Justice Lieven’s judgment in the University of Sussex’s successful judicial review of OfS will have a material impact on the regulatory landscape – and it’s in everyone’s interests to find the right balance.
As Ruth Hannant and Polly Payne take up their roles as OfS chief executive, what changes might they be considering to how OfS approaches regulation? There are two areas in which we may see change in the regulatory culture. The first arises from the technicalities of the ruling around OfS’ interpretation of free speech. This will be of significance to anyone concerned about the practicalities of implementing the Higher Education (Freedom of Speech) Act and the challenges of balancing duties around free speech and academic freedom with other legal duties. The second concerns the approach that OfS will take to future regulatory investigations, and is likely to be of interest to all who engage with OfS.
Balance is restored
The ruling made it clear that when making decisions about free speech issues, higher education institutions are entitled to place restrictions on speech that is lawful. The judge first confirmed that “unlawful speech” would include speech that is unlawful under the common law (eg defamation or breach of confidence) and not just that which is prohibited by legislation. She then noted that OfS had agreed with the university’s argument that there may be occasions when it would be legitimate to prevent lawful speech. The question was then how higher education institutions should approach the issue.
The judge held that the question of whether a HE institution could interfere with lawful free speech involved considering two points under the same factual analysis. One point is whether there are any reasonably practicable steps that could be taken to protect (or allow) the free speech. The other is whether the interference is proportionate. The judge observed that these two points will rest on the same facts and therefore, in practice, usually fall to be considered at the same time.
This clarification is likely to prove very helpful in implementing the free speech complaints scheme, which will come into force from September this year. While the principle of proportionality was already well established in case law, it was not given significant emphasis in OfS’ approach to the impact that the university’s transgender policy statement had on free speech, which tended towards, in Justice Lieven’s words, a more “absolutist” approach.
While the Sussex case was not about Regulatory Advice 24 (often called OfS’ guidance on free speech and academic freedom), our view is that it is clear that OfS should now revise that advice. In the light of Ms Justice Lieven’s rulings, the “three-step framework” as set out in the advice is not helpful to higher education institutions grappling with the issue, and is arguably wrong. HE providers would find it helpful if the advice provided explicit examples of the range of factors that OfS accepts might be under consideration when free speech issues arise, and of proportionate actions that might reasonably be taken to manage the various risks arising. Almost regardless of what the regulatory advice says, we would also expect the principles set out in the Sussex case to be applied when OfS makes decisions under the complaints scheme and in the forthcoming consultation on a new condition of registration on free speech.
The Sussex decision does not itself mean that institutions need to revise documents and policies – the rules around free speech and academic freedom remain unaffected. There’s a lesson to take away about document management and record-keeping – ensuring policies remain up to date, that old versions are removed from websites and intranets, and that the interaction between different policies are clearly mapped. The other important lesson is about making sure, first, that you are following your own policies and procedures and second, that decisions are being made – and documented – by someone who has the authority to make them. We consider it will also be important for those who make the every-day decisions in this area to receive training in such decision making. These steps, as well as being good practice in achieving a considered and balanced approach to complex decisions, should offer a measure of protection in the event of serious regulatory intervention.
Implications for regulatory culture
The ruling in this case extends, however, well beyond the domain of free speech and academic freedom – and speaks directly to the culture of regulation. The ruling changes, in a sense, the power dynamic between regulator and regulated. And while it’s important that OfS is held to account for poor regulatory behaviour, it’s not in the long term interests of the HE sector for the regulator to be weakened, and fearing legal reprisals every time it issues a judgement.
The particular area that came up for scrutiny was in OfS’ approach to conducting the investigation. Justice Lieven’s view was that, having singled out the University of Sussex as a test case, OfS pursued its investigation well beyond the natural conclusion of the university having addressed the issue identified. The evidence in the case showed that the goal was never solely to address the specific identified instance of a free speech issue at one university but to send a message to the wider sector – as such OfS had a “closed mind” when it came to investigating the case.
It is to be hoped that the OfS notes the judge’s comments and makes changes to its approach to regulatory investigations and reports: moving away from proving a fixed idea and focusing on what the institution is doing wrong, to a more balanced approach of investigating issues fairly and reflecting good practice as well as poor practice.
The sector may not be best pleased to discover that the judge considered the pursuit of a test case to be a legitimate approach – though it’s tough on an institution whose practice is not measurably out of step with others in the sector to have to carry the burden of regulatory investigation alone. The issue is about whether, having identified a potential test case, the regulator does not permit the test to, as it were, fail.
The ruling notes in passing the passage of time between the opening of the case and its conclusion, as well as the apparent paucity of communication between the parties. None of this is helpful – all those months represent resource, leadership bandwidth, and emotional energy on both sides, that could better have been expended on matters of greater significance.
It’s worth rehearsing, though, that there is no question that OfS is entitled to conduct an investigation on any subject falling within the regulatory framework. The sector needs a regulator that can identify issues, investigate these efficiently and professionally, and reach conclusions that best serve the student (and public) interest. That in itself involves a complex balancing act, but in at least some cases it will likely involve an institution agreeing that it is at fault and fixing the problem without fanfare.
Enhancement through consent
The ruling opens up a question about what a more productive approach might be in cases where OfS believes it has identified a systemic issue – grade inflation is a relevant example here, in which OfS, clearly concerned that publishing the data annually has had an insufficient effect on practice, chose to pursue investigations over four individual institutions’ degree algorithms.
If OfS were to develop interventions short of full investigation that made all the potentially affected institutions aware they were in the frame for a possible future investigation, those institutions could be given the opportunity to give an initial rationale and evidence to OfS without the pressure of being “under investigation.” Any institution failing to engage would automatically become a priority for investigation – and those that did could learn from the exercise, either identifying a need for change, or, equally, deciding to carry on as before, but with the evidence to back it up.
The premise here is that it’s not, arguably, OfS’ job to decide whether a particular approach is acceptable, but to establish that the institution is competent to decide these matters for itself. It is also, arguably, appropriate for institutions to take seriously the views of the regulator and treat this as part of the evidence base for the action it decides to take, given OfS has an overview of the whole sector. A more proportionate, evidence-informed approach from OfS would give the sector greater confidence in its views because these would be developed with the aim of persuading rather than enforcing.
Ultimately, regulatory strength comes less from a show of force than from securing the consent of the regulated. In a highly diverse sector all high quality providers benefit not only from having a regulator that is activist in its pursuit of low quality, risks to student interest and public money, but one that is able to articulate systemic risks in ways that leave space for institutions to take action from their own conviction rather than because of a regulatory rap on the knuckles.
This article is published as part of a partnership with Mills & Reeve. Join a trial HE Counsel – a newsletter about everything law, governance and policy in higher education.
