The higher education regulator has finally published Regulatory Advice 24 – the official guidance on compliance with new free speech regulations in the UK. This comes just a few weeks before several key parts of the Higher Education (Freedom of Speech) Act are set to commence, including several new duties on higher education providers.
It has been more than a year since the OfS closed consultations on the implications of HEFOSA, but this time has certainly not been wasted. The official guidance is almost exactly twice as long as the initial draft published in March 2024. This partly because the number of examples of how to comply with the law has grown from 32 to an impressive 52. The OfS has also added in a 164-page analysis of responses and decisions from the consultation, as a companion piece.
The following is a brief summary of the most important points in the guidance.
The primary duty which HEFOSA puts on universities, set to commence on 1 August, is the duty to “secure freedom of speech within the law” (the “secure” duty). Section 2 of the guidance offers a helpful “three-step framework” to determine whether, for any particular act of speech, this duty has been met. When considering an act of speech, universities should ask themselves the following:
Step 1. Is the speech ‘within the law’? If yes, go to step 2. If no, the duty to ‘secure’ speech does not apply.
Step 2. Are there any ‘reasonably practicable steps’ to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
Step 3. Are any restrictions ‘prescribed by law’ and proportionate under the European Convention on Human Rights?”
This is a concise and easy-to-follow set of instructions. A large section of the guidance is devoted to expanding on this framework and providing examples of exactly how it may be applied in practice.
Step 1. The guidance specifies that “the law” refers to actual legislation, legal precedents and court decisions only. It does not include university regulations or contracts with employees. Furthermore, the OfS takes an important step in placing the burden of proof on those attempting to restrict speech, rather than the other way around: “There is no need to point to a specific legal basis for speech. Instead, the starting point is that speech is permitted unless restricted by law”. In other words, unless there is a specific law prohibiting speech, you cannot restrict it.
Step 2. Universities have a positive duty to take “reasonably practical” steps to secure freedom of speech within the law. They also, by implication, have a negative duty not to take certain steps that would restrict legal speech, such as, for example, sacking an academic for lawfully expressing a certain viewpoint.
The key question is what exactly makes a particular action “reasonably practicable”. Although the guidance acknowledges that this will often depend “on the specific facts”, it nevertheless manages to produce a list of factors which are relevant and irrelevant in determining the reasonableness of an action. Relevant factors include whether the “step” would “affect the essential functions of higher education”, such as learning, teaching, research, and key administrative tasks. Certain protections of free speech could be “unreasonable” if they are highly likely to impede any of these.
On the other hand, factors which should not be taken into account include the speech’s viewpoint, whether it aligns with the university’s values, whether it has potential to cause offense, and whether internal or external groups disagree with it. ” “External groups” here includes foreign governments. Additionally, providers must not consider the impact any legal speech might have on their reputation. This means that universities must allow, say, exiled critics of foreign regimes to voice their critiques on campus, even as the angry voicemails from that country’s ambassador pile up.
Step 3 is the most complex. It essentially concerns the instances in which it may be permissible to limit lawful speech. For this, two conditions (each with several sub-conditions) must be met. First, the limitation must be prescribed by law, meaning that it has to stem from some existing legal rule, which anyone affected by it has adequate access to. Second, the interference with free speech must be “proportionate”.
This concept is tricky, but the short version is that any restriction must be directly and rationally tied to a sufficiently important objective, and that it must be the least intrusive option that realistically achieves the objective. The illustrate what this means in practice, Example 24 cites a student who was immediately removed from a Social Work MA course after posting on social media that homosexuality was sinful, on “fitness to practice” grounds. In the example, a Court of Appeal found that since a university ban on disapproval of homosexuality in public would extend to all “traditional believers”, it “cannot be proportionate”. Moreover, the Court found that the immediate removal of the student from the course was not the “least intrusive approach” and therefore also disproportionate.
Section 3 of the guidance “gives concrete examples of steps to secure freedom of speech that are likely to be reasonably practicable in a wide range of circumstances”. These include the code of practice relating to free speech which, under HEFOSA, all universities are obliged to publish. The guidance’s main recommendation is that whenever a provider “adopts a rule of conduct that restricts lawful speech”, that rule must be connected to a “specific English legal rule or regime”, “adequately accessible” to anyone who is affected by it, including visiting speakers, and “formulated with sufficient precision” that those affected by the rule will be able to foresee the consequences of its application.
But the most significant part of this guidance is not these general principles but the wealth of concrete examples used to illustrate them: it is here that the meat lies. Four recommendations stand out in particular:
- Universities should not require statements evidencing commitment to EDI in appointments and promotions.
- Universities should not put blanket bans on “misgendering”.
- Universities should not encourage the anonymous reporting of “microaggressions”.
- Universities should not put political restrictions on research.
UK universities have engaged in all these practices widely over the past 10 years. From 1 August, they will be against the law. All those who care about academic freedom should welcome the publication of this strong clear guidance.