News that the government has paused the implementation of duties under the Higher Education (Freedom of Speech) Act will no doubt be greeted with a sigh of relief by the higher education sector (and indeed higher education lawyers!).
The consultations undertaken by the Office for Students earlier this year revealed just how complex and burdensome compliance with, and regulation of, those duties was likely to be, and just how many unintended consequences might flow from them. There was a very real risk that compliance with these duties could become the “goldfish that drank the bowl”, so all-encompassing were some of the apparent expectations.
The draft guidance provided by the OfS was in many respects unrealistic and served to confuse and confound rather than to illuminate what sensible and proportionate compliance might look like. There were a considerable number of areas that were likely to lead to legal challenges to the OfS’s approach and there was a risk that the sector would become bogged down in complaints and claims of varying degrees of merit. So, many will understandably celebrate the temporary incapacitation, if not the demise, of the proposed new regime.
Alongside relief, though, there will also be frustration at the huge amount of work, now ostensibly wasted, that the sector has undertaken to try to get on top of this area. But does all this work really need to have been in vain?
An opportunity to solve problems
There are four reasons why institutions could, and arguably should, continue to take the opportunity to get on to the front foot in response to criticism that they are not adequately protecting free speech and academic freedom on campus:
The existing legal framework (a combination of the European Convention on Human Rights, the Human Rights Act and the Education (No 2) Act 1986) includes obligations to protect and facilitate freedom of expression, including academic freedom. The work the sector has been doing in readiness for the new duties may have highlighted areas where compliance with these existing duties could be improved, and those should be addressed as part of prudent risk management. In addition, a growing number of what might otherwise be “free speech” challenges are being pursued as protected belief discrimination claims and these are likely to continue. Ensuring that the widest possible variety of lawful views can be expressed and debated in a respectful and tolerant manner on campus will be necessary to be able to defend allegations of discrimination and harassment in such claims.
The existing regulatory framework includes public interest governance principles relating to both freedom of speech and academic freedom and upholding these forms part of the management and governance registration conditions. In December 2022 the OfS published an Insight Brief setting out its expectations of what good compliance looks like in this area and indicating how it intended to regulate under the existing regulatory framework. This Brief contained what were, in themselves, extensive requirements. Unless withdrawn, this presumably continues to represent the OfS position, and institutions may therefore be at regulatory risk if they do not comply with these expectations in a proportionate and risk-based way.
While the threat posed by the new free speech legislation may have receded, it is unlikely that the free speech campus wars will disappear. The range and number of hotly contested issues is unlikely to diminish, nor will the toxic nature of some of the debate and therefore the expectations of different groups that the institution should intervene to protect them. Unless institutions take proactive steps to create a culture where there is shared acceptance of the importance of diversity (including viewpoint diversity), freedom of enquiry, mutual respect, and effective disagreement and challenge, there will continue to be difficult, time-consuming and costly flashpoints to manage.
And every institution recognises that freedom of enquiry, freedom of speech and academic freedom are foundational values of higher education. But values do not just exist because we state them to be so. They need to be embedded, nurtured and lived. Alongside other values such as equality, diversity, inclusion, social value and justice, institutions should take active steps around freedom of expression because it forms part of their DNA and is the right thing to do.
Command and control
There is one more reason why institutions should ensure they build on the work that they have already been doing in this area: failing to do so now will, sooner or later, cede control of the area back to those who advocate for the strictest, most intrusive forms of control and scrutiny of institutions, which could result in even worse regulation in the future.
As autonomous institutions, universities, colleges and independent providers now have the opportunity to avoid that, and they should take it.
