By cancelling the August implementation of the Higher Education (Freedom of Speech) Act 2023, it has been said that the Government struck a blow against free speech on campus and academic freedom. Perhaps the most significant loss was the relatively informal and cheap dispute resolution mechanism in the form of the Office for Students complaints scheme. 

The condition gives strong protection to free speech and academic freedom

This week we have had a riposte from the OfS on free speech which will provide succour to those bruised by the Government’s last minute cancellation of the Act. It has published the new general ongoing condition of registration relating to harassment and sexual misconduct. The condition gives strong protection to free speech and academic freedom.

In essence, the new condition requires providers to provide a single, comprehensive source of information which sets out policies and procedures on subject matter relating to incidents of harassment and sexual misconduct, including intimate personal relationships between staff and students. There are detailed rules on what content should be included as a minimum, as well as rules on the prominence of this source of information. These details can be found here.

Providers will need to review their harassment and sexual misconduct policies for compliance with these. Importantly, that review must take account of the detailed new free speech principles. A provider must comply with those principles at all times and the principles take precedence over everything else in the new condition. 

These free speech principles are strict and reflect the significant protection for free speech on campus and academic freedom. They are as follows:

(i) irrespective of the scope and extent of any other legal requirements that may apply to the provider, the need for the provider to have particular regard to, and place significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment, including in premises and situations where educational services, events and debates take place;

(ii) the need for the provider to apply a rebuttable presumption to the effect that students being exposed to any of the following is unlikely to amount to harassment:

(a) the content of higher education course materials, including but not limited to books, videos, sound recordings, and pictures;

(b) statements made and views expressed by a person as part of teaching, research or discussions about any subject matter which is connected with the content of a higher education course.

On (i), the purpose here is to ensure that laws which do not expressly render speech unlawful cannot be relied upon to restrict free speech on academic freedom. Examples include the public sector equality duty (PSED) and the Prevent duty, but also so that there isn’t a circular logic of the registration conditions themselves being used as a basis on which to restrict free speech.

The reference to “particular regard” also seems to be framed so as to place free speech above the “due regard” obligation of the PSED and the “regard” duty of Prevent. The strength of the wording here reflects the special place of free speech and academic freedom on campus, which the public interest governance conditions require providers to secure. The s43 Education (No 2) Act 1986 duty requires providers to take reasonably practicable steps to secure free speech and providers generally have rules within their own governing statutes to secure academic freedom for academic staff. On top of that is the supercharged protection for academic free expression under the Human Rights act 1998 and the European Convention on Human Rights.

On (ii), the rebuttable presumption that the specified conduct is unlikely to amount to harassment contrary to the Equality Act 2010 or the Prevention from Harassment Act 1997 broadly reflects underlying law. The wider regulatory framework protecting free speech and academic freedom means it is less likely that any objective test with respect to harassment under those provisions is made out. A rebuttable presumption is a helpful framing for providers so they don’t inadvertently fall into error. 

From experience, I believe this is probably where most providers will need to take a very careful look at their existing harassment policies. This is probably why the registration condition also specifically calls out instances where providers’ harassment policies go above and beyond what is strictly considered unlawful harassment pursuant to the Equality Act or the PHA. 

Where the policies do go beyond this — and they almost always do in the form of bullying policies which aren’t connected to protected characteristics, for example — a provider must be extremely careful in applying them if doing so could reasonably be said to have a negative effect on free speech or academic freedom. Again, providers should take a careful look at their harassment, bullying and sexual misconduct policies in this regard. 

The guidance notes accompanying the new condition state that free speech and academic freedom are a “fundamental consideration” when a provider produces policies and procedures for dealing with harassment and sexual conduct, and when it takes action under those policies. A provider is expressly said to not have to take steps to comply with lawful free speech in order to meet the condition. 

Overall, a provider must update its policies to comply with the new minimum content requirements, but it must have a particularly careful eye to doing so in a way that complies with its obligations with respect to free speech and academic freedom. 

 The impact of this shouldn’t be underestimated. It illustrates two things: the strength of the underlying legal protection of free speech and academic freedom irrespective of the Act; the vital role of the OfS (and the Director of Free Speech and Academic Freedom, in particular) in helping providers understand that law and how it interacts with Equality and harassment law. The Government should reflect on that — the Director is needed irrespective of what else is done with respect to commencement of other aspects of the Act.