The OfS has now published its first consultations into its regulation of Free Speech. The first related to its proposals for a complaints scheme, the second to its regulation of Student Unions.
In the consultation documents we learn that this is going to be a long haul – there will be secondary legislation, there will be further consultation and regulation. The sector and the regulator will be thinking about this for some time – the timetable such as it is currently takes us to September 2025.
One of the wicked problems yet to be commented on – there is no mention in the first two consultations – is how the Prevent Duty and the new duties arising from the Higher Education (Freedom of Speech) Act 2023 will relate to each other.
New Prevent Duty Guidance (coming into effect on the 31st December 2023) requires us to reduce ‘permissive’ environments for radicalisation as part of our duty to ‘tackle the ideological causes‘ of terrorism. Whereas the Higher Education (Freedom of Speech) Act 2023 seems to require us to have and promote a ‘permissive’ environment for Free Speech up to the point where an applicable law is broken.
The act does not use the word ‘permissive’ and as yet we have no guidance on our duty from the regulator. However, a simple definition of ‘permissive’ is a social, legal or other context that allows behaviour that other people might disapprove of. That is clearly the tenor and intent of the legislation.
If ‘due regard’ – helpfully defined in relation to equality legislation by the Brown principles – means that we ‘should consider’, then the implication is that ‘particular regard’ means that we should both consider first and then also preference free speech when exercising regard for other duties.
It is worth noting that the unqualified ‘regard for… ‘ is now at the bottom of the heap and it is only ‘regard’ for the need to protect the institutional autonomy of higher education institutions that the OfS (amongst several other things including Free Speech and Academic Freedom) and the Secretary of State must show under HERA 2017 when exercising their duties. That ‘regard for’ is considered within the consultation document however it is in this, and other regulation always considered in the context of the particular regulation rather than the combined effect of the whole – much like regulatory burden.
The relationship is then the balance to be struck between being permissive for X but not for Y, or vice versa. The decisions made in this space are exposed to the ideological preferences – and now potentially complaints and legal challenge – of all sides. We are happy with A but not B and we are happy with B but not A. No doubt case law will emerge.
This tension has been expressed explicitly by the last Home Secretary to the Metropolitan police. It is not new.
A long forgotten ex-prime minister (whatever happened to him) put Universities in the firing line in 2015 when in the context of counter-extremism he singled out several London institutions for hosting Islamic speakers. A situation where the Universities had acted in accordance with their duties to protect free speech under the Education Act 1986 but had fallen foul of a political sense, and indeed assertion, that this was too ‘permissive’, even if it was legal.
That sense was attached to the failed 2015 Extremism Bill, described by Sara Khan, the Lead Commissioner for the Commission for Countering Extremism (CCE), as “unfocused and rightly criticised because of an inability to ensure the protection of freedom of expression and other civil liberties”.
As we know in the context of the recent events in the Middle East it remains a live social issue. It also remains a potential legislative issue. In 2021 the CCE published a legal review, “Operating with Impunity – Hateful extremism: The need for a legal framework”, that charted a path the government can take which “will ensure protection of freedom of expression while restricting the dangerous activity of hateful extremism” and called for a “new legal and operational framework to capture the specific activity of hateful extremism”.
The report found in the absence of legislation it is “currently lawful to:
- glorify terrorism, so long as one avoids encouraging the commission, preparation, or instigating of acts of terrorism or related offences;
- intentionally stir up racial hatred, so long as one avoids being threatening, abusive or insulting and, in the case of religious hatred, avoids being threatening when doing so (similar offences with variations apply to other protected characteristics);
- publish and distribute material to intentionally stir up racial or religious hatred as long as the material avoids being threatening, abusive, or insulting in its content.”
This review does have some useful case studies on what is legal and what is not that may help us exercise judgement and make decisions.
It seems that there are plans under Michael Gove (should the Government last long enough) to resurrect legislation around extremism, but now perhaps more broadly and more disturbingly to cover “the promotion or advancement of any ideology which aims to overturn or undermine the UK’s system of parliamentary democracy, its institutions and values.”
It is clear that the sector will need to manage the tensions in our complex ‘permissive’ environments through universities developing clear speech codes supporting civil disagreement, rules of engagement for discourse, and responsible free speech in an academic context. These rules of engagement need to be embedded in culture and habit and not turned into further bureaucracy.
In simple form: “It ain’t what you do it’s the way that you do it and that’s what gets results” (Funboy Three, 1982) might be an exhortation toward good manners and disciplined speech however it is evident that it needs to be modified by the realpolitik that one may “Smile and smile and be a villain”. (Hamlet, 1564-1616).
The question then remains, whose ‘villain’?
