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Sussex hit with huge fines for free speech governance failures

(14.04.2025) The Office for Students (OfS) has fined the University of Sussex £585,000 for freedom of speech and academic freedom failures. This is an excellent and highly significant development for freedom of speech protection.

Kathleen Stock was a philosophy professor at the University. She holds “gender critical” beliefs: that biological sex is real, important, and immutable. In 2021, Stock was subject to an organised campaign by students and staff, who demanded that the university sack her for gender critical beliefs. She received numerous death threats and was advised by the police that she might need security to go into the university. Eventually, she resigned.

The OfS can investigate whether universities are in breach of their “conditions of registration”: conditions which universities must meet in order to retain their degree awarding powers.

The OfS investigated Sussex and found it had breached two conditions. Sussex breached:

  • A condition (E1) which requires the governing documents of universities to uphold freedom of speech and academic freedom. This was because its “Trans and Non-Binary Equality Policy Statement” required academics to “positively represent trans people and trans lives”, and contained prohibitions against (undefined) “stereotypical assumptions about trans people” and “transphobic propaganda”.
  • A condition (E2) which relates to governance procedures, because subsidiary university bodies approved the “Trans and Non-Binary Equality Policy Statement”, along with a number of other important policy documents, despite not having the delegated authority to do so.

See the OfS’ report here

Vice Chancellor Professor Roseneil has stated “the behaviour of the OfS sets a dangerous precedent and constitutes serious regulatory overreach in service of a politically motivated inquiry”. Sussex have begun judicial review proceedings.

We wrote to Sussex in February 2023 about compliance issues we raised on this subject. Sussex refused to engage seriously. See more here

The OfS’ report and fine are a major development in free speech protection with significance far beyond the University of Sussex.

  • OfS has got serious: First, and most importantly, the report demonstrates that the OfS is now serious about free speech protection and will take action against universities which fail to protect free speech. The fine of £585,000 is the largest the OfS has ever issued.
  • Universities need to review their policies: Second, multiple other universities have policies which are, in the offending sections, identical or extremely similar to Sussex’s. The Committee for Academic Freedom has identified 29 universities with such policies, all of which now need to review their policies to ensure that they comply with their regulatory obligations and do not restrict lawful speech. This OfS report has to precipitate a sector wide review of their policies, beyond trans matters, to ensure free speech compliance.
  • Dangers of taking policies from external providers: Third, Sussex created its “Trans and Non-Binary Equality Policy Statement” by copying verbatim the offending passages from a template provided by the education charity Advance HE. The case of Sussex is therefore a powerful argument that universities must not outsource their governing policies, which determine the culture of a university and how it is run, to external organisations such as Advance HE and Stonewall. They have to take responsibility for their own compliance.

We will shortly be writing to all universities, impressing on them the need to review and revise their policies to ensure they do not restrict lawful speech, and the likely penalties if they fail to do so.

Revised BFSP statements in preparation for HEFSA coming into effect

(14.04.2025) Now the mist has cleared, at least partially, on what the legal landscape is going to look like, and we now know that much of the Higher Education (Freedom of Speech) Act 2023 is going to be brought into effect, BFSP is getting stuck into a huge amount of detailed work revising its statements about the legal requirements, so they are ready for the next academic year. There is a great deal to do, but these are proving to be valuable weapons, and pretty well unique. We now regard ourselves as free speech arms manufacturers.

A timing issue we have is that the OfS will produce revised guidance fairly soon, which will no doubt change our statements yet again. So we will have a big rush as summer approaches. BFSP toils at a rather dark and dingy free speech coalface.

Two recent statements are as follows.

Oxford highly likely to be acting unlawfully in requiring diversity support statements in job applications: they ignore AFFS’ warning: AFFS demands an external review of why they made that decision

(27.02.25) AFFS wrote informally to Oxford University  in January, highlighting free speech legal and governance issues with its requiring commitments to contested agendas and ideological positions in job advertisements and applications. The opportunity to review and correct their policies was rebuffed with a reply which managed to appear simultaneously disingenuous, complacent and potentially negligent.

This indicates a possible systemic problem with its governance and compliance, in that it appears to have knowingly disregarded clear evidence of unlawfulness, we have to assume because it is so committed to enforcing EDI agendas that it cannot conceive that this can be not just inappropriate, but actually unlawful – even though those agendas include values and agendas dissent from which is, amongst other things, protected under the Equality Act. The University appears to be deliberately prioritising commitment to EDI over free speech rights.

AFFS has now written formally to Oxford, setting out the relevant requirements, the ways in which they are acting unlawfully, making recommendations for action and ending by calling for Oxford to review its management and governance structures and processes in this regard.

Oxford  appears to have serious questions to answer. These include:

  • What work did it do to assess the correctness (or otherwise) of the matters raised in AFFS’ initial letter? Did it consult specialist lawyers about it? What advice was received? Was it implemented?
  • Who within the University’s management was involved in any such assessment? Did they include the appropriate people, including an advocate for free speech?
  • Who was responsible for the decision to respond to AFFS’ earlier letter as the University did?

Given the University’s performance so far, a reasonable person would have little faith that it would itself perform this review appropriately. AFFS has therefore called for the University to appoint an independent expert to review its decisions and processes and report on whether mistakes or defaults occurred, and who was responsible for them, to including include the questions we raise above; and to make recommendations for improvements in the University’s management, governance, processes and policies.

AFFS will be reporting Oxford’s failures to the Office for Students.

The Dandridge Review re the Open University/Jo Phoenix: what universities need to know – and do

(28.01.25) The Dandridge Review (the “Review”) is a report, published in September 2024, of an independent investigation by Dame Nicola Dandridge which was commissioned by the Open University (“OU”) following its failure to manage disputes and prevent unlawful harassment of Professor Jo Phoenix over her views.

BFSP has reported on the Review in detail – see this here.

The potential usefulness of the Review was restricted by Dame Nicola’s terms of reference. These appeared to assume a need to “balance” legal rights to free speech with wider (non-legally mandated) equality and other agendas. This is the wrong focus as, in what many see as at times a legal and regulatory minefield, the focus has to remain on complying with legal obligations and negotiating a path through those obligations where they potentially conflict.

The terms of reference imposed on Dame Nicola were, therefore, highly inappropriate and inevitably caused some real weaknesses in the Review and its findings. They meant that, while the Review contains worthwhile statements about what universities and other higher education providers need to do to avoid legal and regulatory failures, there are some significant omissions and unhelpful obscurity and vagueness.

Despite the limitations of its terms of reference, and its overconcentration on the disputes between trans rights and gender critical feminism, the Review’s findings, with respect to what universities must do to protect free speech and avoid legal and compliance failures, are, generally, applicable to all universities.

Key Implications of the Review; requirements for action

  • There was a culture of conformity/consensus at the OU, and fear amongst dissidents from orthodoxies.
  • EDI was a source of freedom of speech problems.
  • Requirements re standards of behaviour were poor and needed a lot of improvement. These to extend to clear guidelines about online working and online behaviour; and when it is not appropriate to express personal views at work, and that staff should be willing to work with colleagues whose views they disagree with.
  • The vital need for clear, consistent, lawful and effective policies more generally. 
  • Universities need to adopt institutional neutrality.
  • Much more early, active and effective management of disputes was needed.
  • Dedicated, effective free speech promotion and protection structures, with separation from EDI.

Important matters omitted, understated or insufficiently clear

  • The OU needed to ensure that its policies and requirements generally – and in respect of EDI agendas in particular – are structured so as not to inappropriately restrict free speech. Have adequate training and induction.
  • Effective intervention and enforcement of behaviour requirements is vital when free speech problems arise.
  • Effective systems for reporting and managing disputes and free speech complaints were needed.
  • The need for a free speech officer to lead the free speech protection structures.
  • The need to reduce common complaints cultures, and manage complaints connected with viewpoints effectively.
  • Review and if necessary terminate relationships with external campaign organisations which given rise to free speech problems.

See BFSP’s detailed report on the Review.

Positive and decisive action from Newcastle University

(27.01.25) We wrote to senior officers at Newcastle University on 19th December regarding potential legal and regulatory failures to protect free speech. See our letter here.

Helen Adamson, PGR Co-Director in the School of Natural and Environmental Sciences, had been the victim of a pile-on after being filmed participating in a political “Unite the Country” rally organised by Tommy Robinson in October 2024. This led to an open letter signed by over 100 students, staff, and alumni calling for the university to take action.

However, it turned out that Newcastle had already taken decisive action. Helen told AFFS that the university has been very supportive of her right to freedom of speech and that the Vice Chancellor provided reassurance to the extent that she has commended the University for it.

Government U-turn on HEFSA: Victory for free speech, though with some disappointments

(17.01.25) Secretary of State for Education Bridget Phillipson has announced in Parliament that the government will implement the Higher Education (Freedom of Speech) Act 2023 (HEFSA), though with some important elements removed.

HEFSA was designed to expand the existing regime for free speech protection, and, crucially, to create an enforcement mechanism. As originally passed in Parliament, HEFSA would have created a free speech complaints scheme, run by the Office for Students (OfS). When universities failed to uphold free speech, academics would be able to bring a complaint to the OfS. Behind this was a new “statutory tort”, which would allow a censored academic (for instance) to claim in court for resulting losses, which would have been a cheaper and easier process than judicial review. This accountability would have forced universities to protect free speech better.

AFFS has been closely involved in a multi-faceted campaign to save HEFSA. We have written several times to the Department for Education  (DfE), including joining other free speech groups in writing an open letter in support of the Act which gained over 600 signatures from leading academics, including seven Nobel laureates, and more recently about a study which indicated that universities had actually been improving their free speech protections in preparation for HEFSA. We have also also been involved in extensive consultation with the DfE.

As a result OF WIDESPREAD CRITICISM, WHICH IS NOT GOING AWAY, the Government has now announced that it will implement most of HEFSA – although it lacks the political courage to admit that suspension was a mistake.

Real questions remain about the Government’s commitment to free speech – and Bridget Phillipson’s competence. The suspension seemed like an ideological lurch: a needless, self-inflicted destruction of her own political capital. Labour have managed to take ownership of university free speech problems, and will be blamed for every failure that occurs between now and the next election. While the partial implementation of HEFSA will take some of the sting out of this, this negative perception will remain at a time when the middle ground has become sensitised to the issue. 

The new free speech complaints scheme will still operate, but the great disappointment is that the statutory tort will not be enacted. In addition, HEFSA as in force will not apply to Students’ Unions, as it would originally have done. These changes mean that the OfS and academics will remain unable to take (or to afford to take) universities to court for free speech failures. However, the OfS will be able to issue recommendations to universities (which can include to pay compensation), and can take regulatory enforcement action in extreme cases.

While the failure to implement in full is disappointing, given that, in July, the Act faced a bleak future, this is a significant victory for the free speech movement in forcing the Government to make what has been widely described as a U-turn. Despite these disappointments, we expect free speech protection in English universities to improve substantially. We give this outcome a hearty two cheers.

HEFSA: awkward UUK study shows Act was pushing free speech improvements even before it came into effect, compelling arguments to bring Act into effect asap

(08.01.25) We co-ordinated various free speech campaigns in writing to the Education Ministers to point out something rather remarkable: UUK, who have opposed the Higher Education (Freedom of Speech) Act (HEFSA), have produced a study which (we assume inadvertently) shows that universities were being pushed by the approach of HEFSA into making significant improvements in their FS protection requirements and systems. 

The announcement last year by the Secretary of State on 26 July that she was stopping further commencement of HEFSA has not only stalled such improvements that have happened, but has subsequently led to a significant deterioration in the free speech climate in ways that were foreseeable. Following the announcement, many universities have stopped ongoing work on freedom of speech and postponed the formation of internal complaints processes. For example, the Imperial College working group on free speech was in the process of developing initiatives for the Promote Duty, but following the decision to stop commencement of further provisions of HEFSA the working group was immediately suspended, which has changed the free speech atmosphere at Imperial for the worse. Similarly, the UCL working group on free speech was in the process of developing an updated code of practice for free speech to make it HEFSA-compliant and produce related complaints processes, but it stopped all work on free speech and academic freedom on the same morning as the Secretary of State’s announcement.

This is in equal measures devastating for any remaining arguments for not bringing in HEFSA, and hilarious in that this smoking gun has been produced by an organisation which is reputed to have opposed HEFSA. We wonder if they’d thought this through. The Times Higher Education recently highlighted our letter and findings. You can read it here.

The fate of HEFSA: letter to The Times and what you can do

(10.12.24) We joined several other free speech campaigns and individuals in writing to The Times as a result of rumours that the Higher Education (Freedom of Speech) Act may be watered down from what was enacted, in particular by removing the statutory tort provision which would have imposed vital accountability.

The Government has yet to make a decision about this vital piece of legislation, and has apparently been disconcerted by the extent of the anger about their constitutional vandalism in suspending it. They have managed to take “ownership” of free speech as a problem, and the general public are noticing. All campaigners are working to maximise pressure for a good outcome. We therefore encourage everyone who cares about free speech to do something to register their objections, for instance writing to their MP or asking any contacts within Labour to pass on their anger to the education ministers and/or No.10.

The recent letter was as follows.

“Sir, we are concerned by reports that the government may remove the statutory tort provision from the Higher Education (Freedom of Speech) Act (“University free speech law set to be watered down”, Dec 6). A law without a judicial enforcement mechanism is a toothless law.

The Act does establish a scheme for the OfS to review free speech complaints but makes clear that this scheme “may not authorise the OfS to require anyone to do or not do anything.” So without the legal backstop of the tort, universities may simply ignore OfS recommendations. Moreover, the tort guards against the risk of institutional capture of the OfS.

Accountability is everything. Creating liability risk for universities that ignore their free speech duties is the most effective way to ensure that free speech is always factored in, substantively, to decision making. We urge the government to implement this vital Act in full

Abhishek Saha, founder member of the London Universities’ Council for Academic Freedom and professor of mathematics at QMUL; Dennis Hayes, director of Academics For Academic Freedom and emeritus professor of education at the University of Derby; William Mackesy, director of Alumni for Free Speech; Edward Skidelsky, director of the Committee for Academic Freedom and lecturer in philosophy at the University of Exeter; Heather McKee, convenor of Student Academics For Academic Freedom and masters student at the University of Glasgow; Jo Phoenix, professor of criminology at the University of Reading and advisory group member of Sex Matters; Sir Partha Dasgupta, Frank Ramsey professor emeritus of economics at the University of Cambridge.”

A win for free speech? William Hague, recommended free speech candidate, wins Oxford Chancellorship election

(29.11.24) Oxford alumni have voted to elect William (Lord) Hague to the Chancellorship of Oxford University.

Lord Hague was jointly recommended by AFFS and the Free Speech Union as being the “leading” candidate for those who care about the protection of free speech. See our recommendation here and Campaign News of 24.10.24.

AFFS wrote in late September to the then-known candidates requesting information about their position on free speech. AFFS and the FSU included AFFS’ questions a, and its review of the answers received, with our recommendation.

AFFS are not going to claim that free speech was definitely a decisive issue, but we are confident that a lot of alumni care about free speech and that it was a factor in the result. It is interesting that, broadly, those who appeared to be less favourable to free speech arguably performed less well in the final rounds of voting.

See detailed information about this campaign here: https://affs.uk/voting-oxford-chancellor-election

How universities teach students to shame: Alexander Rogers’s death is a tragic example

(15.11.24) The below is an extract from a longer article by Kathleen Stock published in Unherd See full article here This is the sort of thing we are fighting against. Although this poor young man’s case was itself not an obvious direct free speech issue, probably more one of nasty and self-righteous people (a toxic combination) being empowered by the internet. 

Organising and joining in a campaign of ostracism is clear bullying. Universities have rules against this. Why aren’t they enforcing them, and training people that they will be in big trouble if they don’t comply? There is a deep integrity issue here and universities are regularly failing it.

AFFS are on universities’ case about free speech failures, and allowing bullying of this sort will be a focus. Things will get better, 

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How universities teach students to shame: Alexander Rogers’s death is a tragic example

Oxford colleges are suffocating places, stuffed to the gunnels with competitive and perfectionistic types, precocious in some ways and very immature in others. Everybody knows everybody else, adolescent hysteria and gossip can travel fast, and an atmosphere dominated by a few loud personalities can feel extremely claustrophobic. In this respect, smaller colleges are probably the worst.

The 20-year-old Oxford student Alexander Rogers killed himself within a week of being shamed by university friends. According to the coroner, he had become the subject of rumours after a post-pub tryst. While no formal allegation was registered, the woman involved told mutuals afterwards that it had left her feeling “uncomfortable”. An ex-boyfriend of hers was then involved in a physical confrontation with Rogers, while others told him he had “messed up” and they would be distancing themselves accordingly. Shortly afterwards, the third-year material sciences student wrote a goodbye note describing an “unintentional but unforgiveable” act.

The coroner in this case (at least) cited an independent review commissioned by Corpus Christi — the college attended by Rogers — describing a “normalised” culture in which “students could rush to judgment without knowledge of all the facts, could shun those accused, and a ‘pile-on’ might occur where a group would form a negative view about another individual”.  According to the report, “this culture was not limited to Oxford University — it is an issue for the higher education sector as a whole.”

This week, the papers have shared first-hand accounts from Oxbridge students, bearing witness to painful struggle sessions and acts of shunning for those suspected of harbouring morally injurious attitudes. And this fits with what others have told me.

It’s tempting to rail against the fanaticism of aspiring young witchfinders, and the cowardice of those who fall in silently behind them, especially when the consequences are as grave as in Alexander Rogers’ case. It seems clear that the whispering and pointing now rife among students would not be so popular had influential adults not sanctioned it. In many ways, here too young people are just doing what they think they are supposed to, by diligently copying other people.

See full article here

Possible mistreatment of James Tooley, and the risk to the University of Buckingham’s reputation

(05.11.24) We have written to Mr Mark Qualter (Chair of the Council) and other members of the Council regarding the mistreatment of Professor James Tooley. Tooley was suspended following allegations from his estranged wife; the only currently known allegation, that he kept an unlicenced firearm at home, had apparently turned out to be untrue before his suspension was even announced.

The precipitate-seeming actions of the Council, and the motivations for his suspension and its announcement, have been the subject of intense public speculation. The University has since announced an independent investigation into the issue, although whether the behaviour of the University is part of its scope is unclear: it should be.

We have highlighted several questions regarding potential legal and regulatory issues facing the University and members of its Council depending on the facts.

Oxford Chancellorship: AFFS and FSU recommend alumni to vote for free speech candidates

(24.10.24) Oxford alumni can use their vote in the upcoming election for the Chancellorship of Oxford University to support candidates who stand for the protection of free speech, and thus demonstrate that free speech matters to alumni. We urge all Oxford alumni to vote for a strong free speech candidate.

We wrote earlier this month to the then-known candidates requesting information about their position on free speech, and many candidates responded. Based on AFFS’ review and analysis of candidates’ responses, the candidate among the apparent frontrunners for the Chancellorship who AFFS and The Free Speech Union (“FSU”) jointly recommend to those who care about free speech was:

  • William (Lord) Hague

Other candidates who appeared (out of a strong-looking field) to be the most suitable at that time to support were:

  • Revd Matthew Firth
  • Professor Simon Kay
  • Maxim Parr-Reid

If alumni vote for any of these other candidates, AFFS and the FSU also recommend that they ensure that their transferable vote goes to William Hague.

Please see our dedicated Voting in Oxford Chancellor Election page for detailed information, including our statement on the merits of the candidates from a free speech perspective. (We have updated our original statement to reflect further information and responses that we have received since its first issue.)

Academics: an open letter to sign

(08.08.24) We recommend that those of our members who are or have been academics sign this open letter to Bridget Phillipson organised by the excellent Committee for Academic Freedom (here). It is worth a read in any event. The more signatories, the greater its impact.

FSU legal action: funding needed

(06.08.24) The Free Speech Union (FSU) is planning to fight the government on this and AFFS strongly supports them in this endeavour. Inevitably this will require funding and if you are a member of the FSU you will have received an email from them about it.

Below are some excerpts from their most recent email. Note the 20% figure.

“The Higher Education (Freedom of Speech) Act 2023 was a significant measure by the Conservatives to protect free speech in the past 14 years. This legislation, heavily advocated for by the Free Speech Union, aimed to ensure English universities upheld and promoted freedom of speech on campus, with mechanisms in place to enforce this duty, including a new statutory tort.

Approximately 20% of the over 2,400 cases we’ve supported in the last four years involved university students or academics. We believe that the Act would have significantly strengthened their positions. For instance, it would have been more challenging for trans rights activists to no-platform Selina Todd, the Oxford Professor of Modern History, had this Act been in effect.

With Rishi Sunak calling an election before the Act’s implementation, the current Government has taken the opportunity to obstruct it.

At the Free Speech Union, we are exploring various legal avenues and, without revealing too much, Bridget Phillipson will be hearing from us soon. We are committed to opposing this reckless decision but need to raise substantial funds to support our efforts.”

The FSU are planning to fight it with all they have got and have started the process – see their first pre-action protocol letter to the Government here . However, this is going to require funding, and they are currently raising money to spearhead this excellent cause. Please see full details here.

It is only by banding together as concerned and active citizens that we can fight against this act of legal vandalism and so we encourage you to donate to the FSU fighting fund here. And to join the FSU if you are not already members.

Call to arms:  fight Labour’s plans to repeal HEFOSA

(01.08.24) Freedoms typically get slowly eroded, bit by bit, which is why we all need to remain vigilant and constantly push back, but sometimes they get eroded very quickly. Bridget Phillipson’s announcement, as Secretary of State for Education, on Friday 26th July that she had revoked the implementation of the Higher Education (Freedom of Speech) Act 2023 was a prime example of fast erosion, and by stealth at that.

In essence she decided to go against the intentions of both the House of Commons and the House of Lords, who had passed the Act in the last parliament, and to do so in a way deliberately designed to minimise scrutiny. How? She quietly released the news on a Friday, a classic ploy used by politicians to release information that they don’t want scrutinised too closely.

You can read her announcement here: https://questions-statements.parliament.uk/written-statements/detail/2024-07-26/hcws26  And AFFS’ earlier letter to you here

Even if it’s permissible in law, it shows utter contempt for our key democratic institutions. Consider the fact that this free speech law had been subject to the scrutiny of both chambers of the Houses of Parliament after extensive debate and had received Royal Assent on 11th May 2023.

Bear in mind too that there was nothing about this plan in the Labour Party manifesto. In fact if you search for free speech in their manifesto it gets mentioned just once:

“We will ensure members of devolved legislatures have the same free speech protections enjoyed by MPs at Westminster, so elected representatives can hold power to account.”

Yes, but what about the rest of us? What about academics. What about students? What about speakers?

Labour’s revocation of the main provisions of the Higher Education (Freedom of Speech) Act 2023: AFFS’ thoughts

(29.07.24) Bridget Phillipson, the new Secretary of State for Education, revoked the coming into effect of the main provisions of the Higher Education (Freedom of Speech) Act 2023 (HEFOSA) on 26 July. The HEFOSA was due to bring in important new protections for free speech at English universities on 1 August.

This is a highly unusual procedural move, and an act of legislative vandalism in relation to a statute which was carefully considered and amended in its progress through Parliament, in part to meet concerns raised by and to reflect input from the higher education sector. There was nothing about this in Labour’s recent manifesto, so the Government has no mandate for revoking the HEFOSA.  It is also constitutionally wrong for a minister to overrule the will of Parliament without even informing the Commons in person. We would very much hope that a senior lawyer (and a human rights specialist) like Sir Keir Starmer would see why this step is wrong. Which makes one wonder if he was informed. This looks like an inexperienced minister going on a frolic of her own.

This is a reputational own goal, and perhaps Labour’s first big unforced error, made in haste and with a display of arrogance and disregard for parliament. To appear to be not a friend of free debate, or indeed human rights, so early in your term as Education Secretary, of all things, is extraordinary.

What is interesting, though, is that the existing duties to protect free speech under the Education Act are not much less onerous than much of the contents of HEFOSA, a point Ms Phillipson acknowledges. What is more, the requirements under the Equality Act to prevent discrimination and harassment against people with protected viewpoints remain in full force. Universities will continue under their regulatory conditions of registration to be required to work to protect free speech. Best Free Speech Practice – https://bfsp.uk/universities-and-free-speech – has prepared a statement  (here) indicating the legal origins of the requirements in practice (as identified by  BFSP) to protect free speech at English universities. This shows that the effective repeal of much of HEFOSA actually has little effect on what universities are required to do in practice.

The main effect for free speech of this revocation is that the new OfS complaints scheme and right to sue for losses caused by free speech failures will not come into effect. Less careful universities may kid themselves that they are back to being unaccountable. This is, though, emphatically not the case. Better universities, which are already a long way down the road with preparations for the new regime, will, we hope, continue with the greater urgency they have shown for free speech protection in recent months.

So, in this context, why has Ms Phillipson actually taken this peculiar step? It is not going to contribute to her stated aim to “ensure a stable future for higher education, with strong regulation that means students can thrive” if important protections for dissenters are being removed. We feel sorry for the feminists and other dissidents from enforced orthodoxy. If this move was for a delay to allow universities and students’ unions more time to prepare, that would have had some coherence: but she surely would have made this clearer, and implemented it less destructively. Her action can therefore only be construed as hostile to free speech. Has a proper risk analysis been done? Or has she capitulated to the demands of the universities’ lobbyists without sufficient consideration of the evidence about the problems at our universities which caused the HEFOSA to be required in the first place?

Ms Phillipson has adopted with approval Fit for the Future, an independent review of the Office for Students, led by Sir David Behan and published in July 2024, referring specifically to the key priorities of ensuring quality and regulating in the interests of students. How will this be achieved if legitimate debate is prevented, and academics and students cowed into silence, as has been shown is happening. This is not credible.

Where was Jacqui Smith, the new Universities Minister? One would have hoped that a more experienced head might have counselled against such a step. Was she even consulted?

There have been a number of excellent articles on this. For those interested, we point you to:

Julius Grower’s at: https://dailysceptic.org/2024/07/30/bridget-phillipson-is-wrong-about-the-higher-education-freedom-of-speech-act/

We would also urge you to increase the pressure and write to your MP about this action. If to a Labour MP, protesting against this unconstitutional, arrogant, quite possibly unlawful vandalism, and urging your MP to act to stop further political harm by pushing colleagues to reverse this decision as soon as possible. If to any other party, urge them to protest, and to work for their party to take up the issue vigorously.

We know you will be busy, so, if it would help, please do copy whatever bits from our recent AFFS statement here into the main text of the letter.

You can also use the Free Speech Union letter template here

New Freedom of Speech Codes of Practice

(25.07.24) Universities have been introducing new codes of practice in the run-up to 1 August, when the law changes.

BFSP has produced a compliance checklist for assessing how good these new codes are. Find it here.

We have looked at two codes.

Oxford

Oxford’s new code (https://compliance.admin.ox.ac.uk/freedom-of-speech/code-of-practice ) is good – solid competent stuff, and it looks like they mean business, although the proof will be in the implementation.  We have marked them against BFSP’s checklist: see the results here. Some missing desiderata – nothing on institutional neutrality, for instance. A/B: a bit more will take them to the pure alpha we know they are capable of.

Imperial

We have only had time for a glance at Imperial’s, which looks strong –  they have joined top institutions like (somewhat surprisingly) Harvard at the “serious about free speech” high table by adopting institutional neutrality. They don’t have enough on requirements to comply with their code and not to attack each other over their viewpoints.

Congratulations to the London Universities’ Council For Academic Freedom (LUCAF), whose members contributed to the recent working group and successfully achieved most of what matters for free speech, including that crucial statement of institutional neutrality. Link to Imperial’s Freedom of Speech Code of Practice here.

BMJ Open’s mistreatment of Michael Biggs and John Armstrong, and its implications for BMJ’s reputation  and legal compliance

(28.06.24) We have written twice to British Medical Journal (BMJ) protesting against the mistreatment of Michael Biggs and John Armstrong, whose paper was rejected by the journal BMJ Open because of their viewpoints on matters of current public controversy. It was discovered that the editor misled them about why their pieces were rejected: as Subject Access Request discovered that BML Open’s editor had based the rejection in significant part because of their views on social media, despite positive peer reviews, creating major concerns about the BMJ company’s credibility, integrity and compliance. We are watching the case closely as it looks like there may have been compliance failures and we are amazed that dabbling in the culture war is more important than good science. Please see our main letter here.

BFSP statement re requirements for staff and student behaviour as regards free speech

(20.6.24) Best Free Speech Practice has produced a statement on what requirements HEPs need to put in place re staff and student behaviour in order to comply with their legal obligations under HERA, the Equality Act and the Human Rights Act. It both examines the legal context and complexities (eg when a clash of free speech rights arises) and provides specimen rules.

We attach an exposure draft of this here. A final version will be published after the OfS has published its final Guidance.

We are providing this draft now, as this is an extraordinarily difficult area so we want to add what we hope will be useful thinking as early as possible.

We do not envy HEPs having to wrestle with what requirements they put in place. 

General Election – champions of free speech, not

(15.6.24) We wrote at the beginning of May to a number of Conservative and Labour ministers, shadows and MPs with proposals for their manifestos. It was encouraging to receive a number of positive replies. However, with the unexpected election announcement on 22May, everything went quiet. The Conservatives’ manifestos turned out to contain warm words for free speech, but no commitments. Labour’s contains… er…nothing.

New legal duties for universities; revised BFSP statements re requirements in practice for universities, colleges and students’ unions

(10.6.24) Less than two months to go until the law changes! (Let’s hope nothing goes wrong before then).

BFSP has published revised statements about the new requirements to protect free speech and what they mean in reality, which includes extensive reference to the OfS’ recent draft guidance as to the requirements in practice. 

These are, as far as we know, the only detailed documents of their kind, which combines all the relevant strands of law and their implications, including recent cases under the Equality Act, in one place. We have shared them with the Universities.

They are:

  • Free speech protection at colleges and other constituent institutions of English universities: The law and requirements in practice
  • Free speech protection by Students’ Unions of English universities: The key legal requirements
  • Free speech protection at English universities: The law and requirements in practice From 1 August 2024

See them here

Petition to Stop Debanking

(04.6.24) The Free Speech Union shared the following:

“We’ve just discovered that the changes to the banking rules that would have made it more difficult for payment processors to debank customers for political reasons weren’t made before parliament was dissolved last week.

Persuading the government to toughen up these rules was one of the Free Speech Union’s biggest victories to date, but thanks to the snap election it has fallen by the wayside.

So we’ve started a petition urging all the major political parties to include a promise in their manifestos to make those changes and we urge all of you to sign it.

Click here to sign the petition.”

 We recommend that everyone who cares about free speech signs this and shares it with sympathetic friends.

Donor revolts in the US: Harvard’s statement of institutional neutrality 

(30.5.24) You have no doubt read about the donor revolts in the US. Here is a good update. We have power – and we mustn’t be shy of using it. Do share this with any friends who are donors.

In May 2024, following a scandal that cost its President her job, Harvard University announced that it had accepted a working group’s report and recommendations that the “[u]niversity and its leaders should not . . .  issue official statements about public matters that do not directly affect the university’s core function” as an academic institution. The working group reasoned that when the University “speaks officially on matters outside its institutional area of expertise”, such statements risk compromising the “integrity and credibility” of [its]academic mission and may undermine open inquiry and academic freedom by making “it more difficult for some members of the community to express their views when they differ from the university’s official position”.

This is unequivocal good news.

Cass Report

(28.5.24) Many of you will be aware of the Cass Report into failings in the NHS about the approach to treating children with gender issues. This highlighted (inter alia) how a reliance on bad science (activism presented as science) underlay many of the problems which formed the Tavistock Clinic scandal. Here are some sections from the Summary to the Cass Report:

“Although some think the clinical approach should be based on a social justice model, the NHS works in an evidence-based way.”

“When the Review started, the evidence base, particularly in relation to the use of puberty blockers and masculinising/feminising hormones, had already been shown to be weak. There was, and remains, a lot of misinformation easily accessible online, with opposing sides of the debate pointing to research to justify a position, regardless of the quality of the studies.”

“The University of York’s programme of work has shown that there continues to be a lack of high-quality evidence in this area and disappointingly, as will become clear in this report, attempts to improve the evidence base have been thwarted by a lack of cooperation from the adult gender services.”

This is a game-changer as evidence of what happens when truth (in the shape of scientific evidence) gets suppressed. See the report here

Revised statement reflecting new OfS guidance

(07.05.24) Our related campaign Best Free Speech Practice has just published a revised statement about the new requirements to protect free speech and what they mean in practice, which includes extensive reference to the OFS is draught guidance as to the requirements in practice. 

This is as far as we know the only one of its kind which combines all the relevant strands of law, including recent cases under the Equality Act, in one place. See it here.

OfS Consultation Paper on compliance guidance to HEPs (good news) and our submissions

(05.04.24) The OfS has just issued a Consultation Paper about its guidance to HEPs on various aspects of compliance with the requirements in practice of the revised law as comes into force on 1 August. This is going to be a very important document, and we have been urging the OfS to set out a wide range of actions which we think are required in practice: expressly listing them will make an important difference. The Consultation Paper seems very good as far as it goes, with lots of excellent detail. But it does not address head on some things that are clearly “reasonably practicable” including, vitally, that HEPs are required to have rules against attacking people for their viewpoints, internet pile-ons and the like, and then actively enforce those rules. We will be making detailed submissions.

Statement on English universities’ obligations to protect meeting

(18.03.24) With the law on free speech protection at English universities changing on 1 August, and universities currently focusing on what they need to do to comply with their free speech obligations, BFSP is working hard to produce quality information about what exactly is required in respect of various issues.

Its latest statement is on universities’ obligations to protect meetings and unpopular speakers, in the face of threats of disruption etc. You can find see this statement here.

A statement on the requirements universities should be imposing on their students and staff as regards not attacking people for their viewpoints is nearly ready, as is one on how to deal with free speech crisis and complaints, for instance the actions universities need to take to stop attacks on people for their viewpoints, social media pile-ons and the like. These will appear here when ready.

Equality Act is now free speech’s surprising friend

(09.02.24) We have produced and shared statements on two of the extraordinary cases we mention above: do have a look, as they are surprisingly entertaining (in a “how could they do that” sense) – as well as horrifying.

Fahmy case

Meade case

A statement on the Jo Phoenix/Open University triumph for free speech will be out soon.

We are actually quite optimistic that the whole environment for free speech at our universities is about to improve, and terrible injustices such as Kathleen Stock, Steven Greer and Jo Phoenix suffered will be much harder to repeat.

We’re busy spreading the word about universities’ duties

(30.01.24) We’ve been busy campaigning for better free speech protection while universities are thinking about how to deal with the revised law.

We have been working to communicate to institutions quite how onerous their obligations are, as now is the time that they will be looking closely at their duties and how to implement them in the run up to the 1 August deadline. Have a look at the statements we have sent to:

Universities

Colleges

Students’ unions

We have written to the Russell Group and Universities UK about this – see our Russell Group letter here. Our letters to universities, colleges and students’ unions have covered similar ground.

The OfS is expected to produce guidance on various aspects of this, and we have been writing to them about the need to give detail about the practical implications of the law so universities etc understand what they actually have to do. List of the practical requirements are at Part 3 of our University etc statements.

New free speech law in effect on 1 August: optimism and a lot to do

(20.01.24) It has emerged that the new provisions in the Higher Education and Research Act 2017 will become law on 1 August 2024. These increase the duties on English universities and other providers to protect free speech, and importantly bring in a scheme for complaints to the Office for Students (OfS) and the right to sue universities for free speech failures in the courts. This is going to dramatically focus institutions’ minds.

The full force of the free speech requirements will also apply to colleges and students’ unions, which is good news.

Further, following recent ground-breaking Equality Act cases, universities have to do the following in order to avoid committing unlawful discrimination and harassment. These cases have reminded us all that employers are liable for discrimination and harassment by their employees unless they have taken all reasonable steps to prevent it.

  • Work to prevent their employees and others from attacking each other for their viewpoints. This particularly applies to online pile-ons.
  • Not allow their disciplinary processes to be used as tools of wrongful free speech suppression.
  • Not officially disapprove of viewpoints on controversial matters, as this can quickly constitute harassment or discrimination against dissenters. For instance, two cases have now held that conflating gender-critical views with transphobia can itself be harassment when stated in the wrong context.
  • This leads on to no enforcing contested viewpoints or agendas (as this will disadvantage dissenters and lead to bullying of them) except of course when actually obliged to by the law. The convener of an online meeting was criticised by the Employment Tribunal in one case for expressing personal views in solidarity with one side of a toxic debate: a good example of the problems taking sides causes. While it appears he was sincere in attempting to prevent inappropriate behaviour (and he was not himself held to have harassed the victim), the Tribunal stated that his taking sides provided “the basis, or opened the door, for the subsequent petition and the comments” which constituted the harassment.

These lead inevitably to a requirement to adopt sufficient institutional neutrality in order to avoid actions which lead to unlawful discrimination and harassment. Taking sides in a polarised debate quickly leads to unlawfulness. As readers will understand, this is groundbreaking.

The law is an ass, but not in these cases.

Know your Free Speech Rights statement published

(08.01.24) Our related campaign Best Free Speech Practice (www.bfsp.uk) has published an important “Know Your Rights” statement for academics, students and indeed universities. It has condensed these complex legal issues to one page, which can be used in various ways by the free speech campaigns out there, including for campaigning on campus, and is as far as we know unique.

 See the statement here: https://bfsp.uk/kyr.  A longer (two page) version, which is more technical and more aimed at those who have a current problem, can be found at www.bfsp.uk/universities-and-free-speech.

We are convinced that the various university free speech campaigns could be so much stronger if we work closely together, and a key project for this year is trying to help this happen. With this in mind, we have co-logo’d the KYR statement for our friends at the brilliant Academics for Academic Freedom to distribute widely among their extensive university networks and membership.

Liability of employers for harassment by their staff of people with protected beliefs under the Equality Act:  After the Fahmy case

(04.12.23) The recent Fahmy case, about liability of employers for harassment by their staff of a colleague who held protected beliefs under the Equality Act, is very significant: not because it creates new law but because of the important spotlight it shines on often-overlooked but crucial aspects of the law and its implications. It is further evidence of how strong the protections under the Equality Act are for a range of protected viewpoints. See the statement about the implications of this case produced by our associated project, Best Free Speech Practice (“BFSP”).

The key implications are:

  • Section 109 of the Equality Act provides that anything done by an employee in the course of their employment must be treated as also being done by their employer. An employer has a defence (the “Section 109(4) Defence”) if it can show that it took all reasonable steps to prevent the employee from doing the alleged act, or anything of that description.
  • The convener of a teams meeting on a sensitive topic was criticised by the Employment Tribunal for expressing personal views in solidarity with one side of the debate, although it concluded that his actions did not themselves cross the threshold for constituting harassment. The Tribunal stated that his taking sides provided “the basis, or opened the door, for the subsequent petition and the comments” which constituted the harassment in the Fahmy case. This underlines the extreme importance of maintaining institutional neutrality, which we are confident is required by universities’ legal duty to secure free speech.
  • The  following were stated as (together) constituting harassment: describing gender-critical views as “bigotry”, a “cancer that needs to be removed”, “should not be tolerated” and “discriminatory, transphobic”, and likening them to racism and sexism; and calling the LBG Alliance (which promotes gender-critical viewpoints and which Ms Fahmy was defending) a “cultural parasite and a glorified hate group that has [….] supporters that also happen to be neo-nazis, homophobes and Islamophobes”. It is not clear how many of these statements it would have taken in order for the threshold to have been crossed.
  • To avoid liability for unlawful harassment by their employees of colleagues in respect of their viewpoints, employers must be able to show that they qualify for the Section 109(4) Defence, i.e. they have taken all reasonable steps to prevent their employees from committing that sort of harassment. This requires an employer to take the various steps which BFSP outlines in its statement.
  • It is also relevant for cases we have already been involved in. For instance we have written the following letters pointing out that previous failures we have written about have also included attributed harassment of this sort. To Cambridge and Caius College  about the Helen Joyce affair.

This area is going to have profound implications for free speech protection going forward. See for instance a letter to Edinburgh about a recent attempt to get a book launch cancelled.

We will be writing in due course to Bristol about harassment attributable to it in the Steven Greer/BRISOC scandal.

We have written to universities’ risk officers/committees pointing out the risks that universities take by not complying carefully with their legal obligations to protect free speech, which most of them currently fail to do.

Universities, Risk Officers and Free Speech Failures

(27.09.23) We have written to universities’ risk officers/committees pointing out the risks that universities take by not complying carefully with their legal obligations to protect free speech, which most of them currently fail to do.

Risk committees should be independent from normal management in order to be able to pick up on risks created by management themselves. They should therefore be, within the university context, relatively independent thinking and should care about getting legal compliance right.   

See our letter here.

AFFS Uncovers that leading universities spend over 200 times more on diversity than on free speech protection

(18.09.23)

  • FOI request campaign reveals over £19.5 million EDI spend across leading UK universities.
  • Only two of those that provided information said they employed anyone with specific freedom of speech responsibilities.
  • EDI spend c.214 times greater than on free speech protection. 

We’ve done it. After months of hard work, we finally have the results of our investigation into the spending and importance that leading UK universities place on Free Speech vs EDI.

EDI as a source of free speech problems

Institutional neutrality about arguable and contested issues was once the norm at UK universities. Recently, however, this neutrality has been abandoned as their Equality Diversity and Inclusion (EDI) departments, which seem to be growing inexorably, push often controversial agendas involving gender, critical race theory and the need to decolonise curricula.

These agendas are nakedly ideological, have little basis in fact and science and do not reflect what the majority of people think. They are also often at odds with universities’ obligations to protect free speech. Nonetheless, these agendas, often involving participation in programmes promoted by external campaign groups like Stonewall and Advance HE, are sanctioned at the highest management levels. So-called training for both students and staff often requires agreement with the contested views embedded in the EDI agenda. Self-censorship is rife.

AFFS Freedom of Information Requests

In light of these concerns, AFFS sent a Freedom of Information Request  to over 50 leading universities asking how many people were employed and how much was spent in relation to EDI and protecting  freedom of speech, respectively. The responses have revealed the following massive disparity:

  • The 47 universities that provided relevant information employed 515 dedicated EDI staff. An average of 11 each.
  • The total EDI cost across the 42 universities that provided financial information was £19.5 million: £17.9 million on staff and £1.6 million on external resources.
  • These two between them employed not more than 5 people. One reported staff costs of £71,000, another said it spent just over £20,000 on external free speech resources.
  • Overall, therefore, around 214 times as much money appears to be being spent by our leading universities on EDI as on free speech protection.

Universities clearly had very different approaches to answering the FOI requests. AFFS therefore does not focus on the apparent relative performance of individual universities. This project was aimed at obtaining a good overview of the relative importance given by universities to EDI and free speech protection. In this, AFFS believe it has succeeded.

What universities should be doing to protect free speech better

The fact that these universities employ virtually no-one to ensure compliance with their free speech obligations suggests that most are not serious about free speech protection. Despite the stated expectations of the Office for Students, they appear to be doing little more than paying lip service to their statutory duties while continuing to fail to comply with them.

AFFS believes that the appointment of senior and properly empowered free speech officers is essential to ensuring free speech compliance. However, matters are unlikely to improve without a change of culture. A return to institutional neutrality and the reduction of bloated EDI departments would reverse the ideological capture of our universities and the suppression of dissenting viewpoints, and thus contribute very significantly to bringing that change about.

If you would like to read into this further, the key documents comprising this project are set out here, including a detailed statement about this project and a spreadsheet of the results. 

Here is a link to an article on our project in the Evening Standard: 

https://www.standard.co.uk/news/uk/freedom-speech-diversity-equality-universities-b1106724.html

and in The Herald:

https://www.heraldscotland.com/politics/23789734.action-need-take-free-speech/

Our associated campaign BFSP issues detailed statements about the new requirements for protecting free speech

(31.07.23) Further to our earlier post regarding the Higher Education (Freedom of Speech) Act finally becoming law, we are delighted to announce that detailed information on how these enhanced and often complex obligations might look in practice, is now available on our sister campaign’s website as a series of statements and requirements. Please see: https://bfsp.uk/universities-higher-education.

We recently shared these statements and requirements with all English VCs and other officers and invited them to work collaboratively with us to interpret these new requirements for their institutions.

We are sharing this so you can see the ambition and trajectory of our overall work. BFSP will be publishing more statements over time, including a very detailed statement of the relevant law and requirements in practice. These will we hope help set new standards, and will be used by AFFS in our campaigning.

We hope that the detail-minded among you – or academics facing possible issues – find this useful and interesting.

Best Free Speech Practice 

(27.01.23) We have been developing a sister campaign, Best Free Speech Practice (BFSP), which will work to identify what the law is actually going to require in practice once the current free speech bill becomes law. Its website has just been launched.

BFSP is working on a detailed statement of the law and what it actually requires, which will provide a basis for AFFS’ future campaigning, as it will identify the standards that universities will need to achieve, and actions they will have to take: they are currently way off the mark.

In the meantime, BFSP has issued the following statements:

Protected viewpoints under the Equality Act following the Forstater case

Minimum Requirements for Staff and Student behaviour

Compulsory EDI training

Free Speech Officers

QAA Decolonising the curriculum

Some good news: the OfS is looking a lot more proactive

(20.01.23) In the throes of what at times feels a long and unrewarding slog, it is wonderful to see some good news. The Office for Students issued an extraordinarily positive statement about free speech shortly before Christmas. It signals a much more proactive approach to pushing universities to improve free speech protection. We are very cautious about talk of the tide turning, but this is a very good sign.

QAA embracing Critical Race Theory and “decolonisation”: free speech aspects 

(06.12.22) The QAA has controversially issued revised Benchmark Statements for university courses which incorporate a “decolonisation” agenda into subjects as unlikely as computer science.  We have published a statement about the free speech legal and compliance implications and risks for universities of implementing these statements. Great care is going to be needed when implementing the revised Benchmark Statements to ensure compliance with these obligations.  

Letter to all Vice-Chancellors

(09.11.22) Following our launch, on 9 November 2022, we wrote to the Vice-Chancellors of English universities to introduce AFFS, explain its work and aims and invite constructive dialogue. See our letter here.