The new final OfS regulatory advice on free speech is out

By Doyle Clayton's James Murray and Naomi Waltham-Smith, Professor at University of Oxford and Douglas Algar Tutor at Merton College.

As before, the guidance notes that the Article 10(1) definition has been adopted by the Act and sets this out together with Article 10(2). Crucially, it now adds a statement at [17] recognising that providers that are public authorities must therefore act compatibly with the Convention (we think this is the majority of universities at the least, which is likely what the OfS thinks, as otherwise it wouldn’t make much sense to say this). This is significant for a number of reasons.

First, Article 17 ousts certain speech, such as Holocaust denial, from A10(1). We think it is right to read this as meaning that speech outwith the Convention per A17 is outwith the protection of the Act, not just Holocaust denial. Although A17 is not expressly mentioned as the legal basis, [204] of the revised guidance now clearly states that Holocaust denial won’t need to be secured.

Second, previously there seemed to be two core statements: (1) all speech is “within the law” unless restricted by English law; (2) if there are any RPS they must be taken. There was no mention of proportionality.

The revised guidance introduces a three-step analysis that addresses these two points and then adds a proportionality analysis as a third step. There is now express acknowledgment that lawful speech on that standard need not necessarily be secured (and implicit acknowledgment that it’s not at the height of the health and safety standard for reasonably practicable steps as has been suggested), and express incorporation of a proportionality assessment by reference to A10(2). While it is clarified that “within the law” means English statute and common law, there is also express acknowledgment that prescribed by law in A10(2) includes university contracts, regulations, and policies (including anti-bullying policies) provided they meet the foreseeability and accessibility requirements under A10(2).

This is an advancement on the previous guidance in the direction we recommended in our consultation response. It is now clear that per se lawful speech can potentially be restricted, provided it is done so proportionately.

Finally, it might be framed here as a last resort, only in play in Step 3 in the event that there are no reasonably practicable steps to be undertaken. However, for the framework to make any sense, it must be the case that lawful speech can be restricted, and that proportionality is the stricter and more protective standard (as we said in our response). This is implicitly recognised in [64] where it states that:

Since universities as public authorities must comply with the Convention (as the guidance now expressly acknowledges), the logical corollary of [64] is that institutions obliged to comply with the Convention must consider whether Article 8 (broadly construed to cover lawful bullying and harassment) requires them to restrain Article 10 expression. In such cases, a proportionality assessment will be essential and precede the reasonably practicable steps assessment. Indeed, such an assessment will discharge the reasonably practicable steps duty of Article 8 requires the expression to be restricted. This is powerful reason why proportionality under the Convention, despite apparently being minimised, will play a central role in the most contentious free speech on campus disputes.

From a practitioner’s perspective, the initial impression given is that the additional detail on what the reasonably practicable steps duty requires clarifies that universities will have a fairly broad discretion. Aside from Article 8 or A1P1 cases (where a Convention balancing exercise will typically be antecedent and dispositive of the RPS assessment), a proportionality assessment seems likely to be the real crux of any assessment in a negative interference case.

So there is a lot going on here.

• Do you need to secure Holocaust denial, even if lawful? No.
• Can you restrict bullying behaviour? Yes, provided you do so in line with A10(2), in particular proportionately (which will be difficult on campus and especially for speech that qualifies as academic freedom of expression).