The law around free speech is complex, but Sussex just seems to have got it wrong and has paid a hefty price, says James Murray in the Times Higher Education. Here’s an extract:
The Office for Students (OfS) has fined the University of Sussex £585,000 for breaching two conditions of its regulatory framework. Condition E1, concerning public interest governance, was breached because of restrictions on free speech and academic freedom in the university’s Trans and Non-Binary Equality Policy Statement, effective from 2018.
Four specific statements were found to limit lawful expression, including gender-critical views protected under the Equality Act 2010. Those were requiring positive representation of trans people, prohibiting stereotypical assumptions, banning transphobic propaganda, and classifying transphobic abuse as a disciplinary offence.
This created a “chilling effect”, notably affecting Kathleen Stock, who felt unable to teach certain topics given her gender-critical views. The breach spanned from August 2019 to at least March 2024, with inadequate safeguards despite policy updates in 2022 and 2023. A £360,000 penalty was imposed for this violation.
Condition E2, relating to effective management and governance, was breached owing to a pattern of decisions, including the adoption of the Trans and Non-Binary Equality Policy Statement, made without proper delegated authority, by groups such as the University Executive Group. This risked lower-quality decision-making, prompting a £225,000 fine.
The OfS investigation, triggered by Stock’s 2021 exit from Sussex amid protests and accusations of transphobia, found the university failed to ensure freedom of speech and academic freedom. It had potentially violated wider legal duties under the Education (No 2) Act 1986, the European Convention on Human Rights (the Convention), the 2010 Act, and the Public Sector Equality Duty of the 2010 Act.
The OfS emphasised the importance of these freedoms for quality education, aiming to deter similar breaches across the sector through publication of its findings. The penalties, calculated based on the breach’s severity, duration and impact, reflect a balanced approach, considering the university’s financial capacity and the need to protect students and staff while fostering diverse academic discourse.
Nevertheless, Sussex’s vice-chancellor told the BBC that the OfS had adopted an “unreasonably absolutist definition of free speech” which meant that the university had “opposing and irreconcilable duties” and was “powerless to prevent abusive, bullying and harassing speech”. She has intimated that a legal challenge to the decision will be forthcoming.
So did the OfS get the law wrong?
As a general point, the Sussex report correctly states the general legal principles under the 1986 Act and the Convention (in particular, that any restriction on free speech must be proportionate). The real question is whether it erred in applying these principles. I do not think it obviously did (though of course, we only have the benefit of the contents of the report itself at this stage).
Perhaps the most potentially controversial statement in the Sussex report relates to the Trans and Non-Binary Equality Policy Statement. Even though this was amended to provide further safeguards for free speech and academic freedom, it was still considered a breach because it “continued to prohibit lawful speech and have a chilling effect” and “this implied that the university considered these statements and restrictions (which restrict lawful speech) to be proportionate restrictions on freedom of speech and therefore justified”.
A blanket restriction on the content of lawful speech cannot satisfy the obligations of proportionate restriction in and of itself because – necessarily – it does not provide sufficient scope for a nuanced and fact-sensitive assessment about the time, manner and place of the speech. Sussex did introduce wording to the effect that restrictions should only be placed on “unwanted behaviours and communications that could reasonably be expected to cause distress or fear among trans people”. But I agree with the OfS that this does not import sufficient scope for an objective, fact-sensitive proportionality assessment.
In short, I think this placed the objectivity requirement in the wrong place. You might reasonably expect a hypersensitive person to take offence to a whole range of behaviour that the hypothetical person on the Clapham Omnibus would not. The question should be whether that offence was reasonable. This is how the harassment provisions under the 2010 Act are framed, for example.
Worth reading in full.
