by GR Evans
Under the Higher Education (Freedom of Speech) Act higher education providers and students’ unions will be required to publish Codes of Practice on freedom of speech. The Bill sets out the requirements separately for higher education providers (at A2 (2)(c)) and for students’ unions (at A6(2)(c)).
For both the Code must cover ‘the conduct required’ of the responsible bodies. Any complaint is therefore to be against the provider or students’ union, not any person or persons whose ‘conduct’ may be complained of. The complainant must be an affected individual who must have ‘suffered adverse consequences’ as a result of something the responsible body has done or not done. (An affected individual is (a) a person who is or was— (i) a member or member of staff of the students’ union, (ii) a student of the provider, or (iii) a member or member of staff of the provider or of any of its constituent institutions, or (b) a person who was, or was at any time invited to be, a visiting speaker.)
This has the advantage of clarifying who are to be the parties in a dispute about ‘conduct’ under the Act. However, the definition of ‘adverse consequences’ will have to be tested case by case and shown to be the fault of the responsible body. This could well seem remote from the actions of individuals which triggered or caused the harm. It will not be easy to identify a role for a decision-maker – the Bill requires the Office for Students to create a Free Speech tsar as arbitrator – to determine what responsibility a provider has in a given case, and especially the responsibility of individuals acting on behalf of the provider, such as HR professionals or union representatives.
Difficulties of these kinds have arisen in a number of instances which throw into question the practical reality of laying blame as now proposed. Kathleen Stock, a Professor at the University of Sussex, faced demands from campaigners that the University should dismiss her for her alleged transphobia. They wrote ‘we do not say Stock should not be permitted to say the things she does. We believe in the principles of academic freedom’, but they did not want those relied on. ‘Conflating concern about the harms of Stock’s work with threats to academic freedom obfuscates important issues’, they said. Stock told the Guardian that the academics had created ‘an atmosphere in which the students then become much more extreme and much more empowered to do what they did’. UCU had taken sides against her, but trade unions are not included in the Act as responsible for the protection of freedom of speech.
The Vice-Chancellor of the University wrote to ‘all staff’ to say that the University had ‘vigorously and unequivocally defended her right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind’. Stock was not dismissed. She chose to resign. The question must be whether the University could have done more to protect her against the ‘adverse consequences’ she undoubtedly faced. On what grounds could she complain against the University?
Steven Greer, a Law Professor at Bristol, was attacked by student members of the University’s Islamic Society for allegedly making ‘Islamophobic, bigoted and divisive’ remarks in lectures. He received online threats. The University did something. It held a review, conducted by a KC who found that his remarks included ‘no evidence of Islamophobic speech’ and ‘did not amount to discrimination or harassment’, being ‘intended as the basis for academic debate by the students who elected to study it’. A Bristol spokesman was quoted as saying that students were encouraged ‘to engage with, debate, analyse and critique ideas and theories of all kinds within our academic programmes’. Steven Greer retired in 2022 but has published a book about his experience. He continues to call for the student activists to be punished by the University.
Speaking to Times Higher Education Greer drew attention to two other ‘freedom of speech’ cases at Bristol. David Miller, Professor of Political Sociology, had been dismissed by Bristol over remarks he had made about Israel. A Jewish student had made a complaint. The University commissioned a report from a KC, who, the University explained in a statement, ‘considered the important issue of academic freedom of expression and found that Professor Miller’s comments did not constitute unlawful speech’. Nevertheless, Miller was dismissed in October 2021, apparently for unprofessional conduct. His internal appeal was unsuccessful in March 2022. Had the new Act been in force he could have complained against the University, but could it have defended his dismissal if it was for reasons unconnected with any breach of its responsibilities to protect freedom of speech?
The second, the Bristol student Rachel Rosario Sanchez, had felt undefended by the University when she faced a hate campaign by student ‘trans activists’. She took the University unsuccessfully to court alleging that it had failed in its duty of care to her as a student. The option of making a complaint to the Office for Students might have been open to her had the new legislation been in force.
In Oxford, Professor Selina Todd co-signed an open letter to The Sunday Times in June 2019 questioning the acceptability of universities paying for training by Stonewall on LGBT matters, arguing that it was discouraging academic freedom of discussion. She was threatened by trans-rights activists. The University provided security at her lectures. In February 2020 her invitation to a conference was withdrawn. She told Cherwell (7 March 2020) that she was ‘shocked to have been no-platformed by this event, organised by Oxford International Women’s Festival and hosted at Exeter College’. She had “explained to the organisers that some trans activists may object to my being there. In fact, trans activists had already tried to shut the conference down because they claimed second-wave feminism was inherently trans-exclusionary”. If this was a college event, the University’s conduct was not in question in this case. The University has not sought to limit her continuing exercise of freedom of speech. She wrote to The Times on 3 November 2021 to criticise the Athena Swan scheme which is approved in many universities.
Cambridge has had recent cases testing the ‘conduct’ of one of its colleges and its Students’ Union. “Students from various colleges eagerly participated in the peaceful demonstration by banging pots and pans along with the chants”. This was reported by Tab in an article extensively illustrated with pictures of a ‘peaceful protest’ held outside Caius by the Cambridge Student Union LGBT+ campaign on 25 October 2022. A possible complaint about that action might lie against Cambridge University Student Union (CUSU).
The occasion was a lecture given by Helen Joyce, leader of the campaign group ‘Sex Matters’, at the invitation of Professor Arif Ahmed, a Fellow of Caius. It had gained considerable notice because the Master of Caius had circulated a letter deprecating the event, which had prompted press coverage. The Head of House did not, however, seek to prevent the occasion from taking place. But this is an example of a ‘freedom of speech’ episode where the responsible body was a ‘constituent institution’ of a higher education provider registered by the OfS. Any complaint of ‘adverse consequences’, for example about the consequences of the letter circulated by the head of House, would lie against the College.
Varsity has recently reported the vandalising of the front door of the Department of Chemical Engineering and Biotechnology by an activist group ‘citing the department’s ties to fossil fuel funding’ and alleging ““lobbying” by the department to delay a motion to stop the University receiving funding from fossil fuel companies”. “Activists from the group had taken similar action against the Schlumberger Gould research centre and the BP institute”.
These examples suggest that it is not going to be easy to draft Codes of Practice for providers or students’ unions which can realistically protect the freedom of speech of individuals in the face of an activism by other individuals which may place a higher ethical premium on a particular cause or campaign. The banging of pots and pans is arguably an acceptable form of protest speech, but can that be true of the breaking down of a door? The damaged Departmental door is not a person so it cannot make a complaint.
The role of the OfS in handling complaints
The new legislation is built round the role of the Office for Students. The OfS is to ‘regulate’ the duties of providers and students’ unions, operate a Complaints Scheme and have on its Board a Director for Freedom of Speech and Academic Freedom, adding this role to its other Directorship, for Fair Access and Participation.
This will require a change of attitude by OfS. On 15 December 2022 OfS implied that it would take no direct role in the enforcement of freedom of speech in higher education providers:
“The Office for Students stands for the widest possible definition of free speech within the law. It is not our role to take sides in the contested debates that feature in the higher education sector. We must, and will, apply our understanding of the law to the facts of an individual case and do so with care and impartiality.”
However, it did sketch intentions which might now be included in a Code of Practice. It would ask whether a provider has “robust decision-making arrangements, which require it to consider the impact of its decisions on free speech and academic freedom as part of the decision-making process” and “checks and balances to ensure that its policies and processes do not adversely affect free speech or academic freedom”. It would ask whether it ensured “that staff are appropriately trained, in particular those who are making decisions that may affect free speech and academic freedom matters.”
OfS wrote more robustly about its role in protecting freedom of speech on 17 May 2021, after the Higher Education (Freedom of Speech) Bill was introduced. It shared a joint press release with the Department for Education on 12 May, proposing the role of a new Director, to oversee the various free speech functions of the OfS, now to include compliance and enforcement. It does not appear to have been suggested that this task properly lay with the UKRI too, so as to ensure that freedom to research was protected as well as freedom of speech in teaching. The vandalising of the Cambridge Departmental door was prompted by remarks on the value of research in areas in dispute. The word ‘research’ appears in the Bill only as part of the title of the Higher Education and Research Act 2017 and a few times in connection with checks on overseas funding for research.
When a ‘Case for the Creation of the Office for Students’ as ‘a new public body’ to take the place of HEFCE and the Office for Fair Access was outlined by the then Department for Business Innovation and Skills on 2016 it was argued that there was ‘a need for a simpler, less bureaucratic and less expensive system of regulation’. This was the intention under which the OfS was created. However, concerns about its operation have been multiplying. On 12 January 2023 the sector bodies (Russell Group, Million Plus, GuildHE and the University Alliance) wrote a joint letter to the Chair of the Education Select Committee calling for ‘an inquiry into the operation and performance of the Office for Students’. It said it would be ‘timely’ to ask whether it was ‘fit for purpose’ given its new Freedom of Speech role.
The sheer scale of the expansion needed to provide for the operation of the new complaints procedure does not seem to have been calculated. The OfS has a budget of £30m and 350 staff. It is likely to need many more to cover this new duty and the litigation it may prompt. The Bill says that the complainant must have exhausted internal procedures first before it comes to the OfS and if the matter is before a court or tribunal the OfS scheme may not consider it, but between those stages the OfS will be very busy.
Also not fully examined seems to be the role of the new Director, described in the Bill in an insertion to Higher Education and Research Act 2017, Schedule 1 on the OfS. It involves ‘overseeing’, ‘performing’ and ‘reporting’ to the OfS. The ‘performing’ lays on the Director the ‘free speech functions’ of the OfS including ‘monitoring and enforcing the registration conditions’ of providers. This seems likely to require considerable additional staffing to support the Director.
The new legislation imposes on higher education providers and students’ unions a responsibility which seems difficult to fulfil in the face of the untidy realities of the ‘free speech’ behaviours of their members, staff and students as exemplified in recent disputes. It lays a further responsibility on the Office for Students to police it all at a time when concerns are mounting about its competence in discharging its existing responsibilities.
SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.
This is a revised version of an article which first appeared in The Oxford Magazine No. 451, Eighth Week, Hilary Term 2023, reproduced with the kind permission of the editor Tim Horder.