David Kernohan is an Associate Editor of Wonkhe

The Westminster government has finally published its long-awaited policy paper on free speech and academic freedom in universities.

If you’re here looking for red-hot sarcastic takes, we have bad news. Most of the 15,000 words (insert comparison to the response to TEF or the interim Augar response here) and the accompanying press release is really a summary of previous interventions from think tanks, commentators, dodgy “research” from campaign groups, MPs and government ministers.

As such you can find plenty of that sort of analysis from when these things have been first mooted on the site via the free speech tag.

Here we’ve looked at the actual proposals – and focussed on answering three questions. How much of this is new or necessary? Will the proposals do what ministers say they want them to do? And what does this tell us about the ongoing relationship between the Department for Education (DfE), its higher education regulator and universities?

1. Legislate for a Free Speech and Academic Freedom Champion to be appointed as a member of the OfS board with responsibility to champion free speech and investigate alleged breaches of registration conditions related to freedom of speech and academic freedom

This first recommendation has attracted the most commentary. It’s basically a ministerial appointment to the OfS board, with a similarly special status to the Director for Fair Access and Participation. It’s what the Mail called the “woke warden”.

The Free Speech and Academic Freedom Champion (FSaAFC) would monitor existing conditions of registration (conditions E1 and E2) and could impose the familiar list of OfS sanctions – including fines. It would be an ombuds-style role, demarcated from the role of the Office of the Independent Adjudicator by dint of having ownership of all cases relevant to free speech.

OIA has concerns about these plans, suggesting that a separate route for free speech complaints could create confusion for students. It notes:

In our experience, student complaints that involve freedom of speech usually also involve other aspects, for example issues regarding academic research, or disciplinary or fitness to practise, and may involve professional standards. It’s important that these complaints are reviewed holistically.”

DfE also notes that OfS does not have the power to investigate individual complaints. We’re pretty sure it can do so where it feels the need to, via the notification system. The FSaAFC would be expected to respond quickly as issues are made public.

The proposals are also not clear regarding whether the OfS’ standard criteria for intervention would apply to FSaAFC interventions. Paragraph 166 of the OfS Regulatory Framework sets out the following criteria:

  • Prioritised: the OfS will focus on matters that pose a risk of harm, especially to the interests of students or taxpayers.
  • Proportionate: the OfS will take all the relevant circumstances into account and take action which is proportionate to the severity of the risk or breach, the culpability and behaviour of the provider, and the impact on students.
  • Targeted: the OfS will take action to address the particular risks that are posed by the provider.
  • Transparent: the OfS will clearly set out the intervention process, the action it is taking and the reasons for this. For entry and search, and specific ongoing conditions and sanctions, this will be as described in the relevant provisions of HERA and should include a provider’s right to appeal. As set out above, in the section on the Register, the OfS will publish information about interventions for an individual provider.
  • Accountable: the OfS will be accountable for the decisions

A list of intervention factors (para 167) requires OfS to take into account the actual or likely impact of a breach, and the impact of both the breach and proposed intervention on students. The type of intervention should also be determined by the provider’s cooperation and behaviour, and by the historic behaviour of that provider.

It is difficult to see how the diligent application of these principles would lead to widespread fines for the kind of free speech issues that show up in the press. It’s almost as if the regulator simply isn’t designed to operate on the basis of individual incidents and cases.

But more broadly, it is difficult to see how one would – in practical terms – demarcate a complaint about harassment from one about freedom of speech (particularly given the likes of Spiked! argue that harassment policies, in general, are free speech crackdowns).

2. Legislate to require a new OfS registration condition on free speech and academic freedom

The second substantive proposal is that the champion would be supported by a new OfS registration condition on free speech and academic freedom.

Those familiar with OfS’ regulatory framework might well ask why? Currently, Condition E1 of the framework (on Public Interest Governance) requires universities to reflect a set of principles, and provide a suitable framework to ensure that relevant steps to comply with those principles are “identified, defined, taken, and can be shown to have been taken”.

One of the current principles is on 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.

And another is on 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.

Apparently, despite this, the creation of a new condition would make the obligation on providers to ensure freedom of speech and academic freedom “clearer and more upfront”, would “emphasise the significance of freedom of speech requirements”, and set out that this responsibility “goes beyond maintaining free speech codes of practice and includes the expectation that HEPs must actively promote freedom of speech on campus”.

Whether taking two principles in a current duty and making them into a separate duty in a framework that few outside of Nicholson House, AHUA and Wonkhe team meetings have ever read would really have the effect DfE thinks it would have is an open question. What’s perhaps more interesting is the discussions that presumably have been going on behind the scenes.

In a board paper in September 2018, OfS said that it had:

…not received any evidence to demonstrate that providers are not using best efforts to tackle this problem on campus and to keep debate as civil as possible.

And it’s not as if it didn’t do its homework:

We obtained and examined a range of material concerning free speech through public interest disclosure, press office inquiries, as well as the Prevent data. Thousands of events take place on campus every year; there are only issues at a few but, when these issues arise, they usually gain substantial media coverage and such media coverage propagates myths.”

Overall it concluded that:

We have found no evidence of free speech being systematically suppressed. Our experience to date is that providers are working hard to be compliant with their duty under section 43 of the 1986 Education Act.

That raises an interesting question. What if the OfS board reaches a similar conclusion this year? The champion role might end up being the easiest job in the world unless duties involve telling ministers the difficult news that there isn’t the problem they say there is.

In that paper, OfS also proposed:

An interactive event to bring senior staff leaders in the sector, Students’ Union executives and others together to showcase projects and initiatives that are tackling these challenges. The event would also include knowledge sharing sessions as well as the opportunity for attendees to raise and discuss pressing issues with peers from across the sector… such an event would also raise awareness of the difficulties providers and Students’ Unions face in upholding free speech as well as some of the solutions which have been developed. The event would encourage better understanding of the regulatory landscape so that complainants were able to direct their complaints more appropriately.”

That sounds like a good idea, although it never happened. And if the October 2020 business plan commitment to “start a conversation with students, providers and others on our emerging regulatory approach to freedom of speech and academic freedom” has started, we don’t know about it either.

Nor have we seen promised “regulatory guidance on the public interest governance principles relating to academic freedom and free speech, because these principles underpin high-quality higher education”, which it promised last July.

As such one way to read much of today’s paper is a large moan at OfS progress on the issue. But what if OfS’ board continues to disagree that it is an issue at all?

3. Explore further the option of strengthening the section 43 duty to include a duty on HEPs to ‘actively promote’ freedom of speech

Next up is a “strengthening” of the current 1986 act duty to:

…take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

First, it proposes that the duty becomes to “actively promote” freedom of speech within the law. Potato potato, but in any event surely OfS could just write this into its expectations. And how would a sanction work? “Dear VC, you’ve not quite been active enough…”

Suggestions include making positive public statements reasserting the importance of free speech and academic freedom, or a transparent and fair approach to charging for security costs at events. Given the Education Act 1986’s focus on external speakers, it also suggests that the duty be explicitly extended to students, staff or employees not being subject to a detriment (such as losing their position or having rights or privileges removed) because they have exercised their right to free speech within the law.

We do have to be super careful with that last one. There is no doubt that universities and their SUs establish codes of conduct that govern the behaviour of students and staff that sometimes go beyond the law.

Too much of the Spiked! (and latterly Civitas) critique of university free speech has, for example, suggested that anti-harassment policies in universities are an example of cracking down on “lawful” freedom of expression – but we can think of plenty of examples of areas where a student or staff member whose behaviours are obviously unacceptable might be doing something that’s otherwise technically lawful.

4. Legislate to extend the strengthened section 43 duty to cover SUs directly

Just like the proposals for the Free Speech and Academic Freedom Champion, this one’s a little messy. Right now the Section 43 duty applies to any “premises” occupied by an SU, even if they are not owned by the provider. The problem is that even if we put aside that the idea of “premises” is now outdated, the duty lies on “individuals and bodies of persons concerned in the governance” of the university – it does not lie directly on those who govern students’ unions.

The earlier analysis figures that this is a problem because students have apparently had to “resort to legal action” to ensure they were not excluded from activities or premises by their SU because of the expression of their views. We’re not sure what this is referring to, although we’re guessing it may refer to a handful of cases where SU officers have initially refused to affiliate or accept the creation of pro life societies, which is a related, important, but different issue already covered by charity law and the Education Act 1994.

Nevertheless, the theory is that extending the section 43 duty to those responsible for SUs means that SUs would themselves be directly responsible for taking reasonably practicable steps to ensure that lawful freedom of speech is secured, as providers are now. The question is who would enforce this duty, and how?

Unlike (most) universities, students’ unions are directly regulated by the Charity Commission, and the paper notes that back in 2018, the JCHR raised concerns that the commission’s approach in regulating its charities “does not adequately reflect the important role SUs play in educating students through activism and debate”.

That JCHR report recommended extending the remit of OfS to include the regulation of SUs, and the major proposal here is that this is a recommendation the government “can now support”. Sort of.

Right now, higher education providers in England and Wales which are charities are subject to charity law, but the Charities Act 2011 provides for some charities to be primarily regulated on charity law purposes by a regulator that is not the Charity Commission – although the Charity Commission retains some regulatory functions.

So in a difficult couple of paragraphs, the proposal is that SUs would remain charities and governed by charity law in the same way, but OfS would become their “principal regulator” in relation to free speech.

The problem is that this wouldn’t really work in the way that DfE appears to think it would. There’s a very specific meaning of “principal regulator” in the Charities Act:

The body or Minister must do all that the body or Minister reasonably can to meet the compliance objective in relation to the charity…. the compliance objective is to promote compliance by the charity trustees with their legal obligations in exercising control and management of the administration of the charity.

What you don’t appear to be able to do is just pick a particular function – which is only related to charity law – and ask a separate regulator, which otherwise has no other powers to regulate students’ unions, to become the principal regulator.

What you could do is apply major surgery to the Office for Students – ask it to create a register of students’ unions, for example – and give it full powers. But as it stands this proposal doesn’t look workable.

Even if we were able to combine the concepts of “partial” with “principal”, we don’t know what would happen if the Charity Commission was to disagree with the Office for Students. Let’s not forget that the commission has said that:

there may be instances when it is necessary for the [students’ union] trustees to curtail freedom of speech if they are put on notice that speakers at events within their control may infringe the rights of others, or discriminate against a protected group.

There is, by the way, a much smarter and less legally chaotic way to knit together current OfS duties with autonomous SUs – it’s set out in detail on pages 30-33 of the free speech report we supported a group of SUs to develop recently.

5. Set clear minimum standards for the code of practice required under section 43

Since 1986 there’s been a duty on providers to “issue and keep up to date” a code of practice setting out the procedures to be followed by students and staff in connection with the free speech duty.

The variability, relative complexity and the worry that such complexity might put people off from organising an event (or be used to ban events by the back door) was a favourite concern of Sam Gyimah – and it reappears here in the form of the government “mandating clearer minimum standards” for the codes of practice.

As such there are references to “the spirit of statements such as the Chicago Principles”, a recognition of “a wide range of good examples of free speech codes” across providers and a keenness that government (not OfS) to work with providers to “build upon these high standards” and ensure “clarity and consistency” across the sector.

The good news is that as well as a group of students’ unions setting out a model code for their own events recently, we hear that Universities UK is also working on one something from its end. DfE itself has some suggestions at Annex B.

6. Introduce a statutory tort that would give private individuals a right of redress for loss as a result of a breach of section 43

If a student is expelled or a member of staff dismissed because of something they say or do, there are a number of redresses available. The simplest would be a breach of contract – most academic contracts have an academic freedom clause. Staff and students could argue a policy on, say, harassment, or hate speech, or bringing the university into disrepute has been unfairly applied, or that the policy itself is unfair. There would be redress available via an employment tribunal or via the measures within the Equality Act 2010.

On this basis, the need for a new statutory tort linked to section 43 of the 1986 Education (no 2) Act is unclear. The proposals argue it would also apply to individuals not covered by contracts or other legislation – noting in particular visiting speakers and those that do not have employment rights. The proposed tort would:

…would have the combined aim of both compensating individuals for any loss suffered, as well as giving teeth to the section 43 duty and ensuring that HEPs and SUs take their legal responsibilities seriously.”

This would mean that, for example, organisers of an event that is cancelled could be reimbursed for incurred costs, and that a monetary value could be put on the reputational damage and/or mental anguish suffered by speakers who have been disinvited or “no platformed”.

7. Wider and enhanced academic freedom contractual protections

The limitations of the statutory tort are made clear by a parallel desire to increase contractual protections for academic freedom. Here we are reminded of the clause that exists in most modern university contracts:

Notwithstanding the above (the institution) affirms that academic staff 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 and privileges they have at (the institution).”

Similar language can also be found in university charters, statutes, and articles of government. You’d think this is a pretty solid level of protection, but DfE is concerned that these terms may not be clear in all cases, and that there are no contractual protections for staff not employed directly by a provider (the example of a visiting fellow is given, a more common one could be academic or academic-related staff employed by an agency or subcontractor).

There is a desire to extend these protections to cover recruitment and promotion of staff – in a similar way to the protections in the Equality Act 2010 cover recruitment decisions pertaining to staff with specific protected characteristics. One group of staff who have frequently seen discrimination on the grounds of political views is trade union members, and it is good to see DfE stepping up to secure additional rights for your hardworking UCU representative. As the proposal puts it:

a climate where individual staff members are fearful regarding their employment status and progression leads to self-censorship and an environment where open debate is stifled.”

So academic staff should not feel as if they are putting their career at risk by taking part in trade union endorsed activity. Debates about university management practices, pay, pensions, and terms and conditions of employment should no longer be stifled by fears about employment status or progression – and the new measure would extend existing protections to some of the most precarious staff in higher education.

What is good practice?

Annex B gives a number of examples of what DfE considers good practice regarding behaviours to support and promote free speech. Here are some of our favourites:

The HEP’s code of practice on free speech does not actively limit free speech, for example by requiring ‘respect’ rather than ‘tolerance’ for all viewpoints”

a disciplinary code which refers to ‘offensive speech’ or to ‘bringing the [HEP] into disrepute’ without reference to the right to free speech may act to inhibit free speech or academic freedom that is within the law”

The HEP’s internal HR policies should not assume a purely subjective definition of offence or harm when considering matters such as dignity, conduct or harassment. In other words, an action is not offensive simply because a person claims that they have found it to be so.”

These appear to be setting up the free speech duty as something that trumps duties on harassment (except of course, as protected by the Equality Act 2010) or dignity at work. Whereas where requirements conflict it is necessary to balance both, this should really be done on a case-by-case basis rather than as a blanket stipulation. DfE is really, at heart, making this same point – the skew towards free speech is unfortunate in this respect. Here, for clarity, is the Equality Act definition of “harassment”:

unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”

If a person reports that the actions of another have made them feel intimidated, degraded, or humiliated it should not be the place of a university to refuse to account for these experiences. People will only call this stuff out (which is the only way we will ever get better at providing a safe and non-threatening working environment) if they feel what they say would be believed.

The HEP should not interfere with academic freedom by imposing, or seeking to impose, a political or ideological viewpoint upon the teaching, research or other activities of individual academics, either across the whole HEP or at department, faculty or other level. For example, a head of faculty should not force or pressure academics to teach from a their own ideological viewpoint, or to only use set texts that comply with their own viewpoint. This applies equally to contested political ideologies that are not associated with a particular political party or view, such as ‘decolonising the curriculum “

This one just seems to be in ignorance of the way higher education courses are developed as a cohesive whole, with module outcomes articulated to course outcomes (often via professional requirements). Most academic courses do cover a variety of viewpoints, though a basic conversance with what would be considered the mainstream of academic opinion (for example, what is in the QAA Subject Benchmark Statement) is expected.

There’s nothing to stop an economics course ignoring the whole gamut of heterodox economics, but a good one should at least cover the main critiques of common positions.

We’re also misrepresenting decolonisation here, which is much more a matter of a critical reflection on what is being covered and why – something that you may argue should be happening as a matter of course.

How to not respond to this consultation

Despite the language of consultation and discussion being used throughout this document, it is not a consultation as defined by the 2018 Guidance on Consultation Principles published by the Cabinet Office. So there is no timetable for consultation, no deadline or mechanism for the submission of comments, and no commitment to publish responses in the interests of transparency.

If the ongoing development of policy in this area is being informed by the old “smoke-filled room” collection of sector views, it is something of a surprise that the document has been published before an agreement with key stakeholders has been reached behind the scenes. Certainly, presenting the policy as a fait accompli would mean that there would be no indications of further discussion.

Overall, what’s fascinating about the proposals is the extent to which they represent a mixture – of the pre-existing (the powers OfS already has to set standards in this area, and fine if it sees them ignored) and the ultimately unworkable (the partial ombudsperson and the partial students’ union regulator).

As we note above, there are neater and cleverer (yet still robust) ways to address some of these issues – some are in the work we helped convene for SUs, others involve (for example) being clearer about the careful line we necessarily need to draw between protest and harassment.

What this would represent – in the unlikely event that it progresses through to legislation intact – would be the most dramatically interventionist set of powers for a government regulator into the currently self-governing affairs of universities we’ve ever seen.

It represents a breakdown of trust – between DfE and universities, between DfE and the Office for Students and between the Office for Students and just about everyone else. And if you believe that the government should be concentrating on more important matters right now, as it gives itself such specifically invasive powers over the sector, you might ask why it is doing so to intervene in the culture wars rather than the wide range of things students actually say they care about.

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