Governance News Alert:Office for Students (OfS) Regulatory advice 24, Guidance related to freedom of speech and Prevent monitoring: Summary of 2023-24 accountability and data returns

The below guidance and Act applies only to providers registered in England. Governors at institutions may wish to read this to review their own institutional practices, noting regulatory differences. 

The guidance covers free speech duties under the Higher Education (Freedom of Speech) Act 2023 (“the Act”). It focuses on duties relating to securing freedom of speech and the freedom of speech code of practice. It sets out in broad terms how providers can ensure they meet the new duties and gives example of steps that providers must take to secure freedom of speech. The guidance is in three main sections. The first defines ‘freedom of speech’ and ‘academic freedom’. Section 2 sets out a three-step framework for assessing compliance with the ‘secure’ duty, including discussion of “reasonably practicable steps”, and whether restrictions are lawful and proportionate. Section 3 gives concrete examples of steps to secure freedom of speech. OfS has also released data on university returns relating to the Prevent duty, which are covered in the last three bullet points below.

Guidance related to freedom of speech can be found here

Summary of 2023-24 accountability and data turns can be found here 

At-a-glance:

• The Act protects free speech within the law. It does not protect unlawful speech. The Act requires the governing body of each provider, and constituent institutions, to take reasonably practicable steps to secure free speech within the law for students, staff and visiting speakers. It also requires them to maintain a free speech code of practice and to promote free speech and academic freedom (p4)
   
• “Within the law” means the laws of the state or made by courts. It does not include rules made by a provider or constituent institution through contracts or its own regulations or standards (although see step 3 on proportionate interference and e.g. para 127). Free speech includes lawful speech that may be offensive or hurtful to some. Speech that amounts to unlawful harassment or unlawful incitement to hatred or violence (for instance) is not protected (p10)
   
• Providers should not admit international students or visiting academics or enter into arrangements or programmes with foreign countries on the basis of funding arrangements or other criteria that have the effect of restricting their or other's academic freedom or freedom of speech . Practicable steps may include proactive checks, particularly where there are known risks relating to possible attempts to monitor, censor or intimidate students or staff. These may include translating official documentation and undertaking robust risk-based human rights due diligence before entering into such arrangements (p37)
   
• Other laws, for instance the Public Order Act 2023, Protection from Harassment Act 1997, the Terrorism Act 2000 and 2006, may restrict freedom of speech (p62)
   
• Practicable steps to secure freedom of speech and academic freedom could include amending policies and codes of conduct that may restrict or regulate speech. The Act also includes a negative duty to refrain from taking steps which could restrict freedom of speech e.g. not firing a member of academic staff for lawfully expressing a particular viewpoint or not cancelling a visiting speaker because their views are unpopular (p15)
   
• What is considered “reasonably practicable” may include consideration of whether taking or not taking the step affects the essential functions of higher education, i.e. learning, teaching, research and administrative functions, or gives rise to concerns about safety (p15)
   
• Relevant considerations will likely not include whether the speech aligns with the provider’s aims or values, whether it is controversial or offensive, whether external or internal groups approve of the viewpoint or reputational impact (p16)
   
• Context is always relevant in determining whether speech is unlawful. Universities and colleges have freedom to expose students to a range of thoughts and ideas, however controversial. Even if the content of the curriculum offends students with certain protected characteristics, this will not by itself make that speech unlawful (p20)
   
• In certain circumstances it may be necessary and appropriate for a provider to regulate the time, place and manner of a protest or demonstration. For example, this may be necessary if those attending a place of worship are at risk of intimidatory harassment (p28)
   
• Using safety grounds for cancelling an event or speaker is more likely to be relevant in relation to a specific danger. Unspecific, distant or indirect potential effects of the speech are unlikely to be relevant to whether a step is reasonably practicable and could breach the “secure” duty (p31)
   
• Contractual obligations on staff which include, for instance, a social media policy requiring them not to post material that is “unnecessarily critical” of the college could be in breach of the “secure” duty (p33)
   
• Providers should not require applicants to any academic position or promotion to commit (or give evidence of commitment) to a particular viewpoint. For instance, depending on the circumstances, requiring candidates to provide evidence of commitment to equality (or equity), diversity and inclusion (EDI) may be restricting the lawful expression of certain viewpoints. Removing this requirement is then likely to be a reasonably practicable step (p38)
   
• Providers and constituent institutions should ensure adequate training on freedom of speech and academic freedom (p38)
   
• The OfS would generally expect providers to reject public campaigns (eg organised petitions or open letters, media campaigns) to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations (p39)
   
• Employment contracts stating, for instance, that employees must “uphold the college’s commitment to social justice” could, depending on the particular facts of the case, suppress lawful expression of scepticism about some conceptions of social justice. Removing this contractual requirement is likely to be a reasonably practicable step (p43)
   
• A blanket ban on misgendering is likely to breach the “secure” duty. However, there may be circumstances in which the “repeated and deliberate” use of dispreferred pronouns to a particular person could amount to harassment (p43)
   
• Providers should not encourage students or staff to report others over lawful expression of a particular viewpoint, for instance, mechanisms where students are encouraged to make anonymous reports of ‘microaggressions’ (not further defined) by named individuals which may result in action against the individuals. Universities should state the category of reportable speech more precisely and more narrowly, eg harassment and/or sexual misconduct, and clarify that anonymous reports are solely for data collection purposes (p46)
   
• OfS data shows the number of events or external speakers approved by universities and colleges increased from 39,475 in 2022-23 to 42,440 in 2023-24 (p5)
   
• The number of events or external speakers approved with conditions due to a Prevent-related risk increased from 15 in 2022-23 to 30 in 2023-24. Conditions include measures such as increased security or requiring tickets. The number of events or external speakers rejected for non-Prevent reasons decreased from 340 in 2022-23 to 220 in 2023-24 (p5)
   
• A total of 265 Prevent-related cases were escalated to the point at which the Prevent lead became involved in 2023-24. 70 related to Islamist radicalisation, 30 to extreme right-wing radicalisation and 90 to “mixed, unclear or unstable ideology”. A formal Prevent referral was made in 65 cases (p4)

Implications for governance:

The OfS guidance attempts to help institutions navigate the complexities and tensions around the duty to secure freedom of speech and academic freedom. Although it relates to institutions  directly in England, principles related to institutional autonomy and academic freedom would be relevant in Scotland, Wales and Northern Ireland.

The guidance helpfully sets out a more nuanced approach to decision making and a stronger emphasis on proportionality. Particularly helpful are a series of specific examples of cases that can arise, and indeed some which have arisen in recent years, and the practical steps to address or resolve them in a manner that makes it likely that the institution will uphold its duties in regard to the Act.

Securing freedom of speech is a requirement of the governing board and the guidance has implications for a number of well-established policies, processes and procedures that it may be timely to review.

For instance, requiring a commitment to equality, diversity and inclusion in recruitment, which many institutions do, could fall foul of freedom of speech because it compels a certain viewpoint. Blanket bans on misgendering are at risk of doing the same, the guidance warns. Proportionate engagement on inclusion and belonging in relation to the Public Sector Equality Duty is likely to be lawful. 

Governing Bodies may also want to consider the policies, processes and procedures around online portals which encourage anonymous reporting of “micro-aggressions”, as well as contractual obligations relating to reputational matters or institutional values, to ensure they do not curtail freedom of speech and academic freedom. 

The guidance points out the public sector equality duty (PSED), set out in the Equality Act 2010, includes a duty to “have due regard” to the need to eliminate discrimination, promote equality and foster good relations, rather than being a requirement that mandates restrictions on speech. The Equality Act does not contain any requirement for providers to protect students or others from ideas that they might find offensive.

It gives the example of a Jewish student putting up a mezuzah on their university accommodation doorpost, leading to complaints from students alleging the symbol is politically provocative and that the university should require the student to remove it “to foster good relations”. The OfS points out that if the university prioritises objections from other students over lawful expression it is likely to have failed to take reasonably practicable steps to secure freedom of speech and therefore to have breached its ‘secure’ duty. More generally, it warns that such an action may foster a “chilling effect”. 

Similarly, race-awareness training that compels assent could breach the “secure” duty. For instance, requiring agreement to the statement “All white people are complicit in the structural racism pervading British society”. 

A key message that can be taken from the guidance is the need to tighten up language and to be as clear, concise and specific as possible in policies, communications, and decisions. 

For instance, legal definitions should be used where these are available, objective tests should be incorporated where appropriate, and vague language or undefined terms should be avoided. 

Prompt, viewpoint-neutral statements from institutions in support of free speech and academic freedom when cases do arise is a reasonable step that can be taken.

Similarly, complaints processes should “promptly reject vexatious, frivolous or obviously unmeritorious complaints relating to speech”. The guidance adds: “The starting point of any such process should be that lawful speech will not be punished because of a viewpoint that it expresses”.

Governing bodies may want to refer to the guidance to ensure their institution’s freedom of speech code of practice is as up-to-date as possible and that it comes into play in all relevant contexts, including for instance, admissions and appointments, disciplinary matters, harassment and bullying policies, curricula design, fitness to practice policies and procedures, codes of conduct and the Prevent duty. Its communication to staff and student should also follow the good practice guidelines in the OfS document.

Training on freedom of speech and academic freedom for staff and governors involved in appointment or promotion panels, or in decisions about staff dismissal, is recommended. Governing bodies should note the specific guidance on governance (189-193) to ensure that appropriate records are kept of all decisions that are likely to have a substantial (positive or negative) effect on freedom of speech within the law. Providers should also put in place arrangements setting out clearly and explicitly which committees or individuals are authorised to make decisions that are likely to have a substantial impact on compliance with any free speech duties.