The OfS’ free speech guidance for English universities goes too far

As a philosopher interested in the intellectual history of toleration and religious belief, it is only fitting that the Office for Students’ first director for free speech, Arif Ahmed, should introduce his draft regulatory guidance with a reference to that great champion of liberty, John Stuart Mill.

For Mill, civil liberties, including freedom of opinion and expression, are so sacrosanct that the state should refrain from restricting even false, offensive or intemperate speech. Only one exceptional reason would justify interfering in them: prevention of harm to others, individually or collectively.

There has been ample scholarly debate and critique about the exact scope of Mill’s rather unsubstantiated “harm principle”. Whichever argument one endorses, the current position in English law, which incorporates the European Convention on Human Rights (via the Human Rights Act) and its jurisprudence, can be seen to embody a version of this principle, carefully circumscribed without being too expansive or too restrictive. In the Lords debate that led to the government putting the convention’s definition of freedom of expression into the Higher Education (Freedom of Speech) Act, Lord MacDonald noted that Article 10 on free speech and its limits was “suitably qualified and well understood by the courts”.

It is, apparently, less well understood by the OfS. The draft guidance quotes the scope for restriction in Article 10(2) but without even commenting on it, let alone explaining or applying the carefully calibrated proportionality analyses found in the case law of the European Court of Human Rights. Mill was interested in protecting exactly those freedoms – of personal development and autonomy, of thought, conscience and opinion – against which the law requires the courts to balance freedom of expression.

We worry that the OfS has overlooked this crucial limit amid the high expectations it sets for institutions to satisfy it that they have complied with their core duty to take reasonably practicable steps to secure free speech within the law. A key part of the guidance states: “All speech is lawful, i.e. ‘within the law’, unless restricted by law. Any restriction of what is ‘within the law’ must be set out in law made by, or authorised by, the state, or made by the courts. This includes (for instance) provisions of the Equality Act 2010 prohibiting discrimination. It also includes common law on confidentiality and privacy…the starting point is that speech is permitted unless restricted by law.”

What it doesn’t say is how universities and students’ unions should proceed beyond this starting point. Crucially, it doesn’t mention the provisions of the convention that allow the right to free expression to be restricted either because it falls within Article 17 (destruction of rights) and is denied any protection at all, or because it is “prescribed by law” (which includes employment contract and policies) and is a proportionate means to achieve one of the legitimate aims listed in Article 10(2), including protecting the rights of others.

The worked examples in the guidance are designed to help institutions and students’ unions understand their duties, but they neither touch on expression excluded by the convention (despite Holocaust denial attracting much popular attention during the act’s passage) nor recommend any proportionality analysis to decide the extent to which the convention might allow the lawful restriction of speech.

Mill would be scratching his head. Two examples illustrate how crucial this omission is. First, consider a student who outright denies the Holocaust during a history seminar and gravely offends other students, who complain. The Equality Act 2010 usually doesn’t apply to students, and the speech isn’t otherwise unlawful. Is the institution, however, under an obligation to secure that speech by refraining from reprimanding the offending student? A literal reading of the guidance would potentially lead to the disturbing conclusion that it is.

Second, imagine a university employee launches a sustained, vicious and highly personal attack online on another colleague, who is devastated and complains to human resources. Let’s suppose the attack isn’t strictly unlawful under English law (for example, with respect to the Equality Act, because the conduct is not related to a protected characteristic), but it is a classic case of bullying under most institutions’ anti-bullying policies. Does the institution need to secure this expression by not intervening to stop the bullying? Again, there seems to be a real risk that the guidance implies that it does.

One might counter that such limits to free expression are all well understood and, as such, go without saying. Respectfully, we don’t think this is good enough, especially given that universities and students’ unions are looking to the regulator to offer some clarity on potentially tricky balancing exercises.

While the guidance warns against misrepresentation and oversimplification, it does itself tend to oversimplify by (at best) glossing over or (at worst) consciously ignoring the caveats to freedom of expression described by the convention. We think that these omissions should be corrected. Institutions are entitled to understand – and to appreciate that the OfS understands – how the law on freedom of expression operates and interacts with provisions designed to be bulwarks against harm. If not, this might be a point on which institutions seek clarification from the courts, which would be an inauspicious start for the new free speech champion.

The OfS need not be fearful of this approach. There’s ample textual evidence that Mill would probably agree with it. The regulator can set a very high bar for interference in academic contexts, where critical debate is to be fostered, and especially for academic freedom of expression. While the convention stipulates boundaries and qualifying criteria for such expression (in particular, that it should fall within or flow from the academic’s research or professional expertise and meet minimum professional standards), that is no bad thing. The boundaries of academic freedom should be carefully guarded to justify the authorial power that academic expression is accorded and to preserve its societal and epistemic value.

Unfortunately, we see limited appreciation in the OfS guidance of this more fine-grained handling of academic freedom of expression as a distinct subset of free speech rights under the convention. This is an unfortunate omission. Harm might be the result if the regulator erodes the importance of free and critical academic enquiry by granting a soapbox to anyone claiming that mantle without taking its responsibilities seriously.

James Murray is a research fellow in law and policy at the University of Buckingham and legal director at Doyle Clayton Solicitors. Naomi Waltham-Smith is professor at the University of Oxford and Douglas Algar Tutorial Fellow at Merton College.