Freedom to question, challenge and debate

All staff and students are entitled to teach, learn and research in a culture that values vigorous debate, including – or perhaps particularly – in relation to difficult or contentious or discomforting topics. That is the very point of a university.

As the statutory regulator for higher education in England, the OfS wants every student to have a fulfilling experience of higher education that enriches their lives and careers.

Our work has two main areas of focus. The first of these is quality and standards – we think all students should have a high quality academic experience which broadens their knowledge and skills, and equips them for future work or further study. Our second area of focus is equality of opportunity. That’s about ensuring that all students – regardless of their background – can benefit from higher education.

Those two things – quality and equality – go hand-in-hand. We are not doing our job if students disadvantaged by their background are recruited onto poor quality courses with disappointing outcomes.

So where does free speech fit in to this picture?

Students will not have a high quality education if that education is not grounded in freedom of expression. That’s freedom of expression for themselves, for fellow students, and for those who teach or supervise them.

Students are entitled to be taught by people with the widest range of views. We do them a disservice if we seek to protect them from things that might be challenging or upsetting – it is not a high quality experience if lawful speech is limited.

In short, we think that free speech and academic freedom are fundamental to our system of higher education. They are foundational principles. And they should be guarded vigilantly.

Setting the scene

Before talking about what that might mean in practice, let me be clear about a few key points.

The OfS has no interest in fighting culture wars or taking sides in contentious debates. Our role is to ensure that lawful speech is protected and that academics are free to teach and research with confidence. They should be able to speak on controversial topics without worrying about their working environment or their careers. This must be the case regardless of the politics or position of any individual.

Attempts to suppress or censor lawful speech, or academic freedom, should be robustly challenged, whether those attempts are made by students, staff or others such as foreign states.

In saying these things, I’m not wilfully ignoring, or being naïve about, the complexities that characterise debates about free speech as they’ve played out in universities and colleges, in the media, and in parliament over the past few years.  And of course I recognise the deeply contested and personal nature of much of that debate.

I also recognise – and I sympathise with – the passion that drives many commentators. This is a debate that goes to the heart of what a university is – or should be. It raises fundamental issues and big questions about the pursuit of truth and new knowledge. It also often connects to, and is fuelled by, broader debates in society: about identity; harassment and discrimination; the regulation of social media; and so on.

It’s also worth saying that I’m well aware that not everybody agrees about the extent to which free speech is – or is not – a problem in our universities.

The overwhelming majority of campus events – 99.5 per cent – went ahead in English universities in 2020-21. That’s good news. But some people use that statistic to suggest the OfS shouldn’t be worried about free speech at all. We think the issues are more complex than suggested by a small tally of events that don’t go ahead or a small number of speakers who are publicly no platformed.

We’re more concerned that attitudes and cultural assumptions in the academic environment mean that some topics are implicitly seen as off-limits, that some books never get onto reading lists, and that people who reasonably disagree on some issues may feel silenced. We have heard each of those concerns from staff and students.

And a recent study by King’s College London points in a similar direction. It found that 34 per cent of students thought that free speech was ‘very’ or ‘fairly’ threatened at their university – an increase of 11 percentage points from 2019. Thirty-eight per cent thought that universities were becoming less tolerant.

So at the OfS, we’re clear: this is a real issue. We can’t bury our heads in the sand and pretend otherwise.

We’re looking to universities to also take these concerns seriously. They should have the confidence to uphold and promote lawful free speech and academic freedom. Having worked in universities for much of my career, I understand how hard this can sometimes be for vice-chancellors.

What does the law say about free speech in higher education?

I want now to consider briefly some of the challenges of addressing these issues effectively on campus. I say ‘briefly’ because as many of you will know at first hand, free speech and academic freedom sit at the confluence of a number of legal and regulatory responsibilities.  Some of those responsibilities, not least the OfS’s role, will change significantly if legislation currently before parliamentary is enacted.

For those of you wanting more information, we’ve published the latest in our series of Insight briefs. It explores the legal and regulatory framework within which universities and colleges make their decisions about academic freedom and freedom of speech.

In particular, it draws attention to the nature of the statutory free speech duty placed on all institutions in England. They are required to take reasonably practicable steps to secure free speech within the law. So it’s an active, doing, duty. It’s about taking steps. Our regulatory questions would focus on understanding the steps a university has taken, and whether there are other things it could or should have done to secure lawful speech.

Our view is that the statutory obligation is likely to entail taking a wide range of steps in practice. For example, we think it’s unlikely to be sufficient for a university simply to make public statements in favour of free speech, welcome though that would be.

The brief also sets out some aspects of the relationship between free speech and equality law – particularly the Equality Act 2010. We know that universities and colleges have been grappling with this. And perhaps not always getting it right.

Equality concerns are sometimes presented as pushing against freedom of speech on campus. We don’t think that’s right. But the Equality Act does require careful consideration. It contains the Public Sector Equality Duty (the PSED) which is a duty to ‘have due regard’ to the need to achieve various aims, such as eliminating discrimination and harassment, and advancing equality of opportunity, for people who share one of nine protected characteristics.

But it is not a duty to achieve those things.

Universities and colleges should, of course, be clear about the particular equality implications of their policies and decisions. They should recognise the desirability of achieving the aims of the PSED. But they must do that in a way that does not undermine the importance of free speech and academic freedom in higher education.

The free speech duty requires universities to act, whereas the PSED requires them to think about various matters as they act.

We see universities and colleges sometimes getting this statutory framing of the PSED wrong. We’re concerned this means that they may be – perhaps inadvertently – curtailing lawful speech. In other words, they may not be talking steps that are reasonably practicable to secure lawful speech because they’ve wrongly decided to take steps to achieve in practice the various matters in the PSED.

The Equality Act is also relevant because of its prohibitions on discrimination and harassment. Again, these relate to the protected characteristics defined in the Act.

We sometimes see institutions having difficulty with these provisions too. For example:

• They might not always get the protected characteristics right – they might refer to other characteristics that aren’t protected or use incorrect definitions.
• They might focus on just one protected characteristic rather than considering all those that are relevant.
• They might define ‘harassment’ too broadly – they might fail to capture the objective elements of the legal concept of harassment, such as whether it’s reasonable for a person to feel humiliated or intimidated by another person’s conduct.

That all sounds quite technical. But why does it matter in the real world?

It matters very much. Because it’s freedom of speech and academic freedom that are ‘within the law’ that have protection. There is no need to point to a specific legal basis for particular speech. The starting point is that speech is permitted unless it is restricted by law.

These provisions in the Equality Act allow us to identify instances where speech may be restricted by law. For example, policies that define ‘harassment’ too broadly, and so conflate what may be lawful speech with harassment, may act to curtail free speech. Where academic staff could be subject to disciplinary action if they contravene such a policy, that policy may interfere with the academic freedom of those staff.

These are fundamentally important issues that determine whether speech may be unlawful.

The publication of our Insight brief is a signal to the sector that these legal issues may need a fresh look. We’re inviting you to do that now, in good time before any new OfS powers come into effect.

What does the future of free speech in higher education look like?

We know that new legislation in England is likely to strengthen the obligations placed on universities and colleges, and their student unions. It would also give the OfS stronger powers to intervene where we have concerns about free speech or academic freedom.

In upholding free speech, universities recognise that they have to uphold the rights of those whose views are seen by some as offensive. The new legislation, if passed, would reinforce this point.

Universities can’t duck difficult questions or the contested debates that swirl around in the higher education sector, and across society more broadly.

The OfS can’t duck them either. And, as I said earlier, we have no interest in fighting culture wars or taking sides.

We must, and will, apply our understanding of the law to the facts of an individual case. We’ll do that with care and the utmost impartiality. We recognise that some of the decisions we’ll make on these issues may be unpopular.

But freedom of speech and academic freedom have always been essential features of higher education in England. And we intend to ensure that remains the case.