OfS u-turns on free speech guidance

Well here’s a thing.

When both the Lords and the Commons were debating the Higher Education (Freedom of Speech) Act 2023, ministers repeatedly responded to concerns expressed by members of both houses by assuring them that “OfS guidance” would cover all sorts of things.

This was especially important for SUs given the relative lack of resource and access to expertise and their tendency to attract the most complex issues, despite the duties on universities and SUs being pretty much identical.

Hence then universities minister Michalle Donelan said:

I expect that the new director for freedom of speech and academic freedom will issue comprehensive guidance to the sector on the expectations of the Office for Students.

and said:

The right hon. Gentleman can be assured that I work very closely with the Office for Students and intend to continue to do so in the formulation of the guidance. It is important that that guidance is robust and comprehensive and that it enables both universities and student unions to know exactly how to work with the legislation.

and said:

The new director will produce extensive guidance to assist universities, further to the points made by hon. Members. That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights.

Earl Howe said:

…we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties.

and said:

all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

and said:

we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.

and said:

There have been occasions when the Equality Act has been misinterpreted by providers—for example, as to whether the conduct is harassment—but the Office for Students will publish guidance to help bodies under this Act understand their duties and apply them.

And Arif Ahmed, before he’d been appointed to be in charge of the whole shebang, said:

With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts.

You get the point. Basically any time anyone raised anything tricky, the message was – guidance is coming.

As a result the act amended the Higher Education and Research Act 2017 to include:

Guidance under subsection (3)(c) must include guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6.

(7B)The guidance under subsection (3)(c) may in particular specify—

(a)what the OfS considers students’ unions need to do to comply with their duties under sections A5 and A6;

(b)factors which the OfS will take into account in determining, for the purposes of section 69B, whether or not a students’ union is complying with its duties under those sections.

But then when the consultation on how OfS will regulate SUs dropped in December, an entirely different tone emerged.

There’s some bare bones stuff in there, but on the stuff might actually be helpful, it said it had considered whether to provide more detailed guidance on individual elements of the free speech duties, but had “decided not to do so at this stage”, for the following reasons:

  • In monitoring relevant students’ unions’ compliance with their free speech duties, the OfS will undertake a quasi-judicial role. The OfS will be required to determine each individual case on its own facts. Given that role, we consider that it would not be appropriate to provide generic guidance on specific subject matters, or in relation to specific policies or definitions that relevant students’ unions may have adopted. Doing so may risk prejudging our determination of cases in the future which concern those subject matters or those policies or definitions.
  • A diverse range of organisations may fall within the definition of ‘relevant students’ union’. The definition may include incorporated bodies and unincorporated bodies, with membership ranging from a small number of students to several thousand students. It will be important that our approach is appropriately sensitive to this diversity. As the OfS develops its approach to regulation in this area, we will continue to consider what form of further guidance, if any, may be suitable.
  • The free speech duties are newly extended to relevant students’ unions. The development of any guidance should be informed by the OfS’s actual experience of monitoring relevant students’ unions. Through our role we may identify recurring issues on which it would be appropriate for the OfS to publish guidance.

This, inevitably has led to a couple of car crash consultation events with SUs where the regulator has been unable to answer perfectly reasonable questions about its expectations – especially over the “balancing” duties that apply to SUs and universities, its definitions of various things and the boundaries of the term “free speech within the law”.

There, the message tended to be – complaints will come in and you’ll be able to learn from them.

Well, now it’s changed its mind.

In a blogpost entitled “updates on OfS work to implement new free speech legislation”, Arif Ahmend now says that OfS will, “in the coming weeks”, launch a further freedom of speech consultation that will cover proposed guidance for universities, colleges and relevant students’ unions on securing free speech within the law and on publishing and maintaining a freedom of speech code of practice.

That sounds like a similar approach to the one OfS uses over Access and Participation – where there’s a formal document called “guidance”, and another one called “advice”.

There’s also going to be a consultation on proposed revisions to OfS’s regulatory framework to make reference to its new free speech functions, and another one on its proposed approach to the recovery of costs in connection with its regulation in this area.

What’s not yet clear is whether the guidance will address any relationship with its indefinitely delayed response to its consultation on harassment and sexual misconduct, whether these new consultations will emerge before the close of the current two, which questions and issues it will address, and whether the results of its new consultations will be out in time to reflect and act on them before the August 1st “opening” of its new complaints scheme.

Nor is it clear whether OfS will change the habit of a lifetime and listen to anything fed in.

But it’s a start.

One response to “OfS u-turns on free speech guidance

  1. I’m currently looking on Indeed to see what else I could be doing.

    I’m an experienced caseworker that amongst other things gets tasked with investigating the reports of transphobia, antisemitism, and general bigotry that get reported to us.

    A difficult caseload but all the more difficult with the move from technocratic sector regulation (from the OIA) to more politicised regulation (from the OfS). Any student subject to investigation by me can now turn the tables:

    Me: I’m investigating you for comments about Gaza that invoked anti-Semitic tropes. I appreciate your strong views, but can you see why the comments were problematic?

    Student: Erm…no…the OfS will now investigate *you* for your breach of my freedom of speech. I’ve just cc’ed your senior management team with the subject ‘OfS Breach’.

Leave a Reply