Universities (and SUs) still need answers on freedom of speech

In response, the Freedom of Speech Union (FSU) threatened judicial review in a pre-action protocol letter – alleging that Phillipson’s decision to axe the legislation was “unlawful”:

The Secretary of State was not entitled to act as she has done because she opposes the legislation or its policy. Any repeal of the legislation is a matter for Parliament not the executive.

Last week The Times reported that 500 academics have signed a letter calling on her to rethink the decision, warning that a failure to act would allow staff and students to be “hounded, censured and silenced” for holding legitimate, legal views.

And now the Telegraph reports that the government dropped the free speech law after universities feared for China interests.

Responding to that legal challenge from the Free Speech Union (FSU), government lawyers noted that “concerns” had been raised with them about the consequences for delivering English HE in countries which have restrictions on free speech:

The legal document also refers to concerns about the “costs of overseas transparency requirements”, which would have required universities to declare donations from foreign countries, over a certain amount.

While experts believe this points to their fear that the transparency requirement may put off prospective donors, Universities UK, the vice-chancellor membership group, said this refers to the cost of filling in forms.

A spokesperson for Universities UK referred to both the bureaucracy and the TNE issues:

Further, the application of English regulation to partnerships in other countries was impractical and stood to make our universities less able to engage in research and education collaborations that support the UK’s global ambitions.

Part of the problem is the draft guidance on the application of the Act that the Office for Students (OfS) put out for consultation back in March.

Example 3 in that document painted a scenario where a university accepts international students every year through a programme of visiting scholarships funded by the government of a foreign country. One condition of the scholarships in the scenario was that recipients must accept the basic principles of the ruling party of the country. Another was that recipients must accept direction from the country’s government via consular staff:

Depending on the circumstances, these arrangements may undermine free speech and academic freedom at [the UK] university. For instance, they may restrict the lawful expression of views by students. If so, amendment or termination of the scholarship agreement is likely to be a reasonably practicable step that [the] university should now take.

Not directly about TNE, that. But when combined with another section in the consultation on the definition of “student” for the purposes of advancing a complaint, the TNE issue raised a red flag:

A person undertaking, or with a binding offer to undertake, a course of study or a programme of research (i) at the institution in question or (ii) that leads to an award granted by the institution in question, and in either case this may include a trainee or apprentice.

UUK’s response to the consultation on guidance the application of the regulatory guidance in TNE settings required greater consideration, for example, “where the extraterritorial application of English regulation may conflict with legal obligations and requirements in the host country, which could – in extreme cases – put individuals at risk”.

As a result, it argued that “clarification” was needed on modes of TNE delivery that were within the scope of the guidance, the “parameters” for deciding which partnerships, staff and students based overseas were in scope, and what would constitute “reasonably practicable” in different legal jurisdictions and models of TNE partnerships:

Students studying overseas under a TNE arrangement will be subject to the laws of the country they are studying in, and the imposition of UK law or English regulation onto these students and/or partner processes may not be feasible. We urge the OfS to confirm that these students would not be in scope.

Staff members who deliver a UK TNE degree at a partner institution are generally not employed by the English TNE provider. We seek confirmation that these individuals would be out of scope, unless the actions resulting in the perceived impingement of freedom of speech were undertaken directly by the English TNE provider.

Of course as it stands, we are set to fall back to the Education Act 1986 (with its duty to take such steps as are reasonably practicable to ensure freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers), and the Public Interest Governance Principles enshrined in the OfS regulatory framework at Condition E1:

The provider… must uphold the public interest governance principles… as a minimum to reflect them, and where a public interest governance principle requires an active step to be taken, to provide a suitable framework to ensure that that step is identified, defined, taken, and can be shown to have been taken.

There’s also E2 (Management and Governance) which requires providers to deliver, in practice, the public interest governance principles, including:

Academic freedom: Academic staff at an English higher education provider have freedom within the law: to question and test received wisdom; and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or privileges they may have at the provider.

Freedom of speech: The governing body takes such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider.

Back in 2018 a paper to the OfS Board had proposed clearer guidance and an event for the sector. But there was a general sense of foot dragging on applying the 2017 regulation that intensified as soon as ministers started signalling that they would legislate.

The event only materialised in 2022 – and even the Kathleen Stock investigation, which opened in 2021 and was to consider whether Sussex had complied with E1 and E2 – has still, has far as we are aware, not concluded.

So the pause/repeal leaves OfS and DfE back at the pre-Act status quo – even DfE’s announcement reassured that…

…existing protections remain in place for free speech on campus and we continue to support the current legal duty on higher education providers to secure freedom of speech.

On one level, then, it’s strange for a “government source” to be responding to the 500 academics letter with this quote:

We make no apology for pausing the Tories’ hate speech charter, which would have allowed anti-semites and holocaust deniers free rein on campuses.

All the act did, really, was to introduce a new set of enforcement mechanisms to the Education Act 1986, the Higher Education and Research Act 2017, and the Human Rights Act – in the form of a complaints scheme, a closer look at SUs, a new condition of registration and a dedicated Director for Freedom of Speech and Academic Freedom.

The problem always was that it was never clear how OfS would interpret all of that in specific scenarios – where it would draw the line over protest (particularly over Israel/Gaza), whether it would apply it all to TNE, whether it would apply the same judgements to Rugby Club socials as it would academic essays, and whether it would view the banning of a holocaust denier as OK when the law appears to only allow the banning of holocaust denial.

None of those questions, along with a myriad others, have gone away. And so arguably, OfS and its Director for Freedom of Speech and Academic Freedom – who as far as we can make out, has not (yet) left his post – still have a duty to clarify pretty much all of the scenarios in its draft guidance, and respond to the questions and objections raised to it by universities and SUs.

Most of those questions relate either to whether “reasonably practicable” might apply to a given scenario, and/or whether and how the Human Rights Act’s balancing clauses (Article 17 and Article 10.2) and the jurisprudence arising from the numerous cases that reference those balancing duties would apply to any judgements made by OfS.

The point is that even if you think the enforcement mechanisms imposed by the Higher Education (Freedom of Speech) Act were heavy handed and impractical, the law on what should and shouldn’t be allowed hasn’t really changed, and there’s still a regulator around that is expected to enforce it.

Ideally, OfS will shift into the enabling mode promised in its 2018 board paper – helping providers wrestle with the balancing acts involved. But as a minimum, we now need to know what it was about to put out in its responses to its consultations.

Unless, of course, the real reason that the Higher Education (Freedom of Speech) Act has been scrapped is that when you poke a legal bear, sometimes you might not like the answers that come back. On all sides.