Podcast: Academic Freedom of Speech on Campus

Transcript

Emma O'Connor: 00:08

Hello and welcome to another episode of DC Talks, a podcast series from law firm Doyle Clayton, where we take a deeper dive into a legal and leadership issue. I'm your host, Emma O'Connor, a partner in our employment team and also head of client training. For this episode of the podcast, I am joined by James Murray, a partner in both our employment team and our education team. And we're going to take a deeper look into academic freedom and free speech on campus. James, welcome to DC Talks.

James Murray: 00:46

Thanks for having me, Emma. It's great to be here.

Emma O'Connor: 00:49

So, James, let's just kind of uh circle back really, and maybe you can just give us a bit of information, a bit of background about, you know, some of the issues that you're seeing, um, where this new Act, this free speech Act has come from, and really just to kind of give us a bit of a kind of a dive into the world of academic freedom.

James Murray: 01:10

Absolutely. So we'll primarily today be talking about the Higher Education Freedom of Speech Act 2023. Now, despite it being passed in 2023, it actually only came into force and only then in part into force on 1st August this year. So, universities have had quite a bit of running time, and there's been quite a few up and downs in the passage of the Bill and a lot of debate and controversy around it. Now, this debate started way back in 2019, 2020. There was a series of perceived restrictions on free speech on campus and academic freedom, some very high-profile disputes, including around then Professor Kathleen Stock at the University of Sussex, and a series of think tanks and research papers done which showed there was a real chilling effect on free speech and academic freedom on campus. And the government took notice of that and included a promise in its 2019 manifesto to introduce a Bill to remedy those perceived issues. So, that is the start of the journey to the 2023 Act. But it wasn't without controversy. It faced a lot of resistance as it passed through the House of Commons and the House of Lords. A lot of people in the Labour Party and in the industry itself, called the Bill a sledgehammer to crack a very small nut. There's been a lot of controversy around whether there is much of a perceived problem around free speech and academic freedom. All of that is largely mute now because we do have the Act, or at least in large part, it is with us and it does bring the first changes to the law in this area for about 40 years. So, it is the most major move in this area for for quite some time, although case law and regulatory guidance has been moving towards a place where free speech and academic freedom is given more protection and more scrutiny is given to those issues. That's largely developed as what we call the culture wars has developed over the last few years, as society has polarized and issues on things like gender critical issues and trans rights issues, even wars like in Israel and Palestine have become highly moralized and highly polarised issues. The scope for dispute that we see, not just on universities but in the workplace in general, has only increased over the past few years, which I think since those first early days of 2019-2020, we've only seen more examples of why a Bill like this was necessary. That's reflected in the kind of work we do here at DC, where we see more and more of these cases where we're helping both academics and institutions navigate these very challenging issues.

Emma O'Connor: 04:15

So thinking about the Act, and obviously, as you've said, there's parts of it in force and parts of potentially coming down the track a bit a bit later. What specifically are these new legal duties that have been placed on universities and on colleges?

James Murray: 04:32

Yes, so the new Act is building on existing law from the 1980s, in fact, and the central duty here is to take reasonably practicable steps to secure free speech, which is lawful. Now, there's been a few additions to that, a few specific additions and a few general additions as well. So, that scope of that duty has been amended to prevent universities entering into non-disclosure agreements in certain instances. It's also been amended to prevent them from imposing security costs on those hosting events unless exceptional circumstances apply. And thirdly, it's introduced a direct obligation to secure academic freedom. Now, universities had similar obligations to secure academic freedom in various different ways, but that's now been introduced directly into the statutory obligation. But aside from those more technical aspects, what has really changed her is the introduction of the Director of Free Speech and Academic Freedom at the OFS and the powers and obligations which that position now has. And I think that is what is really going to change the landscape on campus. Now, the director, the first director, is Dr. Arif Ahmed, who is a former professor at the University of Cambridge and a very well-known free speech campaigner. He was the ringleader of a number of successful pro-free speech campaigns while he was at the University of Cambridge. So, he's got a very good track record in free speech issues. He has brought with him a very interventionist and a very pro-free speech and pro-academic freedom approach. He's very robust in the way that he's regulating the sector. One can see that from the free speech guidance, which he introduced earlier this year, which is exceptionally robust and very onerous on universities. He's demanding and expecting they do a lot in a way that they have not been directly asked to do things in the past by the regulator. So, his powers and his position, alongside the yet-to-be-introduced complaint scheme, I think are really going to have a very significant impact on the sector, not just in terms of day one compliance and things they need to do to prepare their contracts, their policies, etc., but also in the way that he will monitor them and in terms of ongoing compliance. One of the early acts that he did was issue a fine, well, start an investigation and then latterly introduced a fine for the University of Sussex in relation to some of their policies, but within the context of the Kathleen Stock incident, which was one of the triggers for the for the Higher Education Act being brought in in the first place. Now that fine is is currently being challenged by way of judicial review by the university, but it just shows how robust the OFS is now willing to be and how contentious these issues will continue to be as the university and the OFS kind of found find an equilibrium between themselves over the coming years.

Emma O'Connor: 08:07

So you we mentioned the OFS. Could you just explain sort of what that you know what that stands for?

James Murray: 08:14

Oh, yes, of course. So the OFS is the Office for Students. Uh that's a regulator for higher education institutions in England. It doesn't regulate Scottish universities and Welsh universities who are subject to different regimes, but it does cover English universities. And the expansion of the Higher Educational Act will also increase its remit over constituent institutions. So, for example, the Oxbridge Colleges, which were previously primarily regulated by the Charity Commission, the OFS will now have oversight of their free speech functions as well.

Emma O'Connor: 08:53

So you've talked about the higher education and the Freedom of Speech Act, and you've talked about it in terms of it being encouraging this preventative duty. I'm wondering how this preventative duty then sits with the other duty that obviously institutions have, and that's around the equality duty.

James Murray: 09:14

That's a really good question, and it's I think one of the most difficult issues which universities have to engage with when they're interpreting the Act's requirements and what the guidance requires. Now, the the guidance from um the OFS, the director, is is very helpful in a way on a lot of these issues. It makes it quite clear what the OFS thinks. It's a duty which carries both positive and negative aspects. So universities will be expected to proactively be doing quite a number of things in order to prepare their policies, their training, their contracts, etc., in order for compliance with the Act. It's not simply a case of sitting back and, for example, not cancelling events or not firing an individual. There are positive elements to it, which are very important to keep in mind. And one of those issues is how, for example, harassment policies or bullying policies or other EDI policies are interacting with this duty and making sure that your policies at that very kind of high level, even one might say kind of abstract level, are fully compliant. This was the issue at the heart of the University of Sussex fine, and then later JR. So we will be getting some guidance from the courts, it seems, once that case has progressed, and I understand it's due to be heard early next year. But in the meantime, what the OFS says is really to minimize in many ways, as much as it can, many Equality Act duties which universities will be familiar with. He's very clear that, for example, the public sector equality duty shouldn't be used as a pretext to limit free speech. The free speech duty is, in effect, stronger, and universities shouldn't be hiding behind any public sector equality duties or misstating what their requirements are with respect to harassment and discrimination and issues like that. Of course, the duties don't apply to speech which amounts to harassment and is therefore unlawful. But the OFS is very keen to emphasize that it is quite difficult in a university context for speech to reach the threshold of unlawfulness. And one of the things it does in its guidance is make that very clear that it's almost a kind of issue of last resort if what we're talking about is particularly an academic debate, for example, where there is genuine discussion over academic issues, that's probably going to be speech which is entitled to a very high level of protection and very hard to say is unlawful harassment. But that line is a very, very difficult one to draw. And while the OFS makes a lot of general statements about what it expects as a matter of principle, the actual practice of managing those interactions is going to be very difficult. And what the University of Sussex decision by the OFS probably shows is the real risks of getting those regulatory decisions wrong because the OFS may impose very heavy fines. And those powers have always, in effect, been in place for the OFS. But what the position of director is showing is a real intent to use those powers and to enforce the rules around free speech in a very strict kind of way. So universities will need to be very clear on what the law is requiring of them and take very detailed care over drafting any policies or contracts which interact with free speech.

Emma O'Connor: 13:20

So thinking about the work, obviously, that universities and institutions are going to have to do to comply with this. I suppose there's two things, isn't there? Firstly is, what's the direction of travel, in terms of implementation dates and secondly, what are you seeing in your own practice and the support that you're giving and can offer institutions to assist them in reaching that, which sounds like a you know a high bar.

James Murray: 13:49

I think it certainly is and I think perhaps one of the most onerous things where we're looking to help universities most of all is around training. And I think that is absolutely essential, not just in terms of the kind of basic level requirements from the guidance, which in themselves are very challenging. So, for example, they expect universities to be training most people in the organization, certainly anyone who's involved in decision making that may affect free speech, on things such as the university's own free speech code, which is relatively straightforward, but also what English law says about free speech, which can include the Human Rights Act and the Convention case law as well, and also about equality law and how the two things interact. Now, though those are issues which are difficult even for lawyers to get their heads around, particularly at this stage in advance of any detailed guidance from the cause. These are very much evolving issues and are a subject of a lot of academic theoretical work, even at this stage. So that's very difficult for institutions. But the training piece also goes to a kind of wider cultural issue as to instilling an attitude which is more pro-free speech in people who are handling grievances and disciplinaries. And the instincts has got to be much more pro-free speech than it was previously, because otherwise you can start cascading and compounding errors which are made early in processes by relatively junior people, which come back to bite you much further down the line as matters escalate. And particularly when the new complaint scheme is brought into force, you know, if and when that is brought into force, that's going to be a big issue and when the OFS is scrutinising those levels of decisions, it's going to want to kind of see that the training in the first place was suitable, but also that that training was properly implemented in the way decisions are made. So I think that's really important. And it's easy to underestimate it. It's not simply a matter of giving a single PowerPoint presentation on what the law requires, because it's relatively easy to state, but very difficult to master.

Emma O'Connor: 16:23

It's the nuance, isn't it? And it's the balance, it seems to me, on on hearing what the obligations are going to be and I would imagine the other area of of support is going to be around investigations. I see that being a huge piece of work. And again, you know, investigating obviously the context which I which you've you've talked about. What why else do you think investigations are going to be important?

James Murray: 16:50

I think if you're going to be making decisions about free speech, particularly making decisions which end up restricting free speech or academic freedom, then I suspect you're going to be under particularly intense scrutiny from the regulator, not necessarily just under the complaint scheme, but potentially also in the context of an employment tribunal claim or even just a regulatory investigation. So, you want to be sure you're getting the right decision. And in weighing up the kind of various competing legal obligations, I think unfortunately it's it's become so complex that a specialist investigator is really going to help considerably. And it what would make a good investigator in these issues as well, I think, would be an investigator who understands the limits of what they know and what they can opine upon because an issue I see frequently where a university has instructed Counsel who may be a legal expert to do an investigation, the temptation is often for them to start making judgments on matters of academic freedom and academic research, for example, which they're not qualified to do. And these are judgments which it's going to be very hard for lawyers to make. So you need to be so the investigator needs to be mindful of what they can or cannot do as well. And understanding those boundaries is quite a tricky thing for an investigator to do. It can be helpful as well, to appoint someone independent because, in my experience, at least, the issues which give rise to these particularly bitter kind of debates, which come across a lawyers desk, they’re incredibly emotive so, I mentioned earlier, I’ve done a lot of work around gender critical issues and I’ve done a lot of work around the Israel/Palestine conflict. Emotions run exceptionally high around those issues and it can be difficult for someone internal to be making objective and good quality decisions around issues like that. So, it's often easier to kind of push those decision making out to an external investigator who can look at it a lot more dispassionately.

Emma O'Connor: 19:16

But of course, you know, there are wider issues, aren't there, when we think about academic freedom? And what we're seeing at the moment is lots of discussion around the internationalisation of you know universities of academic freedom. And I wonder, James, what are you seeing in your own practice area about this issue and how does the Act put that into context?

James Murray: 19:48

Yes, that's a really interesting angle. So the internationalisation angle was live when the Bill was passing through parliament. The issue then was particularly around what were called Confucius Institutes, which were institutes set up in various different universities by which were effectively funded by the Chinese government. And the perception there was of undue influence on the nature and scope of academic research undertaken. Elements of the Bill were introduced, in order to attempt to tackle that, primarily in the form of a monitoring obligation on the OFS regarding certain levels and certain types of funding from foreign countries or foreign bodies. Those provisions have not yet been brought into force. And there was until relatively recently some question marks over whether they would be brought into force. Interestingly, in in the past few weeks, we've seen a major controversy arrive at Sheffield Hallam University, where it was alleged that influence from the Chinese state effectively stopped certain types of research into the Uyghurs undertaken by one of the professors there. And that again raised the spectrum of inappropriate influence, allegedly, from international actors, particularly from China, and how they may be exerting outside, outsized influence on the UK academic sector, particularly with respect to, firstly, their buying power in terms of international funding from their international students, which are very lucrative for universities but also the issue potentially of defamation claims from international actors who try to silence through slap litigation, academics who are undertaking work which are critical of them. Now, there's been a lot of research done by certain professors around autocracies and autocrats from foreign nations preventing reporting of their activities by UK academics and them using defamation suits to try and silence that academic research and I think in the Sheffield Hallam case, it was it was alleged that the university's insurer wasn't prepared to insure defamation suits against the university. So that is becoming an increasing issue as well. And it it gives good reason, I think, for the for the Government Act to introduce these internationalisation monitoring provisions from the Higher Education Act.

Emma O'Connor: 22:44

So in terms of the work that you're doing, is it just institutions that you are supporting?

James Murray: 22:52

So, we do a healthy mix of both institutional work and acting for individuals. There's a number of high profile cases which will be going to court next year, which we're which I'm very happy that we're involved in, which I think will be really developing the law around academic freedom and free speech, even more so than the regulator is developing it at the moment. In particular, the work we've been focused on has two aspects. The first will be bringing into UK law the Strasbourg jurisprudence around what's called academic free expression. Now, this is, I suppose, a hybrid between the concept of free speech and academic freedom and is a way of synthesising those two concepts through the European Convention. Now, English case law is not well developed in respect of that at the moment, but the cases we're bringing will bring it to the forefront. So hopefully the court will give us some further clarity on those issues. There's also the issue of how employment tribunal litigation will interact with pieces of legislation such as the Higher Education Freedom of Speech Act. To what extent is the duty not to unfairly dismiss someone modulated, either in the university's favour or in the individual's favour, in order to take account of the Higher Education Act's protection for free speech? In effect, is it harder to fairly dismiss someone if doing so is in breach of their rights under the Higher Education Act? So although the Higher Education Act isn't justiciable in the employment tribunal, is there a way to effectively bring that sort of claim under the Employment Rights Act? Those interactions have not been explored at all by our courts yet. But there is cases we're involved in in the next year which will answer those questions and hopefully get some answers.

Emma O'Connor: 24:58

So the final question, James, is looking ahead, looking at the future, and how do you think this Act will shape the future of academic culture in the UK?

James Murray: 25:08

That's an excellent question. And I I think it will have a significant impact on academic culture. The conversations that I have with people in industry tell me that they are taking it exceptionally seriously and they're looking very carefully at their own policies and training and all of those internal documents and practices and it is a bit of a sea change in terms of an attitude which is going to be much more cognizant of free speech issues. So to that extent, the Act is doing broadly as it intended to do. And what the RFS is hoping to do in terms of making institutions much more mindful of free speech and academic freedom and much more wary of the consequences of getting things wrong, it's certainly having its effect in practice and I think we'll see that more and more as the guidance develops, we get more decisions from the courts, we get more regulatory decisions. And, I think once the complaint scheme is introduced, which maybe not for a couple of years yet, we're going to see much more impact from regulatory decisions taken by the OFS and much easier routes for enforcement by individuals. So, we're going to see more decisions and more impact of the Act once that complaint scheme is introduced.

Emma O'Connor: 26:38

Thank you, James, for guiding us through what is an incredibly important issue, not just for academics and institutions, but I think, more broadly as well. So thank you very much for joining me on the podcast.

James Murray: 26:51

Pleasure. Thanks for having me.

Emma O'Connor: 26:53

To find out more about Doyle Clayton, to find out more about the work that James is doing, then please do find us on our website and for more podcasts, more information about Doyle Clayton and how we're supporting clients, then please tune in to further podcasts and don't forget to like and subscribe. Thank you very much for joining us today. Thank you.