More straw clutching from the free speech absolutists

His argument over the judgement in The University of Sussex v The Office for Students runs like this:

Imagine a public footpath. The local authority has two rules. First, if the path can reasonably be kept open, it must be kept open. Second, if the path really cannot reasonably be kept open, any closure must be clear, must serve some objective, and must be no broader than that objective requires.

The two rules, he says, don’t collapse into one. The prior question always remains – why could the path not reasonably have been kept open?

He’s referring to the three-step framework in Regulatory Advice 24 (RA24):

• Step 1: is the speech within the law?
• Step 2: can reasonably practicable steps be taken to protect the speech?
• Step 3: if not, can a restriction meet a proportionality test?

On Saha’s reading, Step 2 and Step 3 are logically distinct. Step 2 asks whether non-interference is reasonably practicable. Step 3 only kicks in if it isn’t. And Step 3 is necessary but not sufficient – a proportionate restriction is still not allowed if non-interference is reasonably practicable.

From there he goes after paragraphs 221 and 249 of the judgment, in which the judge states that Steps 2 and 3 “largely if not wholly elide” and “elide into the same factual analysis.”

That, says Saha, is wrong. It produces a “conceptual muddle.” He worries that universities will be confused about what the Higher Education (Freedom of Speech) Act 2023 (HEFSA) requires. He then warns against “polemical attempts” to use the judgment to undermine RA24.

He notes that HEFoSA itself was not directly at issue in the proceedings – the case turned on whether the OfS had correctly applied its own regulatory requirements. He also argues that the protection RA24 provides under Step 2 extends beyond what Article 10(2) of the European Convention on Human Rights actually requires. Step 2, in other words, gives lawful speech more protection than the Convention does.

If this all sounds nerdy and technical, it’s because it is. But whether you regard the three bullets above as a set of steps to be taken in order or a set of things to think about in the round really matters.

Critical paths

Imagine a request comes in to host a high-profile speaker on a contested issue. Students say the planned content will harass them on grounds of religion or belief have asked the SU not to proceed in the planned format. The Equality Act and Prevent duties are both live on the same set of facts.

The speaker has already declined to appear online, to accept a chair with stronger interventions, or to take questions in a structured format. Is it “reasonably practicable” to host the event in the planned venue, at the planned time, in the planned format?

The university can’t answer without weighing those duties against the realistic alternatives still on the table – a different venue, a different time, advance notice to affected students, counter-programming, a smaller invite-only attendance.

There’s no version of the Step 2 question that doesn’t require that balancing. And the supposedly clean line between a “step that protects” and a “step that interferes” won’t hold – chairing a Q&A interferes with the speaker but protects the audience, moving venues interferes with the organiser’s first choice but protects everyone’s ability to hold the event at all. Most realistic options do both at once.

Take another example. With direct SU regulation under HEFoSA about to fall away, SU rules now run through the university’s free speech obligations. An SU has a long-standing rule that its own paid staff don’t publicly comment on candidates during officer elections.

The justification has always been an Article 10(2) one – a proportionate restriction necessary to preserve the integrity of a member-led democratic process, the neutrality of paid staff who support it, and the SU’s wider duties as a charity.

Now run the three steps sequentially. Step 1 says the staff member’s potential comments are within the law. Step 2 asks whether non-interference – letting them comment – is reasonably practicable. Of course it is, in the narrow physical sense Saha’s reading requires – nothing actually prevents the comment from being made. The ban fails at Step 2, Step 3 is never reached, and the Article 10(2) justification never gets weighed. The staff member is unbanned.

On the judge’s reading, “reasonably practicable” already encompasses the balancing, and the question becomes the one any SU actually asks – is it proportionate to require neutrality from paid staff during a candidate election, given the SU’s duties to its members, to charity law, and to the integrity of the democratic process? Reasonable people will land differently, but the Article 10(2) justification is in the analysis rather than bolted on afterwards.

That footpath metaphor does the heavy lifting in Saha’s piece. Note the word he himself uses – “reasonably kept open.” What makes it reasonable to keep the path open? The answer involves cost, risk, competing demands, alternatives, other duties.

The balancing he wants to confine to a separate “Step 3” is already smuggled inside the supposedly prior question. Press it and it collapses into a single inquiry about reasonableness – which is exactly what the judge said.

A footpath, in any event, is a binary object – open or shut. Speech isn’t. It can be facilitated, contextualised, timed, secured, accompanied by counter-speech, or held in different venues.

Calling something a “step that protects” or a “step that interferes” is a normative judgment that depends on what the realistic alternatives are. Saha needs the categorisation to be obvious so that his two-step framework has analytical bite. It isn’t.

The phrase “reasonably practicable” has a settled meaning in English law. It comes loaded from health and safety statutes and public law, and it has always involved a balancing of competing demands.

An institution is not required to take a step that would be grossly disproportionate to the benefit. That is, in substance, a proportionality test under another name.

OfS’s own Regulatory Advice 24, perhaps inadvertently, builds the same balancing logic into Step 2 – which is why the judge’s observation that the two questions involve the same factual analysis isn’t sloppy reasoning – it’s analytically honest.

What the Ministers actually said

Don’t take my word for it. Throughout the Bill’s passage, ministers in both Houses repeatedly told Parliament that “reasonably practicable” was meant to do the work of balancing that the absolutists now want to shunt off into Step 3.

In Lords Grand Committee on 31 October 2022, Earl Howe, the Bill’s Minister in the Lords, said in terms that the “reasonably practicable” wording “means that providers can take account of all their legal duties on a case-by-case basis” and that “if another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.”

Then, rejecting a strengthened test that would have removed exceptions, he warned it would prevent providers taking account of “all the relevant circumstances, including their other legal duties – for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty.”

And then this:

…there may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful.

The Minister is saying that even lawful speech can fall outside what is reasonably practicable to secure – precisely because of other duties.

The point was made repeatedly. On 2 November 2022 Earl Howe added that the “particular regard” requirement “could, in a particular case, prompt a provider to prioritise freedom of speech over another right” – but only “subject to its assessment of what is reasonably practicable” and only if “lawful.”

Baroness Falkner, then chair of the Equality and Human Rights Commission, observed in the same debate that universities must take account of Section 43 of the Equality Act, Article 10 of the Human Rights Act, charity law and the Prevent duty, and that “balancing is therefore a necessary task that they must do.”

Lord Smith of Finsbury warned against any drafting that would imply free speech should “trump everything else in all circumstances” – the government accepted his view.

In the Commons, Michelle Donelan, then universities minister, told the Public Bill Committee that “particular regard” is “intended to shift the dial in the balancing act” – not to remove the balancing. It “does not mean that freedom of speech must always outweigh other considerations.”

Later in committee she said it “would not be reasonably practicable for a provider or student union to act in a way that meant it was in breach of its other legal duties.”

This is Pepper v Hart material. Where the language of an Act is ambiguous, clear ministerial statements during a Bill’s passage can be used by courts to interpret it. The statements above are hardly ambiguous – they are from the responsible Ministers. They support the judge’s reading. They directly contradict Saha’s and that of the Office for Students.

RA24 is not the Act

The other thing that the absolutists are claiming is that Step 2 of RA24 provides protection that extends “beyond” what Article 10(2) actually requires. Their case is that OfS, through guidance, has manufactured a free speech protection stronger than the Convention right.

They’re claiming that because HEFoSA requires universities to take “reasonably practicable steps” with “particular regard” to free speech.

But everyone involved in passing the Bill – Ministers, peers, the EHRC chair, expert legal witnesses – told Parliament that this language meant a case-by-case balancing exercise against other duties. It is not language that grants a super-Convention right.

If RA24 has built one anyway, it isn’t faithfully implementing the statute. It is going further than the statute, by means of regulatory guidance. A High Court judge pushing back against that overreach is not generating “confusion.” She is reminding the regulator that HEFoSA is a balancing statute, not an absolutist one.

What now?

Since the judgment was handed down on 29 April, official silence has been the order of the day from the Department for Education.

But the King’s Speech is expected to allocate time for legislation that will partially repeal HEFoSA – formalising the repeal of the statutory tort and the direct regulation of students’ unions, and amending the complaints scheme so that students will route their concerns through the Office of the Independent Adjudicator rather than the OfS.

That matters for the Sussex aftermath. The Bill provides a natural occasion for peers to revisit, in the light of the judgment, exactly the balancing question the absolutists have been writing about – and the government may well need to clarify where it’s at as a result.

Doubtless the absolutists will find friends that will push for amendments. But without pulling out of the European Convention on Human Rights and repealing the Human Rights Act, what they want can’t be done. And I can’t see Labour agreeing to that.