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Key regulatory questions for universities on Freedom of Speech

  • 2 February 2023
  • By Andrew Boggs
  • This blog has been kindly written for HEPI by Andrew Boggs, Visiting Fellow at the Oxford Centre for Higher Education Policy Studies and University Clerk at Kingston University.

The Government’s Higher Education (Freedom of Speech) Bill has now progressed through the House of Lords and the Department for Education, as the sponsoring Department, are in the final stages of considering various amendments. All things being equal, one could assume the Bill will receive Royal Assent at some point this spring. Understandably, the Office for Students are prepping for the new regulatory powers the Bill will give them. It is therefore prudent for universities and other higher education providers in England to begin preparing for the changes the Bill – once enacted – are likely to bring to our operations and processes.

The Office for Students held a briefing event for providers on 15 December 2022, at which point they published an Insight document to guide higher education providers on how to begin preparing for addition to the Regulatory framework for England. However, there remain some questions and issues for providers, and the regulator, to consider before full implementation of a ‘Freedom of Speech’ regulatory regime, as per the expectations of the Bill, can begin working.

The Office for Students will be creating a new condition of registration on freedom of speech for all providers under their purview. As such, the Office for Students expect to staff-up to manage this new condition of registration, including the need to develop a new complaints’ systems for students, staff and external speakers who feel their freedom of speech has been impugned by a higher education provider registered with the Office for Students (OfS). The OfS have reasonably been speaking to the Office of the Independent Adjudicator about how the OfS could divide some of these responsibilities in relation to students and creating new complaints systems for staff and members of the public. 

However, we do not yet know if the Office for Students would expect to take complaints directly from students, staff and the public, or expect universities to have their own complaints processes as the first port of call, as one does with human resource or student complaints. Regardless of the regulatory expectation, it may be advisable for university and other providers to create their own dedicated internal systems for managing freedom of speech complaints as separate from other types of complaints using the text and definitions outlined in the Bill to ensure there is a clean and obvious track to evidence how an institution has adjudicated and considered a complaint before escalation to the OfS or OIA. It could also have an added benefit of evidencing good faith consideration of a complaint that finds its way to the courts.

The OfS will also be expecting universities to do more than publish statements on commitment to freedom of speech and academic freedom, or have policy statements on freedom of speech, and to take ‘active’ steps to meet the Bill’s expectations. This may include having an internal complaints procedure and process as presented above. However, higher education providers may need to consider if it should also extend to mandatory ‘training’ or developmental events for students and staff.

All the above requires resources and money, creating additional costs for universities in a period of a diminishing unit of income from domestic undergraduate students, escalating operating costs and increasing regulatory expectations on other fronts. In addition to these costs, universities may also need to consider budgets for addressing challenges to Freedom of Speech decisions, including legal costs defending action taken by those feeling their Freedom of Speech has been restricted, or fines by the Office for Students when complaints are upheld. It is difficult to imagine a scenario where this does not involve significant cost for higher education providers given competing regulatory and statutory obligations on universities which may conflict with the Bill’s duty to ‘promote’ Freedom of Speech. (This issue was highlighted in my previous HEPI blog on freedom of speech here.)

Finally, there is the issue of the Bill’s reference to students’ unions. The Office for Students are considering how they will approach regulating freedom of speech and students’ unions, as per the Bill. The Office for Students have indicated that it does not intend on registering students’ unions as separately regulated bodies from universities on freedom of speech. The current plan is for the OfS to ask universities if they have a students’ union and then the OfS will deal with the students’ union directly. 

This approach should raise questions for universities. Beyond the power to fine them, the OfS will not have a regulatory tool to use with any students’ union that refuses to engage with OfS requirements or expectations. There are two ways of looking at this. The first is that this approach is entirely appropriate, and the power to fine a students’ union should be enough of a sanction to compel compliance with the new statutory expectations on promoting freedom of speech. An alternate view is that, in extreme situations, universities may be left exposed. In the absence of a clear regulatory relationship between the OfS and a students’ union, the OfS could be forced to rely on a university’s registration with the OfS as the lever for getting at a students’ union, meaning a university’s ‘freedom of speech’ condition of registration with the OfS may be seen as the final mechanism for compelling a students’ union’s compliance by threating the registration of the host university. 

There is still clarity needed on how the regulatory environment is likely to change, assuming the Bill receives Royal Assent in its current form. The anticipated appointment of an OfS ‘Director of Free Speech’ will undoubtedly lead to some clarifications and consideration to these outstanding questions. However, higher education providers can reasonably start to anticipate some of the implications of this significant addition to the Regulatory framework in England. Discussions within our existing representative bodies and mission groups may provide opportunities for sharing the costs of the operating implications of these new expectations.

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