to create the conditions to take up what’s on offer. What is desired feels rich – when the contemporary student experience is often, in reality, thin. What if the real problem isn’t student protest going too far, but too few students willing to say anything out loud at all?

    Students (and their representatives) left Twitter/X/Bluesky half a decade ago, preferring the positivity of LinkedIn to being piled-onto for an opinion. Spend half an hour on Reddit’s r/UniUK and you can see it all – students terrified that one wrong move, one bad grade, one conversation taken the wrong way, one email to a tutor asking why their mark was the way it was – will lead to disaster. The stakes are too high, and the cushion for getting anything wrong too thin, to risk anything.

    Just as strong messages about the importance of extracurricular participation don’t work if you’re holding down a full-time job and live 90 minutes from campus, saying that exploring the nuances of moral and political debate is important will fall flat if you’re a first-in-family student hanging on by a thread.

    Much of this all, for me, comes back to time. Whatever else people think higher education is there to do, it only provides the opportunity to get things wrong once the pressure is off on always getting things right. Huge class sizes, that British obsession with sorting and grading rather than passing or failing, precarious employment (of staff and students) and models of student finance that render being full-time into part-time are not circumstances that lead anyone to exploring and challenging their ideas.

    Put another way, the government’s desire that higher education offers something which allows horizons to be broadened, perspectives to be challenged and ideas to be examined is laudable. But if it really wants it happen, it does have to have a much better understanding of – and a desire to improve – the hopeless precarity that students find themselves in now.

    Source link

  • Bridget Phillipson reaffirms commitment to free speech

    Bridget Phillipson reaffirms commitment to free speech

    Secretary of State Bridget Phillipson has delivered a statement to Parliament on her regulatory approach to higher education – specifically, the future of the Higher Education (Freedom of Speech) Act.

    Ahead of her day in court with the Free Speech Union – which is taking her to court over her implementation pause – she announced that key provisions will be brought into force, whilst “burdensome provisions” will be scrapped.

    And the good news is that pretty much for the first time from a minister on this issue, there’s an explicit recognition of the fine lines, complexities and contradictions often in play on the issue. A press notice covers largely the same material.

    You’ll recall that on taking office back in July, Phillipson paused further commencement of the Act in response to “concerns raised by a cross section of voices” – and controversially, at least for some, a “source” branded the Act as passed a “Tory hate charter”.

    In the intro, Phillipson said she was still committed to ensuring the protection of academic freedom and free speech – “vital pillars” of the university system:

    Universities are spaces for debate, exploration, and the exchange of ideas, not for shutting down dissenting views… extensive engagement with academics, universities, students, and minority groups revealed concerns about unworkable duties, legal system burdens, and potential impacts on safety, particularly amid rising antisemitism on campuses.

    Insights from her work to consult with interested stakeholders (both for and against the act), says Phillipson, have shaped a “balanced, effective, and proportionate approach” to safeguard free speech while addressing minority welfare.

    What stays

    First up, the government will commence the following requirements currently in the act (in sections 1,2 and 6):

    • The duties on higher education providers to take reasonably practicable steps to secure and promote freedom of speech within the law
    • The duty on higher education providers to put in place a code of conduct [practice] on freedom of speech

    Those are relatively uncontroversial – most providers were preparing in that spirit already, although the (very) detailed suggestions on compliance previously proposed by OfS may yet change.

    Underpinning that, Phillipson also intends to commence the duties on the Office for Students (OfS) (section 5) to promote freedom of speech and the power to give advice and share best practice. And unsurprisingly, the ban on non-disclosure agreements for staff and students making complaints about bullying, harassment and sexual misconduct will also remain.

    There was a curious passage on the Director for Free Speech and Academic Freedom role – the Secretary of State said that she had “complete confidence” in Arif Ahmed who will be staying on – but then criticised how he’d been appointed, drawing on interim Chair David Behan’s review of the regulator that had recommended a look at how all OfS executive and board appointments should be made.

    She said will decide on the process of appointing directors to the independent regulator “shortly”.

    What’s going

    A couple of other measures were “not proportionate or necessary”, so she’ll be seeking repeal.

    The duties on students’ unions are to go – because they’re neither “equipped nor funded” to navigate such a complex regulatory environment, and are already regulated by the Charity Commission:

    But I fully expect students unions to protect lawful free speech, whether they agree with the views expressed or not, and expect providers to work closely with them to make sure that happens, to act decisively to make sure their students union complies with their free speech code of conduct.

    That effectively returns us to the Education Act 1986 position – of providers taking reasonably practicable steps to get their SU to comply – and sensibly removes the prospect of a new student being told about two codes of practice to follow depending on who they’d booked a room with.

    Most controversially for some, she will also repeal the legal tort, on the basis that it would have resulted in:

    Costly litigation that risks diverting resources away from students at a time when University finances are already strained – remaining routes of redress have plenty of teeth.

    Those pro the tort worry that that only leaves OfS’ powers to find as the compliance lever – although others worried that the threat of it would have resulted in more threatening letters than sensible, nuanced decisions.

    What’s changing

    On the OfS free speech complaints scheme, it will remain in place for university staff and visiting speakers – but there will be two changes. OfS will first be freed up to prioritise the more serious complaints – and be officially empowered to ignore others.

    And the government will remove the “confusing duplication” of complaint schemes for students. Students will be diverted to using the Office of the Independent Adjudicator (OIA, and OfS will take complaints from staff, external speakers and university members.

    That doesn’t quite remove the potential duplication of the two bodies considering the same incident or issue from different angles/complaints – but it’s a sensible start.

    And the government will also amend the mandatory condition of registration on providers to give OfS flexibility in how they apply those conditions to different types of providers – we’d expect that to cover issues like the obvious oversight of 14-year olds in FE colleges caught by the Act suddenly gaining free speech rights.

    The government says it will also take more time to consider implementation of the overseas funding measures in the act as it “works at pace” on the wider implementation of the foreign influence registration scheme that was part of the National Security Act 2023. Those two bits of legislation never felt properly aligned – so that also feels pretty sensible.

    In the debate that ensued, there was some lingering suspicion from the opposition that that all amounted to the government going soft on China – and regardless of the foreign funding clauses, there were some concerns from providers about the workability of the draft OfS guidance on the main duties re oppressive regimes and TNE. That will be one to watch.

    Finally, we will also get a policy paper to set out the proposals in more detail, potentially alongside a decision on information provision for overseas funding.

    What’s next

    As we signalled back in March, the interaction with allegations and incidents of antisemitism appears to have been a big influence on the decisions – the press notice reminds readers that there were fears that the legislation would encourage providers to “overlook” the safety and wellbeing of minority groups, including Jewish students, and instead protect those who use hateful or degrading speech on campus:

    Groups representing Jewish students also expressed concerns that sanctions could lead to providers overlooking the safety and well-being of minority groups.

    Phillipson even referenced the faux pas from Michelle Donelan way back in May 2021 when, on the day the Bill was launched, she was unable to explain how the government’s proposals would prevent Holocaust deniers coming to campus.

    Phillipson said that she could see “no good reason” why any university would invite a Holocaust denier onto campus to deny the overwhelming evidence that the Holocaust is an “appalling form of antisemitism”. Even when the last government had clarified the position on holocaust denial, it never confirmed that holocaust deniers could be banned – and the point about many external speaker edge cases is that they rarely fill the form in with “I’m going to say something unlawful”.

    There’s still a way to go yet on these (and other) fine lines – in the ensuing debate, Phillipson said that she was worried that the regime that was due to launch would have “unduly prioritized” free speech which is hateful or degrading over the interests of those who feel harassed and intimidated – these issues, she said, can be “very finely balanced”. That may well see a push from the SOS that the two sets of guidance – on OfS’ new Harassment and Sexual Misconduct duties, and the drafts on this regime, are integrated more sensibly.

    The ongoing questions surrounding the IHRA definition of antisemitism may also yet pop up again too – not least because of Arif Ahmed’s own apparent u-turn on it and the ensuing cases challenging its usage in disciplinary procedures. Questions of pro-Palestinian activism on camps and where that might stray into antisemitism were notably absent from OfS’ guidance drafts.

    Overall, some in the debate will be furious at the government’s apparent watering down of the Act, others will be pleased that some of the arguably more unworkable aspects are being amended.

    But probably the most important signal from Phillipson was a recognition that the area is complex and decisions often finely balanced – putting a degree of trust in universities (and their SUs) that they will also take it seriously.

    Whatever else has happened over the past few years, there’s plenty of evidence that understanding has improved in the sector – it looks it has in Whitehall too. The question now is whether, next time an incident or issue comes along, it is handled by a university (or its SU) in a way that commands confidence.

    Source link