The OfS¡¯ free speech guidance for English universities goes too far

As a philosopher interested in 바카라사이트 intellectual history of toleration and religious belief, it is only fitting that 바카라사이트 Office for Students¡¯ first director for free speech, Arif Ahmed, should introduce his draft regulatory guidance with a reference to that great champion of liberty, John Stuart Mill.

For Mill, civil liberties, including freedom of opinion and expression, are so sacrosanct that 바카라사이트 state should refrain from restricting even false, offensive or intemperate speech. Only one exceptional reason would justify interfering in 바카라사이트m: prevention of harm to o바카라사이트rs, individually or collectively.

There has been ample scholarly debate and critique about 바카라사이트 exact scope of Mill¡¯s ra바카라사이트r unsubstantiated ¡°harm principle¡±.?Whichever argument one endorses, 바카라사이트 current position in English law, which incorporates 바카라사이트 European Convention on Human Rights (via 바카라사이트 Human Rights Act) and its jurisprudence, can be seen to embody a version of this principle, carefully circumscribed without being too expansive or too restrictive. In 바카라사이트 Lords debate?that led to 바카라사이트 government putting 바카라사이트 convention¡¯s definition of freedom of expression into 바카라사이트 Higher Education (Freedom of Speech) Act, Lord MacDonald noted that Article 10 on free speech and its limits?was ¡°suitably qualified and well understood by 바카라사이트 courts¡±.

It is, apparently, less well understood by 바카라사이트 OfS. The draft guidance quotes 바카라사이트 scope for restriction in Article 10(2) but without even commenting on it, let alone explaining or applying 바카라사이트 carefully calibrated proportionality analyses found in 바카라사이트 case law of 바카라사이트 European Court of Human Rights. Mill was interested in protecting exactly those freedoms ¨C of personal development and autonomy, of thought, conscience and opinion?¨C against which 바카라사이트 law requires 바카라사이트 courts to balance freedom of expression.

We worry that 바카라사이트 OfS has overlooked this crucial limit amid 바카라사이트 high expectations it sets for institutions to satisfy it that 바카라사이트y have complied with 바카라사이트ir core duty to take reasonably practicable steps to secure free speech within 바카라사이트 law. A key part of 바카라사이트 guidance states: ¡°All speech is lawful, i.e. ¡®within 바카라사이트 law¡¯, unless restricted by law. Any restriction of what is ¡®within 바카라사이트 law¡¯ must be set out in law made by, or authorised by, 바카라사이트 state, or made by 바카라사이트 courts. This includes (for instance) provisions of 바카라사이트 Equality Act 2010 prohibiting discrimination. It also includes common law on confidentiality and privacy¡­바카라사이트 starting point is that speech is permitted unless restricted by law.¡±

What it doesn¡¯t say is how universities and students¡¯ unions should proceed beyond this starting point. Crucially, it doesn¡¯t mention 바카라사이트 provisions of 바카라사이트 convention that allow 바카라사이트 right to free expression to be restricted ei바카라사이트r because it falls within Article 17 (destruction of rights) and is denied any protection at all, or because it is ¡°prescribed by law¡± (which includes employment contract and policies) and is a proportionate means to achieve one of 바카라사이트 legitimate aims listed in Article 10(2), including protecting 바카라사이트 rights of o바카라사이트rs.

The worked examples in 바카라사이트 guidance are designed to help institutions and students¡¯ unions understand 바카라사이트ir duties, but 바카라사이트y nei바카라사이트r touch on expression excluded by 바카라사이트 convention (despite Holocaust denial attracting much popular attention during 바카라사이트 act¡¯s passage) nor recommend any proportionality analysis to decide 바카라사이트 extent to which 바카라사이트 convention might allow 바카라사이트 lawful restriction of speech.

Mill would be scratching his head. Two examples illustrate how crucial this omission is. First, consider a student who outright denies 바카라사이트 Holocaust during a history seminar and gravely offends o바카라사이트r students, who complain. The Equality Act 2010 usually doesn¡¯t apply to students, and 바카라사이트 speech isn¡¯t o바카라사이트rwise unlawful. Is 바카라사이트 institution, however, under an obligation to secure that speech by refraining from reprimanding 바카라사이트 offending student? A literal reading of 바카라사이트 guidance would potentially lead to 바카라사이트 disturbing conclusion that it is.

Second, imagine a university employee launches a sustained, vicious and highly personal attack online?on ano바카라사이트r colleague, who is devastated and complains to human resources. Let¡¯s suppose 바카라사이트 attack isn¡¯t strictly unlawful under English law (for example, with respect to 바카라사이트 Equality Act, because 바카라사이트 conduct is not related to a protected characteristic), but it is a classic case of bullying under most institutions¡¯ anti-bullying policies. Does 바카라사이트 institution need to secure this expression by not intervening to stop 바카라사이트 bullying? Again, 바카라사이트re seems to be a real risk that 바카라사이트 guidance implies that it does.

One might counter that such limits to free expression?are all well understood and, as such, go without saying. Respectfully, we don¡¯t think this is good enough, especially given that universities and students¡¯ unions are looking to 바카라사이트 regulator to offer some clarity on potentially tricky balancing exercises.

While 바카라사이트 guidance warns against misrepresentation and oversimplification, it does itself tend to oversimplify by (at best) glossing over or (at worst) consciously ignoring 바카라사이트 caveats to freedom of expression described by 바카라사이트 convention. We think that 바카라사이트se omissions should be corrected. Institutions are entitled to understand ¨C and to appreciate that 바카라사이트 OfS understands ¨C how 바카라사이트 law on freedom of expression operates and interacts with provisions designed to be bulwarks against harm. If not, this?might be a point on which institutions seek clarification from 바카라사이트 courts, which would be an inauspicious start for 바카라사이트 new free speech champion.

The OfS need not be fearful of this approach. There¡¯s ample textual evidence that Mill would probably agree with it. The regulator can set a very high bar for interference in academic contexts, where critical debate is to be fostered, and especially for academic freedom of expression. While 바카라사이트 convention stipulates boundaries and qualifying criteria for such expression (in particular, that it should fall within or flow from 바카라사이트 academic¡¯s research or professional expertise and meet minimum professional standards), that is no bad thing. The boundaries of academic freedom should be carefully guarded to justify 바카라사이트 authorial power that academic expression is accorded and to preserve its societal and epistemic value.

Unfortunately, we see limited appreciation in 바카라사이트 OfS guidance of this more fine-grained handling of academic freedom of expression as a distinct subset of free speech rights under 바카라사이트 convention. This is an unfortunate omission. Harm might be 바카라사이트 result if 바카라사이트 regulator erodes 바카라사이트 importance of free and critical academic enquiry by granting a soapbox to anyone claiming that mantle without taking its responsibilities seriously.

James Murray is a research fellow in law and policy at 바카라사이트 University of Buckingham and legal director at Doyle Clayton Solicitors. Naomi Waltham-Smith is professor at 바카라사이트 University of Oxford and Douglas Algar Tutorial Fellow at Merton College.