CAF advisory board member Professor Abhishek Saha has written for Times Higher Education on what may prove to be one of the most consequential, yet least immediately understood, aspects of the recent High Court ruling in Sussex v OfS. His article explains why the OfS should appeal the court’s treatment of Ground 3D and the three-step free speech framework set out in the regulator’s Regulatory Advice 24 (RA24).
Strictly speaking, RA24 post-dated the OfS decision to fine Sussex over free speech failings, and the new Higher Education (Freedom of Speech) Act duties were not directly at issue in the case. But both the parties and the court treated RA24’s framework as the correct way to analyse “freedom of speech within the law” – a statutory concept central to the new regime. First: is the speech lawful? Second: if so, are there reasonably practicable steps the institution could take to secure it? Only if there are not does the third stage arise: is any interference prescribed by law and proportionate under Article 10(2) of the European Convention on Human Rights?
Saha’s concern is that Mrs Justice Lieven’s reasoning collapses the second and third stages in a way that could materially weaken RA24’s protection for lawful but controversial speech. The judgment says proportionality – in essence, whether restricting speech is justified and no more intrusive than necessary – “necessarily encompasses” the question whether reasonably practicable steps could have protected speech, and that the two inquiries “elide into the same factual analysis”.
But on RA24’s own logic, Step 2 is not a procedural formality. Before considering restrictions, it requires institutions to ask whether lawful speech could be secured in the first place, including through “negative steps”: declining to investigate, not cancelling, removing policy restrictions on lawful viewpoints, or simply refraining from imposing restrictive conditions or other risk-mitigation measures.
Saha illustrates the problem by turning to paragraph 250 of the judgment, which considers the example of a gender-critical feminist lecture. The judge suggests that requiring the lecturer to submit remarks in advance, presumably to university administrators, could qualify as a “reasonably practicable step” because it would be less restrictive than cancelling the event outright. But that is precisely where the categories become confused. If the point of Step 2 is to ask whether lawful speech can reasonably practicably be secured, then allowing the lecture to proceed without prior vetting is the obvious candidate step.
By contrast, requiring advance submission of the text is not a step that secures the speech in that sense. It is a condition placed on the speech before it may be delivered. And while that may, in some circumstances, be a lesser interference than cancellation, it remains an interference all the same, with all the attendant stigmatising effects for the lecturer in question. That means it belongs, if anywhere, under Step 3’s proportionality analysis, not Step 2’s prior duty to protect lawful expression wherever reasonably practicable. A restriction of the kind suggested by the judge may therefore satisfy Step 3 and yet still be impermissible under RA24 if non-interference was reasonably practicable under Step 2.
This is why the separation between the two stages matters. If it is reasonably practicable to allow lawful speech to proceed without interference, then Step 2 requires that course to be taken and the analysis should end there. The university should not proceed to Step 3 to ask whether a lesser restriction – advance vetting, special conditions about format, or other tightly managed arrangements that implicitly recast lawful views as inherently suspect and may ultimately justify still more intrusive interventions, including cancellation – might nevertheless be proportionate.
The question raised by Ground 3D is therefore foundational: must universities actively secure lawful speech wherever reasonably practicable, or may they simply justify restrictions after the fact through proportionality?
You can read Professor Saha’s article on why the court’s reasoning now requires challenge by the OfS here.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.
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