OfS parks its regulatory tanks on the lawn over campus encampments

It’s a letter that’s both about tackling harassment and securing freedom of speech – it’s helpfully acknowledging of the potential tensions therein, and designed to be indicative of how the regulator will think through issues where there is a tension.

The first bit reminds us that we have two things coming – plans for future regulation of universities over their approach to harassment, and plans to implement regulation on universities and SUs over freedom of speech.

We are assured that:

…we want to avoid imposing obligations on institutions to prevent harassment that conflict with their new free speech duties.

…and so work has been going on to ensure that the two duties are compatible.

We’re then reminded of both ends of the campus culture see-saw – providers should continue to ensure the physical safety of all students and staff on campus, should also uphold free speech within the law for students, staff and visiting speakers, and that this and cannot include discrimination against, or harassment of, Jewish students or staff, or any other conduct prohibited by law.

Within these limits, universities and colleges (and, in time, SUs) are reminded to take reasonably practicable steps to secure freedom of speech within the law for students, staff and visiting speakers – including making provision for a wide range of lawfully expressible ideas and opinions, and for peaceful protest.

Responding to issues raised by VCs at Number 10 last week, he also says that this duty “does not extend to individuals who may have joined a protest on the grounds of a university or college but have no other relation to that institution”.

Unless, presumably, they’ve been invited to speak at the protest by any of the protestors, in which event OfS’ proposed definition of external speaker would give them all sorts of rights.

We then get a rehearsal of what’s to be codified in the harassment duty – the expectation is that institutions should remain vigilant to identify unlawful harassment (or other speech or expression outside the law), adhere to relevant policies and procedures in reporting unlawful harassment (and other potentially unlawful conduct) to the police and other relevant authorities as a matter of urgency where appropriate, take timely and appropriate action (again in accordance with agreed policies and procedures) to support students or staff affected by unlawful conduct, and in the context of unlawful harassment, have in place clear policies so that students and staff understand how they can raise issues, and how they can expect these issues to be handled.

Nothing hugely controversial there in principle, although the mention of reporting to the police (albeit in relation to relevant policies and procedures) may cause some concern.

And naturally, the letter doesn’t go near the nub of controversy – disagreement about what constitutes antisemitism on the part of any protestors.

What is interesting is the use of “time, place and manner” as a device to justify interference.

The time, the place (and the manner)

Here Ahmed says that OfS recognises that for universities and colleges to manage their affairs effectively and safely, they may have to regulate the “time, place and manner of expression” where there are – the example given is where a protest may directly interfere with others’ learning, teaching or research (for instance by occupying a classroom):

In those circumstances a university or college may need to act to ensure continuity of its essential functions.

The phrase appears again when Ahmed asserts that restrictions on the “time, place and manner of expression” should not seek, in intent or effect, to restrict legally expressible viewpoints:

Nor should they be framed so broadly that they may be used to punish or suppress a legally expressible viewpoint. For instance, a requirement that protestors should not intrude into teaching spaces is suitably neutral as to the viewpoint expressed.

By contrast, a requirement that protests should not “undermine the university’s values” may suppress lawful expression of a particular range of viewpoints.

Then the phrase is used in relation to intrusion – restrictions on “time, place and manner” of lawful speech should be the least intrusive ones necessary for ensuring safety and continuity of essential functions:

For example, a student group may wish to set up, on a university lawn, an exhibition displaying flags, signs and leaflets that lawfully express viewpoints that many others find offensive. The university or college should not restrict the exhibition to a remote and inconvenient place or time, if a more suitable venue could be used temporarily and without disrupting essential functions.

A “lawn” does rather give away the university where Ahmed was an academic – but the point here is that a university can’t pull a fast one and manage conflict on campus by asking an encampment to move ‘round to where the bins are.

“Time, place and manner” is actually a confection we see at Para 43 of OfS’ proposed guidance on free speech regulation. There the proposal is that there may be some scope for limited restrictions in respect of the time, place and manner of expression, provided that there is a “compelling justification” for the restriction and it is the least intrusive of all the available options; that it does not “amount to a de facto restriction” on particular content of speech in practice; and that freedom of speech and academic freedom otherwise remain meaningful and effective rights in practice.

TPM restrictions something of a US import – so-called content-neutral limitations on First Amendment rights are accepted as being able to be set by the government (and others like universities) on expressive activities, applicable through things like noise level limits, participant caps at protests, timing of demonstrations, and sign restrictions on property.

That there is often a requirement for permits for parades and demonstrations and are generally upheld in most jurisdictions – to withstand challenges, they have to pass a three-prong test from the Supreme Court’s decision in Ward v. Rock Against Racism (1989): they must be content neutral, narrowly tailored to serve a significant governmental interest, and allow for ample alternative communication methods.

Whether it’s an appropriate framing in the UK context is one for the lawyers, who will be thinking about whether Article 10(2) of the human rights act – one of the balancing weights on Article 10(1)’s “free speech within the law” – justifies these sorts of restrictions.

Balancing acts

As such, what’s also notable about the letter is that this is one of the few times where, albeit without direct reference to Article 10(2) or other bits of the Human Rights Act, OfS is admitting that freedom of speech can be restricted where it’s otherwise lawful.

As a reminder, A10(2) makes clear that exercise of freedoms – given it carries with it duties and responsibilities – can 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.

It’s how civil servants can be gagged, for example, and the case law keeps coming on what would count – recent legal cases suggest that OfS is right about allowing students to misgender a trans person in an academic essay, but would be on much shakier ground if it stopped a university from having a policy that ruled out a staff member deliberately misgendering a trans student, for example. The recent New College Swindon employment tribunal makes frequent reference.

And given holocaust denial isn’t illegal in the UK, it’s Article 17 as a counterweight that tends to be relied on to ban it:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Maybe the commitment to ensuring that the harassment and sexual misconduct duty and the free speech duty are compatible will start to explore some of these balancing provisions for speech that is otherwise seen as protected or lawful. Maybe not.

One final aspect of the letter reminds VCs that OfS does not currently have a role in regulating students’ unions in relation to freedom of speech – but soon will – and so universities are paternalistically invited to “share and discuss these principles” with them.

That’s interesting partly because SUs are not education providers under the Equality Act, but are variously categorised either as service providers or associations by the Equality and Human Rights Commission. Either way, while the provisions in the Equality Act on direct and indirect discrimination do apply to them over religion and belief, they don’t apply in relation to harassment or victimisation.

That, coupled with the fact that SUs won’t be regulated by OfS on harassment and sexual misconduct, could make the angle of the see-saw very different for an SU considering the weigh up – something that very much should referenced in the forthcoming duty if all of this is to work sensibly on campus.