Response to the Consultation on the OfS Regulatory Advice on Free Speech

Members of the AFAF network have a variety of views on the Higher Education (Freedom of Speech) Act 2023 (HEFOSA). These view range from scepticism about the state regulating freedoms, through conditional support to enthusiastic endorsement. These comments are taken from the University of Buckingham AFAF branch response to the consultation. They focus mostly on matters of concern to campaigners.

Question 1 Comments on the ‘secure’ and ‘code’ duties.

The guidance does not cover the ‘promote’ duty. We believe that the OfS should develop guidance on the ‘promote’ duty as soon as possible. This duty one of the major changes to the duties of universities made by the HEFOSA 2023.

We have looked at what several organisations are suggesting. In summary, to promote freedom of speech, universities should:

• Actively organise public debates around controversial topics and bear the security costs of these, and other approved debates organised at the university. Censorship by charging must not become a norm.
• Adopt the ‘Kalven Principle’ of Institutional Neutrality.  This means that a university must not take an institutional position on political, cultural and religious issues. This principle applies to adopting the polices and positions of partisan organisations such as Stonewall.
• Appoint at least one individual free speech champion. This is challenging. The process of selection should be democratic.
• Produce a public Annual Report on how they have, and how they will promote freedom of speech.

Question 2 Comments on the guidance relating to free speech within the law.

The regulatory guidance has occasioned debate between lawyers representing various bodies. We welcome the broadest possible definition of ‘freedom within the law’ and believe that the definition in paragraphs 13 and 14 are correct. However, we suggest that the OfS takes further legal advice on this to avoid any future judgement on a free speech case going to judicial review.

We welcome paragraph 30: ‘Speech in academic contexts will therefore not amount to unlawful harassment by virtue of the viewpoint or opinion that it expresses, except in the most exceptional circumstances. Providers and constituent institutions should take reasonably practicable steps to secure such speech and not subject it to interference.’

We do not believe that the OfS regulatory guidance blurs the line between speech and harassment.

Question 3. Comments on ‘reasonably practical steps’.

A burden to be borne.

The HEFOSA was introduced because universities were in denial about the extent of a free speech crisis on campus and their indifference had a chilling effect’ on free speech. Evidence for this is documented by AFAF in The Banned List. We do not believe that the guidance will, because of its ‘burdensome’ requirements, have a ‘chilling effect’ on free speech. We agree with OfS that these regulations are needed and must be managed by universities.

We believe that the limited examples given in the guidance do not present a real picture of the extent of the threats to free speech on campus, but more, and more detailed, examples will arise through case work after 1 August.

Question 4. Comments on steps to secure free speech.

Resolving Conflicts between Policy Documents

We welcome the statement in 75 d (below) that, if policy statements conflict with the free speech code of practice, the free speech code of practice takes precedence. This statement implicitly recognises that free speech is the foundational value and not one of many conflicting values. In our experience the norm in universities is to challenge free speech based on conflict with existing policies and the institution’s ‘values’.

‘75 d. [Reference to the Free Speech Code of Practice should be] included prominently in any other document stating or explaining any policy that may affect free speech or academic freedom (for instance a bullying and harassment policy, or research ethics policy), along with a statement that nothing in that other document should be read as undermining or conflicting with the free speech code of practice; and that in case of any conflict the free speech code of practice will take precedence.’

Training

We believe free speech training should be short and should focus on the law.

Criticism of Your Institution

We recommend that the OfS brings the UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel (1997) to the attention of universities. It includes the right of academics to criticise the institution in which they work:

…the principle of academic freedom should be scrupulously observed. Higher-education teaching personnel are entitled to the maintaining of academic freedom, that is to say, the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.’ (Section 27)

The ‘Cardiff Charge’

We are concerned that universities will charge academics who organise discussions and talks for venue and security costs making holding such events impossible, unless bailed out by the Free Speech Union. The University of Cardiff recently demanded £1500 from the Cardiff Academic Freedom Association (CAFA), one of our branch network members, to cover these costs.  This is censorship by charging.  It is not the norm, and most universities bear the costs, and at least one, Queen Mary University of London, explicitly states that they will bear costs. Debates and discussions should be a normal part of academic life and not something ‘external’.

 Question 5. Other comments on the proposed regulatory advice.

Our brief response is based on our experience as a branch of Academics For Academic Freedom (AFAF) and on the experience of AFAF as a campaigning group.  Except for our response to section 1, we have only made comments on areas that we believe need addressing based on our case work.

However, we have considered useful material provided by the London Universities’ Council for Academic Freedom, the Free Speech Union and the Best Free Speech Practice project.

Image Credit: Jza84 (2010) County of Buckingham Crest. Public Domain.