Academic Freedom in English Law: The Tension Between Libertarian and Communitarian Conceptions

The Liberty Framework

The Liberty Framework conceives of academic freedom as a particularly robust species of the general right to freedom of expression. It emphasises negative liberty: the academic, like any citizen, may say anything that is not unlawful, and the role of public authorities (including publicly funded universities) is to protect that entitlement against interference.

The statutory foundation for this approach remains section A1 of the Higher Education (Freedom of Speech) Act 2023 (amending the Education (No. 2) Act 1986), which requires universities to take reasonably practicable steps to secure freedom within the law for their members to “question and test received wisdom and to put forward new ideas and controversial or unpopular opinions”.

Notably, the statutory definition contains no requirement that the opinion be scholarly, evidenced, methodologically sound, or even related to the academic’s field of expertise. Novelty or controversy is sufficient. The Office for Students (OfS), the statutory regulator charged with enforcing these duties, has consistently adopted this broad, libertarian interpretation. In its guidance and enforcement actions, the OfS has maintained that universities may not restrict lawful speech on grounds of quality, civility, or perceived harm to communal standards unless a narrowly drawn statutory exception applies.

This approach draws intellectual support from the classic English common-law tradition of freedom of expression prior to the Human Rights Act 1998, as well as from popular understandings of First Amendment doctrine in the United States. It treats the university primarily as a marketplace of ideas in which the appropriate response to objectionable or erroneous speech is counter-speech rather than suppression.

The Disciplinary Framework

The Disciplinary Framework, by contrast, regards academic freedom as a distinct professional privilege rather than a mere extension of general free speech. On this view, the special protection afforded to academics is justified precisely because they participate in a collective, self-regulating enterprise dedicated to the advancement and transmission of knowledge according to recognised standards of rigour, evidence, and peer scrutiny.

This conception finds its historical roots in the Humboldtian tradition of Lehrfreiheit and Lernfreiheit, and is reflected in constitutional provisions such as Article 5(3) of the German Basic Law, which declares that “Arts and sciences, research and teaching shall be free”. The freedom is granted not to the individual qua individual, but to the individual qua contributor to the scholarly project.

Within the European Convention on Human Rights, the same communitarian character of the Disciplinary Framework is evident in Article 10(2), which subjects freedom of expression to “such … duties and responsibilities” as are necessary in a democratic society for, inter alia, the protection of the rights of others. The European Court of Human Rights has repeatedly affirmed that academic free expression enjoys a “high level of protection”, yet it has never treated that protection as unqualified. Restrictions may be justified where they are proportionate and pursue legitimate aims such as maintaining professional standards or protecting the rights and reputations of others.

Many English universities, supported by certain strands of academic literature and European jurisprudence, have argued that the Disciplinary Framework better reflects the nature of a university as a scholarly community rather than an unrestricted public forum.

The Sussex Litigation: A Case Study in Doctrinal Conflict

The tension between these frameworks achieved concrete legal form in the ongoing judicial review proceedings brought by the University of Sussex challenging a regulatory decision of the Office for Students.

The OfS had proposed to impose a monetary penalty on Sussex in respect of its handling of certain controversial events and expressions. Sussex (as far as we can tell) contents that, by virtue of the Human Rights Act 1998, Article 10(2) ECHR formed part of the legal framework within which its statutory free-speech duties fell to be interpreted. It argued that it was entitled—and indeed required—to balance the Article 10(1) rights of speakers against the Article 10(2) rights of other members of the university community, and against other Convention rights, in a proportionate manner. Categories of lawful but (in Sussex’s submission) legitimately restrictable speech included plagiarism, sustained bullying, and manifestly poor-quality scholarship.

The OfS appears to have rejected this approach root and branch, maintaining that the statutory scheme enacted by Parliament imposed a primary duty to secure lawful speech without the communitarian qualifications inherent in Article 10(2). The case therefore presents the High Court with a direct choice between the two frameworks described above.

The Limits of Polarised Approaches

Neither pure model is without difficulty.

The Liberty Framework offers clarity and strong protection against ideological conformity or administrative cowardice, but risks reducing academic freedom to little more than the general free speech right. It struggles to explain why academics should enjoy any privilege beyond that of ordinary citizens, and it may license the dissemination of demonstrably false or methodologically bankrupt claims under cover of academic freedom.

The Disciplinary Framework, conversely, can coherently justify enhanced protection for academics by reference to the epistemic function of the university, but it carries a significant risk of disciplinary capture. Standards of “rigour”, “quality”, or “collegiality” are not self-executing; they must be applied by someone, and history suggests that disciplinary communities are not always hospitable to radical, interdisciplinary, or politically inconvenient inquiry.

Toward a Principled Synthesis

Recent English and Strasbourg case law suggests the emergence of a possible middle path. Rather than asking simply whether speech is lawful and controversial (Liberty) or whether it has been validated by disciplinary gatekeepers (Discipline), courts have begun to focus on whether the expression in question bears a sufficient connection to the scholarly enterprise to attract enhanced protection. Expressions that are, in principle, amenable to critical engagement, evidence-based contestation, and contribution (however provisional) to knowledge appear to receive particularly robust Article 10 protection, even when offensive or erroneous.

Such an approach preserves the individual-rights foundation necessary to guard against conformity while embedding the professional and communal limitations that prevent academic freedom from collapsing into mere libertarianism. It offers a principled basis for distinguishing protected academic expression from plagiarism, sustained personal abuse, or pseudoscience, without requiring prior disciplinary approval.

Conclusion

English law has not yet definitively resolved the contest between the Liberty and Disciplinary Frameworks. The Higher Education (Freedom of Speech) Act 2023 and the current regulatory stance of the OfS tilt decisively toward the former, yet the incorporation of the European Convention on Human Rights and the lived reality of university communities continue to pull in the opposite direction.

The coming years—shaped by the outcome of cases such as Sussex, by future judicial interpretation of the 2023 Act, and by evolving Strasbourg jurisprudence—will determine whether England adopts one of the broadest academic freedom regimes in the democratic world, or whether it succeeds in forging a distinctly scholarly conception of the right: one that is neither unbounded individual licence nor subservience to disciplinary orthodoxy, but a freedom responsibly exercised in the service of knowledge.