Higher Education (Freedom of Speech) Act: How to be Day One ready

Simon: OK, welcome to our next podcast. My name's Simon Henthorn, I'm the head of education at Doyle Clayton. Now, I'm sat down today with James Murray, James is a Legal Director in our education team, he's also an expert in the law around free speech on campus and academic freedom.

As I'm sure a lot of you are aware, there's been a new bit of legislation on this area, specifically the Higher Education (Freedom of Speech) Act. Now, this act applies to all higher education providers who are registered with the Office for Students and their various constituent colleges, schools, pools, etcetera. The legislation comes into force on the 1st of August this year.

In short, the Act introduces a range of enhanced and new duties for providers with respect to free speech on campus and academic freedom, as well as new conditions of registration which’ll be monitored by a new Director of the Office for Students. There's also going to be a complaint scheme which is similar to the existing office, of the Independent Adjudicator scheme. So without any further ado, I'm going to hand over to James and he's going to tell us a little bit more about what is the act actually changing and who's going to be impacted.

James: Thanks, Simon, it's great to be joining you this morning to talk about the new Free Speech Act. So the core compliance duty under the act is going to be very similar to an existing duty which universities are currently subject to, that is the duty to take reasonably practicable steps to secure free speech on their campuses. The new duty under the act is a somewhat expanded version of that duty, it introduces new duties around academic freedom specifically. In particular, that affects how academic staff are recruited, promoted, disciplined and dismissed. There’s also some other new prohibitions, such as on non disclosure agreements, relating to certain matters involving bullying and harassment. On top of that, the duty to have a Free Speech Code of Compliance is being slightly updated to introduce new obligations on universities, such as setting out what their values are relating to free speech and academic freedom, but this is broadly similar to the duty to which they are already familiar.

The entirely new duty which the act introduces is the one to promote the importance of free speech and academic freedom on campuses. We don't yet have many details as to what precisely will be required to comply with this duty, but the government has suggested that it will be about introducing a culture of free speech on campus and embedding that at all levels of the institution.

The OFS have recently released some draft guidance on what might be required under the various new duties, and that guidance suggests that training at all levels of the institution will be very important as well as promoting the importance of free speech in induction materials for students and staff, as well as circulating policies which promote the importance of free speech and academic freedom.

On top of those new duties, the way in which I think the act will really make a significant difference is in relation to the new enforcement mechanisms, these are several fold. The first will be a statutory tort which will allow employees, students, speakers, etcetera, who feel that universities have violated their rights under the new act, will be able to sue for compensation in the High Court. There will also be a free to use complaint scheme which will be run by the OFS and headed up by the new Director of Free Speech and Academic Freedom, which is Professor Arif Ahmed of Cambridge University; this scheme will allow people who bring complaints to seek recommendations from the OFS as to how universities should in fact comply with their duties and uphold their free speech. The government have suggested that may include paying compensation to those who have had their rights violated, and may even include reinstatement of employees who have been dismissed in breach of the free speech duty.

Backing up all of these new requirements will be a revised regulatory regime which imposes new duties on the Office for Students to regulate universities in this sector, and new registration conditions for universities which will require them to comply with the new law. On top of all of that, the scope of the duty has also been enhanced, it will now apply to constituent institutions of the university, which most commonly will be colleges, for example Oxford or Cambridge universities, as well as certain students’ unions as well.

Simon: OK, thank you very much James, it sounds like that is a lot changing in this area. You mentioned that there's some guidance that has just come out, are there any other sources available at all to institutions to get up to speed with this?

James: So, so far we don't have much of a steer on what is going to be required under the new Act. We have some statements from the government as the Act was passing through the House of Commons and the House of Lords. I think the guidance from the OFS, which was released very recently, is perhaps the most useful guide we've had so far. Now this guidance shows that the OFS will be taking the obligations regarding free speech extremely seriously and will be requiring a great deal of work from universities in order to be compliant. It seems like the OFS will be setting a very high bar indeed in terms of reviewing breaches of the obligations under the Act under the new complaint scheme. Now if we if we take a brief look at what that guidance has imposed, there are a few points which I think are worth highlighting.

The first is that there's a key expectation that institutions have ensured adequate training on free speech and academic freedom. Now, by adequate training, the OFS expects institutions to keep their people up to date on the latest in terms of the protection for free speech and academic freedom, as well as its interactions with the Equality Act, which can be very challenging in particular for universities to navigate. And the OFS has also made clear it expects everybody at all stages of various processes to be up to date with such training. So, for example, those involved in admissions, appointment promotion, grievances, disciplinaries and everybody who's deciding from policy and institution.

The OFS has also given some clear steers what it expects in terms of governing documents and policies and procedures, etcetera. Any topic which might feasibly touch upon or restrict free speech or academic freedom must be reviewed and unlawful provisions must be removed. So in particular, one might think of disciplinary or harassment policies; again, there is the tricky interaction there with the prohibition on harassment under the Equality Act. It also recommends removing blanket policies which might impact upon free speech, and there for example the OFS has cited the use of preferred pronouns. On top of all that of that, it's also suggested that complaints procedures such as report and support must be reviewed and potentially removed if they impact upon free speech or academic freedom. And governing documents, to the extent that they touch upon free speech, must be reviewed and updated if necessary to take account of the new legislation. So in short, there is a lot that needs to be done in advance of day one in order to ensure that institutions are ready for the new law.

Simon: It's a good point, James, day one, it's actually not that far away, we're talking about the 1st of August here, aren't we? What do you recommend that institutions prioritise?

James: That’s a really good question and given the short timeline we’re talking about here, and it's worth bearing in mind that the guidance is just in draught form and has only just been opened up for consultation; there is going to be a very short time for institutions to get their house in order.

Now the first priority should be the free speech code of practise and associated policies, now I say those should be the first port of call because the new act introduces very specific requirements for what they should include, so for example, they must now include a statement of values relating to free expression. Now that may be something which is going to be contentious and may be something which will be subject to internal consultation to agree the precise wording, there may be various stakeholders within the institution which want to be involved in that discussion; so all of that suggests that universities need to get on with preparing. 

Another issue is the conditions as to when security costs may be charged to event organisers. This is a slight change to the previous law, where it was held that in certain circumstances universities could charge event organisers for security costs, but now they can only do so in exceptional circumstances, and it will be for the institutions themselves to determine what those circumstances are, but it must set them out in advance in its free speech policy.

Simon: Sorry James, just pausing there, why are security costs relevant to this area?

James: So the reason security costs are relevant here is because a large part of the Acts’ compliance relates to the organising of external speaker events and external speakers who might be invited to speak at universities. Many of the controversies over the last few years have related to the invitation of controversial speakers to campuses and resulting protests, which have required sometimes significant security costs. We understand that the government is seeking to clamp down on institutions revoking permissions for controversial speakers because the security costs are cited as being too high, or the institutions have tried to impose those upon small groups organising controversial speakers visiting.

Simon: OK, thanks so much, James. Any other key areas that institutions should focus on to be ready for day one?

James: Yes, a key issue which I come across frequently when advising institutions relates to the protection they already have in their governing documents and policies for academic staff. Now under the Act, the definition of who are academic staff is very broad and will relate to anybody who is teaching or researching and engaged to do so by the institution. However, many institutions only extend enhanced protection to certain categories of academics, generally more senior academics who have longer tenure or more senior positions. If universities were to rely upon that distinction after the new law comes into force, they could find themselves in hot water very quickly if they don't apply the same protections to junior academics as well as more senior academics.

Simon: So James, that could be quite a significant cultural change?

James: Yes, I think it will, and I think it also ties into the general cultural issues around casualisation of workforces, particularly at the junior end of academia. The assumption has been that they've had less employment law protection to date and to a certain extent at least as far as free speech and academic freedom is concerned, this is going to change that approach and that cultural approach in particular.

Simon: Thank you, James. What else is there going to be, presumably there is going to have to be a wholesale review of the key policies and procedures?

James: Absolutely, I think that’s very clear. So in particular there will need to be updates and thought given to recruitment, disciplinary and dismissal policies as well as, as I mentioned earlier, harassment policies. Now, what's very interesting from the recent draught OFS guidance is the OFS is clear that if you give a misleading impression of what the law says about harassment provisions, under the Equality Act, in particular if you do not make it clear that there is an objective element to the harassment test, then that in itself may be a breach of the new duty; so institutions need to be very careful with drafting those policies very carefully. Now, in my experience of working with universities, that is something which I've noticed is a consistent problem across harassment policies, so it will need to be some things that will need to be reviewed to make sure there is compliance with the new law.

Simon: OK, so we now sort of fast forward to the 1st of August, legislations in force, in terms of ongoing compliance, what would you suggest?

James: I think ongoing compliance, especially as the law develops, is going to be perhaps difficult at first before we have any judgments from the courts on what these duties mean, or we have any decisions from the OFS from which we can learn lessons. I think though the draught guidance suggests the universities should take a very cautious approach, at least at the beginning, and take these obligations very seriously and assume they're going to be scrutinised to a very significant degree by the OFS. In order to deal with that, I think universities are going to need to think very carefully about putting in place staff and resources which are sufficient to deal with complaints, either as they arise internally or as the OFS asks for their cooperation in dealing with external complaints.

The guidance also makes very clear that detailed records and monitoring systems are going to need to be in place, the OFS is going to expect detailed records to be taken where free speech has potentially been impinged, and presumably there they're thinking about reviewing the process further down the line and asking for those records. So it seems they will take a very dim view if universities have not kept them.

The other theme which comes out from the guidance which I touched on earlier is the matter of training, and I think it's important that institutions introduce comprehensive training on free speech, academic freedom and the Equality Act, which can be rolled out to everybody who may potentially be impacted, so in particular one would be thinking about senior managers, HR and fundraisers as well.

We also need to, I think, think about what response plan universities may have in place if a controversy arises. Now the OFS, again in its guidance, has been clear that it expects robust statements very quickly from universities which are pro free speech, and it also expects them not to give in to external campaigns to dismiss individuals. So what the OFS seems to want is for universities to rebuff any public calls for dismissal in advance of any detailed process to investigate what has actually happened, and it would be prudent to have in place response plans or/and identified people who can respond in order to satisfy that expectation from the OFS.

Simon: Final question for you, what are the consequences if you get things wrong?

James: Yes, that's a very good question. So first of all we have the complaint scheme, now that is going to be run by the OFS which can make recommendations. Technically speaking those would not be binding, but would come with heavy reputational issues, potentially, if you refuse to comply with the regulators recommendations. And one must remember that the OFS has broader regulatory powers, in line with the new regulatory requirements to make fines and, in very extreme cases, potentially deregister providers. So it wouldn't be a particularly good idea to ignore OFS recommendations.

Sitting behind all of that, we also have the ability for individuals to bring claims in the courts under the statutory tort. Now, because of the expense of bringing such claims and the technical difficulties of doing so, I wouldn't expect many individuals to take that route, but we should also bear in mind that the new obligations under the Act will also modulate how other rights, for example in the Employment Tribunal, will operate. So, for example, it's my view that certain claims, for example for unfair dismissal, may be harder to make out for universities if they have dismissed someone in breach of their duties under this new Act. It also may affect how elements of the Equality Act, for example harassment, are decided as well.

So overall, I would say the risk profile for institutions both financially, reputationally and with the regulator are going to be significantly increased and over the coming months and years they're going to be under significant scrutiny both from the regulator and also from the courts as well.

Simon: Thank you, James. Well, this brings to an end our whistle stop tour of the new legislation there is no doubt about it, it's going to have a significant impact and institutions will need to get to grips with these key provisions very quickly. If you need any help at all, we provide an audit package, so please get in touch with either myself or James and we can give you more information about this. And that just leaves me to thank you all for listening today.