Consultation on the OfS’s proposed regulatory advice and other matters relating to freedom of speech

The draft regulatory advice on freedom of speech can be downloaded here. Below are responses to the consultation questions from the London Universities Council for Academic Freedom (LUCAF).

Question 1: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 1 on the ‘secure’ duties and the ‘code’ duties?

Whilst section 1 of the proposed Regulatory advice recalls the “secure” and “code” duties as stated in the Higher Education Freedom of Speech Act (HEFOSA), it does not include the new “promote” duty. Instead, the “promote” duty is mentioned in a footnote of the proposed Regulatory advice.

The OfS has left the possibility open that it may issue guidance on the “promote” duty in the future. However, this duty is due to take effect for higher education providers from 1 August 2024.

We would encourage the OfS to develop guidance on the “promote” duty. We believe that one of the most important changes that universities can make to support free speech is cultural. Universities should value and actively encourage free enquiry, pluralism, and civil discourse and should communicate these values to staff and students. Steps that may be reasonably practicable for universities to take to promote free speech within the law could include:

Because the “promote” duty does not come under the purview of the complaints scheme or the statutory tort, universities are unlikely to take this duty seriously without concrete guidance.

Question 2: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 2 on free speech within the law?

In our view, the guidance in Section 2 of the proposed regulatory advice is correct in its analysis of what “free speech within the law” means. Some have criticised this part of the guidance for going too far in the protection of lawful speech and have claimed that the guidance is mistaken in its interpretation of “within the law”. In our comments below, we explain why we believe that these criticisms are mistaken both on law and on substance, and what the OfS can do to further clarify some of the issues involved. We hope that the OfS will find our comments useful.

Freedom of Speech is defined in Section 13 of the HEFOSA with reference to Article 10(1) of the European Convention of Human Rights (ECHR). For the purposes of the Human Rights Act (HRA), Article 10 of the ECHR has effect subject to Article 17, which removes free speech protection from certain types of speech (such as holocaust denial). The HRA furthermore requires that laws must be read and given effect in a way which is compatible with the various Convention rights.

The practical meaning of the “secure” duty of the HEFOSA, in light of the above considerations, can therefore be spelled out as follows:

The secure duty: Reasonably Practicable Steps, with particular regard to the importance of freedom of speech, must be taken by providers, constituent institutions and relevant students’ unions to secure free speech unless one of the following apply: a) the speech in question is unlawful b) securing the speech would be incompatible with another Convention right c) the speech in question falls under Article 17.

We believe that the above summary aligns with the analysis of the OfS in the proposed Regulatory advice, as demonstrated by para 8a, para 13, para 14, and para 34. However, it would be helpful if the OfS spells out the above summary clearly.

Some have claimed that “within the law” actually means “that is not restricted by a compatible use of Article 10(2) of the ECHR, such as those prescribed by contractual obligations”. This assumes that “law” in the HEFOSA phrase “within the law” has the same extended meaning as in the ECHR phrase “prescribed by law” (see Gallagher v Secretary of State; Q vs Secretary of State for this extended meaning) and leads to an alternative interpretation of the secure duty, where universities are permitted to prescribe their own law restricting free speech in line with Article 10(2) without any requirement to take reasonably practicable steps in such cases. This alternative interpretation of the secure duty of the HEFOSA, endorsed in https://www.timeshighereducation.com/blog/ofs-free-speech-guidance-english-universities-goes-too-far and https://twitter.com/jamesmurray88/status/1774113468624289817?t=Pr7wD4J3TAkV_YL8XncWcw&s=19, may be roughly summarised as follows:

Alternative Interpretation of the secure duty: Providers and constituent institutions can have internal rules and policies in place that restrict speech in line with Article 10(2) of the ECHR. No Reasonably Practicable Steps need to be taken by them to secure speech that they choose to restrict in this way. In all other cases, Reasonably Practicable Steps, with particular regard to the importance of freedom of speech, must be taken by providers, constituent institutions and relevant students’ unions to secure free speech unless one of the following apply: a) the speech in question is unlawful b) securing the speech would be incompatible with another Convention right c) the speech in question falls under Article 17.

It has been further argued that the Hansard record on 7th December 2022 supports this alternative interpretation because Baroness Barran, the government representative at the House of Lords, is quoted as saying that the law “does not change how Article 10(2) applies”.

The remainder of our response to Q2 comprises a detailed consideration of this alternative interpretation, which we argue is mistaken on multiple levels and would have highly negative consequences for academic freedom if adopted.

First, while Parliament chose to define “freedom of speech” in accordance with Article 10(1) of the ECHR, it chose not to invoke Article 10(2) of the ECHR in defining “within the law”. This strongly suggests that “within the law” in the HEFOSA has the usual meaning of “unless prohibited by common law or statute”, and not the extended meaning claimed by the alternative interpretation. This aligns with what Earl Howe, the government’s representative at the House of Lords, stated on 31st October 2022 with regards to this legislation, “The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech – anything within the law”.

Secondly, the quote by Baroness Barran does not support the alternative interpretation either. The fuller quote is:

“People are free to say what they want, so long as their speech is not prohibited under the law. […] I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies. […] This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to ‘freedom of speech within the law’ in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty ‘to respect the rights of others’, as specified in the amendment.”

When taken in context, the statement by the Baroness is clearly compatible with the first interpretation of the secure duty. In fact, this statement explicitly rejects the idea that adopting the Article 10(1) standard for the definition of “freedom of speech” would permit Article 10(2) restrictions with the aim of respecting the rights of others. This demonstrates that, under the government’s interpretation of the Bill, only countervailing legal duties (set out in statute or common law) or the “reasonably practicable” limitation could curtail the duty to secure freedom of speech.

Third, and crucially, the idea that universities can simply prescribe their own law restricting free speech (and that no reasonably practicable steps to secure speech need to be taken in such cases) defeats the whole point of the Act. The reason parliament enacted HEFOSA was that universities were not protecting freedom of speech adequately. HEFOSA would fail to remedy this problem if it allowed universities a free hand to say what is and isn’t within the law.

Fourth, the wording of the HEFOSA implies a defined scope of what is within the law (and therefore requires reasonably practicable steps to be taken to secure it) and what isn’t. However, Article 10(2) does not create a defined set of prohibited speech, nor does it create rights or obligations. It simply allows a signatory state, if it wishes, to restrict speech compatibly with the Convention, in a range of circumstances and for a range of reasons, subject principally to proportionality. It would be impossible to clearly identify what is within the scope of the HEFOSA if “within the law” allows for the full range of permissible Article 10(2) restrictions.

More generally, the Convention provides a floor, not a ceiling, to our free speech rights. In passing the HEFOSA, Parliament has provided greater protection of free speech rights than required under Article 10 of the Convention. Article 10(2) case law may help in determining the floor of free speech protections under the HEFOSA but it does not set the ceiling. Universities can still restrict lawful speech under HEFOSA in cases where securing such speech is not “reasonably practicable”, but this gives less scope for interference than the standard Article 10(2) process. We refer the OfS to our answer to Question 3 for a more detailed consideration of this point.

For all the above reasons, we believe that the alternative interpretation is untenable and contrary to the plain meaning of what parliament intended. Nonetheless, given the risk that a court may agree with the alternative interpretation if pressed to do so by a judicial review brought by providers, some have claimed that it would be better for academic freedom if the OfS simply embraces the alternative interpretation and argues that the scope of Article 10(2) interference is extremely limited in academic contexts (see https://twitter.com/jamesmurray88/status/1778431899544715605?t=FU-LENPI2uTWRMFOdqDtEw&s=19). We now go on to explain why, in our view, such a step, if taken by the OfS, is likely to have highly negative consequences for academic freedom in our universities and will lead to academic freedom protections being denied to precisely those cases that need it most.

The European Court of Human Rights (ECtHR) case law around Article 10(2) imposes significant tests before academic speech can qualify as “academic free expression” and gain the highest protections. According to ECtHR case law (see the main judgement in Erdogan vs Turkey and the grand chamber judgement in Aksu vs Turkey), for contested expression to qualify for academic free expression protections, it needs to satisfy minimum quality standards and fall within the academic’s area of research and/or flow from their professional expertise and competence.

Academic freedom was defined in the 1972 Shils report from the University of Chicago as “the freedom of the individual to investigate, publish, and teach in accordance with his intellectual convictions.” The HEFOSA defines academic freedom for academic staff as “freedom within the law to question and test received wisdom and put forward new ideas and controversial or unpopular opinions, without facing the risk of losing their jobs or privileges or the likelihood of their securing promotion or different jobs at the provider being reduced”. Academic freedom does not imply freedom from criticism. Academic scholarship can, and should be, judged by colleagues in the field and such expert judgements will continue to have a vital role in academic self-regulation via peer-review, recognition and so on. However, in our view, activation of the core legal protections of academic freedom should not be based on perceived core expertise or standards.

If a court were required to ascertain academic expertise and professional standards before it could enforce academic freedom rights, it would be likely to ask a group of mainstream academic experts. If the work challenged academic orthodoxies on controversial or sensitive topics, these experts would be quite likely to take a negative view. Galileo's theories were considered absurd, foolish and dangerous in their day and we have no doubt that radical theories which challenge the mainstream consensus on highly sensitive topics would be similarly denounced today by the majority of mainstream academic experts, regardless of merit.

Contingency of core academic freedom protections on supposed research or professional expertise would therefore place huge swathes of work at risk, such as interdisciplinary work or work where a scholar in one discipline challenges orthodoxies in another. Moreover, there is often a lack of clarity about professional standards. Galileo’s heliocentric view of the universe was determined to be “foolish and absurd in philosophy” in 1616 by a group of expert theologians known as “qualifiers”. The theory of plate tectonics was rejected as absurd and meritless by the leading scholars of the day when Alfred Wegener published his book in 1915. David Card and Alan B. Krueger’s contrarian 1995 work on the minimum wage was initially likened to “repealing the law of gravity” by mainstream economists who claimed that it went against fundamental economic theory that no “self-respecting economist” would dispute – yet this work later won a Nobel prize. An important recent paper by thirty-nine prominent scientists shows that “soft censorship” motivated by political or ideological concerns is common in science and is frequently couched in the language of scientific criticism. Moreover, in certain arts and humanities fields where the influence of postmodernism is felt, there are few areas of consensus as to epistemology or conceptions of truth, and as a result, scholarly standards often reflect the influence and power of certain groups in certain institutions. There is every reason to believe that such protagonists would exploit any loopholes relating to narrowly defined “expertise” to impose further censorship.

The existing case law of the ECtHR around Article 10(2) is illuminating. In Aksu vs Turkey, the Court put significant weight on a report prepared by seven university professors and used the validation of a rigorous research methodology by these mainstream experts as the basis for activating academic free expression protections. Conversely, in I.A. vs Turkey, the Court ruled against the author of a book convicted of blasphemy on the basis of a single mainstream theology expert’s opinion that the book in question was “devoid of all academic rigour”. ECtHR case law (Aksu vs Turkey, Vejdeland vs Sweden) also suggests that research that may be interpreted as negatively stereotyping certain groups may lose academic free expression protection under an Article 10(2) proportionality analysis, even if no personal attacks are involved.

HEFOSA was deemed necessary because universities were not protecting freedom of speech and academic freedom adequately in the existing legal framework. A case in point is that of the postdoctoral researcher Dr Noah Carl, whose work drew on disparate fields of research in psychology, psychometrics, sociology and economics. Carl was fired by the University of Cambridge in 2019 following a vicious mobbing campaign that denounced his work – without providing any evidence – as “ethically suspect and methodologically flawed” and a subsequent internal investigation that concluded that he was guilty of “poor scholarship” and that his appointment could “bring the College into disrepute”. This investigation, led by a veterinary scientist, justified the above conclusions on the basis that Carl carried out “problematic” research, such as producing a paper on the accuracy of commonly held stereotypes about the characteristics of different groups, despite the fact that, for example, the discipline of social psychology has long studied the topic of stereotype accuracy.

We believe that if universities themselves are entitled to enact restrictions on freedom of speech under their policies that would be justifiable under Article 10(2) of the Convention had they been enacted by Parliament – even though Parliament has not decided to do so, and indeed  may have explicitly decided not to do so – it would be a huge and dangerous loophole in the HEFOSA that will be used by universities, especially in the face of activist mobbing, to deny academic freedom protections to iconoclastic research in controversial topics (such as sex/gender and race). Yet, it is precisely such works that most need the protections of law.

On the other hand, if the OfS sticks to its current position, university policies will begin to slowly align with its guidance, leading to a new de facto and de jure standard of protection for free speech and academic freedom whose limits are broader than the Strasbourg jurisprudence. Providers will learn to expect to take reasonably practicable steps to secure freedom of speech unless unlawful or incompatible with Convention rights – which is no more and no less than what the Act demands.

Therefore, we urge the OfS to stand firm in its current analysis of what “free speech within the law” means. The benefits of such an approach far outweigh any risks. For additional clarity, Section 2 of the proposed Regulatory Advice should, in our view:

Question 3: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 3 on what are ‘reasonably practicable steps’? If you disagree with any of the examples in this section, please state reasons for thinking that the relevant legal duties do not apply to that example in the way that we have set out.

  1. We welcome the clear message from the OfS (para 34) that if a step to secure freedom of speech within the law is reasonably practicable for a provider, constituent institution or relevant students’ union to take, then they must take it.
  2. We also welcome the clarification that the requirement to take “reasonably practicable steps” includes taking positive steps (para 35). The distinction between the positive and negative steps is a useful one. This could, however, be stated somewhat more emphatically and it could be clarified that some of the factors mentioned here to assess reasonable practicability (such as financial constraints or resources) are unlikely to be relevant for negative steps to secure freedom of speech. For example, it seems implausible that a university could plead that it would be impracticably costly to refrain from firing a member of academic staff for expressing a lawful viewpoint.
  3. Para 36 of the proposed regulatory advice states that

    “Factors that are relevant to an assessment of whether steps are reasonably practicable may include, among other things, the following:
     
    • the extent to which taking the step, or not taking it, would secure or restrict freedom of speech;
    • the practical costs (time, money, personnel, resources) of taking the step, or of not taking it; and
    • financial constraints.”
    These factors seem fine to us. However, we would like to suggest that the OfS consider an additional factor for inclusion here around whether a step (or a decision to not take a step) is content-neutral. The OfS should set guidance around this as sketched below.

    It is generally acknowledged that universities are entitled to impose reasonable limitations on the time, place and manner of expression (e.g. forbidding the use of amplifiers in quiet areas, forbidding talking loudly in the library). These limitations are content-neutral, i.e., they do not depend on the subject matter of the speech. We believe that such restrictions can be justified as long as they are narrowly tailored to serve a legitimate interest and are not unnecessarily onerous. The OfS should emphasise in the proposed Regulatory advice that any restrictions on lawful speech must be narrowly tailored to serve a legitimate interest. The OfS should also consider adding the following factor as relevant to an assessment of whether a step is reasonably practicable: “the extent to which taking the step, or not taking it, does not discriminate based on subject matter”.

    There may be rare occasions when a step (or the decision not to take one) involves content discrimination. However, the OfS should set unambiguously clear and strong guidelines around this. Viewpoint discrimination is an egregious form of content discrimination in which the target is not just the subject matter, but particular views taken by the speakers. This should never take place in a university context around lawful speech. We believe that the OfS should make absolutely clear that if a restriction on (or any decision to not take a step to secure) lawful speech is based on the content of the speech, then it must a) not discriminate based on viewpoint, b) be narrowly-tailored to serve a compelling interest around some basic functions of the university.  

    As a final point, as mentioned earlier, Article 10 of the ECHR sets a floor for our free speech protections, and therefore places a ceiling on any restrictions on lawful free speech. Therefore, restrictions on lawful free speech imposed by universities can under no circumstances go beyond what would be permissible under Article 10(2). In addition – unless the speech is unlawful, incompatible with Convention rights or falls under Article 17 – restrictions on speech will only be permissible if securing such speech is not reasonably practicable. Overall, this gives less scope for universities to interfere with lawful free speech under HEFOSA than under the standard Article 10(2) process.

  4. The extent to which a step is reasonably practicable may also depend on whether any competing Convention rights are in play. In most instances, competing Convention rights are adequately protected by UK existing law, so that a balancing exercise will be unnecessary. However, in some cases this may not be true and competing Convention rights may require a balancing exercise. In our view, the best way to deal with that would be for the OfS to set clear guidance around how providers can adjust or balance the reasonably practicable steps in such circumstances. This adjustment need not (and in our view should not) exactly follow ECtHR proportionality analyses around Article 10(2) (which, as we have seen in the answer to Question 2, carries serious risks for academic freedom) but rather could incorporate principles of viewpoint-neutrality while ensuring that there is particular regard for the importance of freedom of speech.
  5. As a final point, all the examples given in the proposed Regulatory advice involve steps that may be reasonably practicable for universities to take to secure free speech. We suggest that the OfS should also include a couple of examples of steps that may not be reasonably practicable for universities to take. Examples here could involve a university rule prohibiting talking loudly in the library or a policy against derailing a mathematics seminar by persistently raising an irrelevant political topic. These are cases where the speech in question may be lawful but a step to secure it may not be reasonably practicable. A rule against talking in the library would be content-neutral and clearly serves a legitimate purpose. A rule against persistently raising irrelevant political subjects during a scheduled mathematics seminar is not content-neutral but is viewpoint-neutral and in our view may be justified on grounds that it serves a compelling interest related to the basic functions of the university around research and teaching.

    Additional examples of steps that may not be reasonably practicable for universities to take could involve securing speech whose sole purpose is to shout-down or silence speakers (the “heckler’s veto”) or speech that takes the form of a vicious, sustained and highly personal attack on a colleague. We believe that universities can have rules restricting such speech, but that such rules – in cases where the speech is lawful – must be viewpoint-neutral. If the OfS does not provide sensible examples of steps that may not be reasonably practicable to take, universities are likely to underestimate the extent of their free speech duties, leading them to impose internal restrictions that are more speech-limiting than necessary.

Question 4: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 4 on steps to secure freedom of speech? If you disagree with any of the examples in this section, please state reasons for thinking that the relevant legal duties do not apply to that example in the way that we have set out.

Overall, we found the guidance in Section 4 of the proposed Regulatory advice robust, relevant and highly encouraging. We do, however, have some areas of concern as well as some comments on additional items we believe this section should include, as set out below.

  1. Research Ethics Committees: Because of its gatekeeping role, research ethics approval presents a significant challenge to academic freedom. In addition to blocking research outright, the ethical approval process can be used to subtly influence research design in ways which may reduce the scientific value of that research and curtail academic freedom. See https://thecritic.co.uk/edi-contra-science/ for a recent example of this.

    The proposed Regulatory advice does mention research ethics in a few places, but mainly in the context of making sure that research ethics committees are aware of free speech duties and that research ethics policies point to the Code of Practice for free speech (para 75, para 102, para 115). These are of course important but they are not enough. We believe that without more concrete guidance around their actual operations, ethics committees will continue to act in ways that curtail academic freedom.

    There are reasonably practicable steps providers can take to ensure that their ethical review and approval procedures operate in a way that secures freedom of speech within the law, such as:
    • Ethical review and requirements should be proportional to the potential risks of the research. Research may lead to unwelcome findings, including for research participants, the institution, or external partners, and this should not be viewed as a risk. Institutional reputation should not be considered by research ethics committees as a relevant factor. We think para 105 is extremely important and welcome in this regard. Its relevance to the ethical review process should be emphasised.
    • Ethical review should be focus on what is ethical rather than on the quality of research as the latter is not within their remit and can be used as a gatekeeping tool to censor research proposals.
    • Research ethics committees should themselves consider the risks for academic freedom from any decisions they take and the consequences of those decisions.
    • The ethical review process should be transparent.
    • The ethical review process should be monitored closely for evidence of any bias or unnecessary gatekeeping.
    We urge the OfS to consider including the above points in the guidance, and to provide an example where a provider may not have taken steps to secure freedom of speech within the law in the implementation of its procedures and policies for the ethical review of research.
  2. Freedom to publicly criticise one’s institution and colleagues: The proposed Regulatory advice mentions reputational concerns in passing in example 2 (Section 3), but we believe that this topic is important enough to demand a subsection of its own within Section 4.

    Freedom of speech is often undermined by higher education providers because of supposed clashes with values expressed in policies and practices and the risks to the reputation of the provider by allowing controversial speech. We therefore invite the OfS to make it clearer in Section 4 of this guidance that freedom of speech within the law should always take primacy over reputational risks to the university.

    Stipulations that academics must not “damage the reputation of their institution” are common in internal policies. To the extent that such stipulations apply to lawful speech, they are open to misuse and may serve to limit the range of thought, teaching and research at our universities. In our view, unless properly qualified, such policies may lead to a chilling effect and thus comprise a violation of the duty of providers to secure freedom of speech within the law. It is important here to recall that the ECHR provides a floor for our free speech rights and is particularly strong in protecting academics rights to criticise their institutions (see Kharlamov vs Russia).

    Therefore, the guidance should make clear that an academic is free to publicly criticise the institution which employs him/her, is under no obligation to concur with the views of others who work in the same institution, and is furthermore free to express or publish critiques of colleagues’ work. We would welcome an example around institutional reputation and internal criticism in Section 4.
  3. External domestic partnerships: At least six worked examples in Section 4 relate to interference or pressure coming from foreign governments or organisations or from students supporting these (example 3, example 4, example 18, example 23, example 24, example 26.) There is one more example (example 29) relating to the risks of accreditation to a charter body with links to the fossil fuel industry.

    We believe it would be helpful to have a few more examples relating to the potential risks to free speech from universities entering into domestic partnerships, such as with domestic industry, public bodies, arts and heritage institutions, estates of individuals, funding bodies, and so on. Particularly risky from the point of view of free speech are associations or relationships with campaign organisations which require or encourage a university to endorse certain views or opinions on contested subjects, or even to supress or punish dissenting viewpoints. Furthermore, there are serious risks for academic freedom when some external partners may seek to make funding contingent on avoiding certain types of outcomes of the research in question – this issue is a significant omission from the guidance. The guidance should include an absolutely clear statement of the vitality of academics’ critical independence and freedom in these contexts, and the reasonably practicable steps that higher education providers can take to secure speech in the event that external partners remove funding, limit access, or add censorious conditions.
  4. Institutional neutrality: If a higher education provider takes sides in a controversial issue, it necessarily formally sets itself against the other position. This gives rise to a chilling effect for people who hold that other viewpoint, and also creates an environment in which attacking people for their viewpoints is acceptable. To avoid chilling speech, providers therefore need to maintain sufficient neutrality on matters of polarised public debate. Providers should also ensure that they do not give preferential financial or organisational help to events adhering to particular ideological perspectives. In other words, we believe that the university (and its departments and formal units) must refrain from taking substantive positions in contested political debates, as to do so would undermine its vital function as a forum for constructive disagreement. This need not inhibit individual academics, including those in senior positions, from taking their own positions, so long as it is made clear they are speaking for themselves rather than the institution. We encourage the OfS to include an example where failure to maintain institutional neutrality may constitute a failure to take reasonably practicable steps to secure speech within the law.
  5. Freedom of individual academics in teaching and supervision: We believe in the importance of individual academics being able to determine for themselves the nature of their teaching, as a key component of their academic autonomy. We recognise that it is reasonable to require that such academics teach to the syllabus, cover the required content as specified in programme or module specifications, and that it is important that coherence and consistency are features of academic programmes. Beyond this, however, we believe that teaching academics should be given maximum freedom to determine the mode of teaching, the precise areas covered, and the reading lists, rather than having these determined “from above”. Institutions should work to protect teaching freedom as a vital component of academic freedom, as has been made explicit in the history of the latter concept – see https://ianpace.wordpress.com/2022/09/27/academic-freedom-definitions-and-risks/. It is notable that the guidance does not say a great deal specifically on how the “secure” duty relates to teaching, in comparison to other considerations. We would welcome one or more examples in the guidance indicating this.
  6. Artistic freedom: There is almost nothing in the guidance on freedom of academics relating to practical artistic work. This accounts for a large percentage of research outputs (and REF submissions) in many arts departments at universities in England, and artistic work does not necessarily entail the same types of distinctions between form and content as can be found in more conventional academic outputs. Some artistic work produced in universities, linked to particular political convictions, has been refused an airing in various institutions. We urge the OfS to consider how the “secure” duty may apply in such contexts, and provide a relevant example. We would recommend the document from the Council of Europe report on the freedom of artistic expression – https://rm.coe.int/free-to-create-council-of-europe-report-on-the-freedom-of-artistic-exp/1680aa2dc0 – as potentially helpful in this respect.
  7. Examples where the OfS understates the secure duty: We believe that in the following instances, the OfS should use stronger language to accurately portray the nature of the obligations.
    • In Example 1, “University B may have failed” should be “University B is likely to have failed”.
    • In Example 8, “this may have been a breach” should be “this is likely to have been a breach” and “may now be a reasonably practicable step” should be “is likely to now be a reasonably practicable step”.
    • In Example 9, “University A may be restricting” should be “University A is likely to be restricting.”
    • In Example 18, “may deter students and staff” should be “is likely to deter students and staff” and “may ensure” should be “is likely to ensure”.
    • In para 96, we believe that an appropriate and effective internal complaints system in respect of internal free speech complaints together with an internal webpage with details of the provider’s free speech policies (which could double as a complaints page) is a reasonably practicable step.

Question 5: Do you have any other comments on our proposed Regulatory advice?

We would like to commend the OfS for producing what is overall an inspiring, liberating, and extraordinarily positive document. We believe that this Regulatory advice will make a real difference to the environment around free speech and academic freedom at higher education providers in England. We urge the OfS to stand firm against high-level institutional pressure to water down this guidance.

This response has been prepared by the London Universities’ Council for Academic Freedom (LUCAF) in consultation with its members. LUCAF is an academic-led and non-partisan organisation committed to supporting academic freedom. The LUCAF membership currently includes over 140 academic staff from various London universities, who all had an opportunity to comment on this response before submission.

In comparison, submissions to this consultation that the OfS may receive from universities or advocacy organisations for universities (such as the Russell Group and Universities UK) will typically not have involved any efforts to consult with the academic staff of the universities concerned.

Question 6: Do you have any comments on our proposed amendments to the OfS regulatory framework?

No comments

Question 7: Do you have any comments on our proposed approach to recovery of costs?

No comments.

Question 8: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.

No comments.

Question 9: In your view, are there ways in which the objectives of this consultation could be delivered more efficiently or effectively than proposed here?

No comments.

Question 10: Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?

No comments.

Question 11: Do you have any comments about any unintended consequences of these proposals, for example, for particular types of provider, constituent institution or relevant students’ union or for any particular types of student?

No comments.

Document date: 16/05/2024

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