Whatever the intention, the proposals raise real concerns about the legal basis and scope of the OfS's role in this area. This is particularly important given the interest and sensitivity of this topic, as illustrated by the current inquiry by the Joint Committee on Human Rights.
This brings us to the OfS proposals. Schedule 11 of the Higher Education and Research Act (HERA) extends clause 43 of the 1986 Act to all registered providers so that it covers new 'alternative' providers, a commitment that was made during the report stage in the Lords. However, the HERA makes no mention of the OfS taking on a role in this area, other than as an inherent part of the duty to protect institutional autonomy and academic freedom.
In this respect, the OfS appears to have misinterpreted its powers. The DfE consultation proposes to include a condition of registration for approved providers (p44 guidance on conditions), including:
i. An entirely new requirement to include provisions and practices to protect freedom of speech in a providers' constitutional documents
ii. establishing and abiding by a code of practice, in line with the 1986 Act
iii. a requirement to take appropriate remedial action, including complying with a court order, or where no order is made, amending governing documents to give greater consideration to freedom of speech.
Not only does the requirement on constitutional documents go beyond the 86 Act, the proposed condition also gives the OfS the scope to take a view on codes of practice and their implementation. This is expressly mentioned in the consultation document (p33 main consultation) and given the sensitivity of the topic the OfS will certainly come under pressure to do so. This all seems to contradict the government's initial own view from the 9 January 2017 that:
"The Bill does nothing to alter [the 86 Act duty] and how it applies to universities and other higher education providers." Viscount Younger of Leckie at Higher Education and Research Bill, Lords Committee (9 January 2017)
The approach is also inconsistent with the approach used for compliance with other acts. For example, the importance of schedule 11 could have been underscored by a simple public interest governance expectation that registered providers comply with their duties under the 1986 Act. This approach is used in relation to the 1998 Teaching and Higher Education Act which covers the use of student support. The idea of considering a principle underscoring the importance of free speech was raised in the Lords report stage but the current proposals seem to go well beyond this.
Neither is it clear how this all aligns with the core OfS duties of promoting competition, choice and value for money for students, while protecting institutional autonomy. The idea that this is at the top of students' agenda, to the extent that it led the consultation launch, is simply not credible. The OfS has a statutory duty to ensure its regulatory activities are transparent, accountable, proportionate and consistent. Media driven controversy over a handful of high-profile cases, much of which misrepresents the responsibilities on universities, is not a sound basis for effective and proportionate regulation.
This all raises wider questions about the consistency of the OfS's regulatory strategy and an over reliance on directive conditions of registration from the outset. Ultimately the issue of freedom of speech is important, complex and sensitive and one that the government itself said was best left to autonomous universities:
"We need to allow institutions to make their own decisions, balancing the requirements of the duty against other responsibilities and enabling them to assess each individual case according to the situation." Viscount Younger of Leckie at Higher Education and Research Bill, Lords Report (13 March 2017)
This does not preclude the OfS working with the sector to help support good practice. Universities are absolutely committed to promoting and securing free speech and will not allow legitimate speech to be stifled. However, if the OfS was intended to get involved in arbitrating freedom of speech on campuses this should have been resolved by parliament, not a 10-week consultation on poorly conceived proposals.
While I am in favour of freedom speech, I also think that the freedom should not damage other people's freedom, the speech should not be directed to insult, demean, defame other people or organisations, the speech should not be baseless, the speech should not be given on one's own weak, less-educated, biased self-beliefe or for self-gratification. A speech that create chaos and unsettle society or environment or harm/damage others should not be set free from anybody's vile tongue. K M Enayet Hossain, Chief Executive, Total Student Care (TSC).