The Office for Students wanted the public’s views on its draft guidance on freedom of speech in universities, which it wants to bring in from 1 August this year. Christian Concern wants a framework to be in place that will protect manifestations of belief on moral issues in higher education. In our response we said that:
“For an institution of higher education to justify an interference with speech rights, it must show that it was necessary to do so in a democratic society and that no less intrusive means were available to them.”
We maintained that freedom of speech in universities should not be undermined by giving into the feelings of complainants who suffer no harm from others’ expression of views (apart from being upset due to holding different beliefs). Our response leaned on the case law of the European Court of Human Rights, which has generally protected not only ideas that are favourably received, or treated as indifferent, but also those that ‘offend, shock or disturb’.
We disagreed with the Russell Group’s wish to see examples of Islamophobia and transphobia in this guidance as example of unlawful speech. This is very concerning given the Russell Group represents the most elite universities. Criticism and disagreement of ideas is not illegal and should not be treated as if it were ‘phobic’ or hate speech.
The casework of the Christian Legal Centre includes numerous clients whose free speech has been unjustly curtailed by universities. At times merely manifesting Christian Biblically-based beliefs has led to students being removed from university courses, or threatened with removal. The most egregious example of this was social work student Felix Ngole. Only after a Court of Appeal judgment in his favour was he able to conclude his studies. Our lawyers also supported a nursing student who had been suspended from her course merely for attending pro-life events and peacefully protesting as was her right. Despite being allowed to return eventually she had to study for another year due to being suspended. A final year student was subjected to an unnecessary disciplinary investigation for alleged homophobic comments outside of lectures and tutorials during their exams. This caused serious and unnecessary stress at this crucial time. The truth is that none of these cases should ever have had to be brought forward.
Whilst Christian Concern recommended further improvements to the guidelines in line with existing case law, these proposals go some way towards creating a better teaching and learning environment for all including Christians.
You can read our response to the consultation here:
Question 1: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 1 on the ‘secure’ duties and the ‘code’ duties?
Christian Concern welcomes any efforts by the OfS to strengthen freedom of speech at Higher Education providers and their constituent institutions. Securing freedom of speech, as far as is “reasonably practicable”, is laudable so long as the guidance (as relates to actual legislative tools) is effective. The operative term “reasonably practicable” must be defined clearly and in line with the overall goal of securing freedom of expression. It must take into account the limited remit public bodies have in limiting speech based on content as defined by Article 10 ECHR. Equally important, for Christians, and like-minded individuals, who hold and wish to manifest their beliefs on sensitive moral issues, a framework must be in place to protect such manifestations from viewpoint discrimination and disciplinary action.
Freedom of speech is a cornerstone of a free society and the lifeblood of any institution of Higher Education.
A university must balance the sincerely held religious and philosophical beliefs of its students, staff and guest speakers when making any decision which interferes with their right to manifest their beliefs. Cf. Eweida and Others v. the United Kingdom, 48420/10, 36516/10, 51671/10, 59842/10, HEJUD [2013] ECHR 37 (15 January 2013), paras 81-84.
While the freedom to manifest beliefs and freedom of expression are qualified rights, they are nevertheless fundamental rights. For an institution of higher education to justify an interference with speech rights, it must show that it was necessary to do so in a democratic society and that no less intrusive means were available to them:
…the Court would reiterate that, in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned. In the Court’s opinion, in order to satisfy the proportionality requirement, the burden is on the authorities to show that no such measures were available” ECHR, Case of Biblical Centre of the Chuvash Republic v. Russia, application no. 33202/08, judgment of 12 June, 2014, para. 58.
Catering to the feelings of complainants who suffer no harm (apart from upset because they hold a different belief), or public feelings in general, should not trump the right to freedom of speech:
In the Court’s view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto. ECHR, Vajnai v Hungary, application no. 33629/06, judgment of 08 July 2008, para. 57.
The European Court of Human Rights has repeatedly recognised that “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self fulfillment.” See e.g.: Dichand v. Austria, App. No. 29271/95 § 37 (Eur. Ct. H.R. Feb. 26, 2002); Marônek v. Slovakia, 2001-III Eur. Ct. H.R. 337, 349; Thoma v. Luxembourg, 2001-III Eur. Ct. H.R. 67, 84; See also: Şener v. Turkey, App. No. 26680/95 § 39(i) (Eur. Ct. H.R. July 18, 2000); Lingens v. Austria, 103 Eur. Ct. H.R. 11, 26 (1986).
It has also been explicit and consistent that freedom of expression protects not only “ ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also [protects] those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at 23 (1976); accord Dichand, App. No. 29271/95 § 37; Marônek, 2001-III Eur. Ct. H.R. at 349; Thoma, 2001-III Eur. Ct. H.R. at 84; Jerusalem v. Austria, 2001-II Eur. Ct. H.R. 69, 81.
It is therefore appropriate to recall that protection for freedom of expression pertains to all views and opinions, whether spoken in private, uttered in a classroom, or announced on a loudspeaker. Goodwin v United Kingdom, 1996-II Eur. Ct. H.R. at 500 (discussing the “[p]rotection of journalistic sources” as a part of freedom of expression). Ideas have generally enjoyed strong protection. The European Court of Human Rights has held that the dissemination of ideas, even those strongly suspected of being false, enjoy the protections of Article 10. Salov v. Ukraine, 2005-VIII Eur. Ct. H.R. 143, 180.The responsibility of discerning truth from falsehood has in this sense been placed on the proper figure, the listener.
As the Court of Appeal reminded us earlier this year, it is trite law that speech does not lose protection just because the information or ideas that it conveys are offensive or upsetting, and that this principle is firmly established both in the common law and Strasbourg jurisprudence. Rex v Casserly [2024] EWCA Crim 25, paragraph 37.
The definition of what amounts to unlawful speech should be very narrowly drawn. As the guidance suggests, reference should be made to the Article 10 jurisprudence of the Strasbourg court.
So, for example, the Russell Group’s position on the OfS’s approach to free speech states that they would like to see examples of Islamophobia and transphobia is the guidance. See: rg-brief_ofsapproachfreespeech.pdf (russellgroup.ac.uk). For such a massive provider, they seem to be missing the point entirely by conflating political correctness with legality. Certainly, there may be instances where speech directed at a Muslim, or Muslims, or someone who identifies as transgender, may reach the level of illegality. The vast majority of times, however, it won’t. This is where having an objective standard of legality is so important, as there are many agenda driven campaigners who would define any criticism, or even disagreement with, Islam or gender identity ideology as being phobic and therefore ‘hate’ speech. The Public Order Act 1986 already criminalises certain expressions related to protected characteristics as public order offences or incitement to hatred. Anything short of this standard is lawful speech.
The dissenting opinion in Vejdeland v Sweden of Judge András Sajó, joined by Judges Vladimiro Zagrebelsky and Nona Tsotsoria, correctly warned that:
Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go ‘against the spirit’ of the Convention. But ‘spirits’ do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous. Vejdeland v. Sweden, App. No. 1813/07 (Eur. Ct. H.R. Feb. 9, 2012), dissenting opinion of Judge András Sajó, §§9-10.
Question 2: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 2 on free speech within the law?
Christian Concern welcomes the introduction of language into section 2 about the public sector equality duty owed to students, staff, and guests. It is the lived experience of our organisation that the mere manifestation of biblical and other Christian beliefs can lead, and has led, to removal from a course of studies or a threat of removal. Christian Concern supported Felix Ngole, who was removed from his course of studies at Sheffield University, for expressing biblical beliefs about homosexuality on a social media platform. It took Felix several years, and a Court of Appeal judgment, to finally get justice and complete his studies.
We have also supported a pro-life volunteer who was suspended from her course pending disciplinary procedures simply for attending pro-life events and exercising her right of peaceful protest. The individual, a nursing student, was eventually allowed to return but was forced to extend her studies another year as a result of the suspension.
We have also supported a social work student who was removed from her work placement for expressing Christian beliefs about homosexual behaviour when pressed upon the issue by colleagues in an inherently non-work-related conversation. She likewise lost a year in her studies as a result.
In another instance, we assisted a Christian law student who was subject to a disciplinary investigation because she was alleged to make homophobic comments when out at a pub with fellow students. The comments were in fact far from being hateful, and in actuality, was merely the student responding to a direct question about how Christians can believe what they believe about homosexual behaviour. While the student was exonerated, the investigation was undertaken during final exams and caused immense and unnecessary stress during a period when they should have been focusing solely on their studies.
As per the guidance’s discussion on the Equality Act 2010, it should be noted that the Act, in relation to higher education, does not apply to the protected characteristic of marriage and civil partnership (see: s. 90 EA2010). Nor does the Act apply to the content of the curriculum. (see: s. 94 EA2010). Moreover, the provision on harassment applies only to a student, a person who has applied for admission to be a student, and a disabled person or holds or has applied for a qualification conferred by the institution. (see: s. 91(5) EA2010). The Act applies only to acts of discrimination or harassment done by the responsible body itself, and not by other students.
It is also fundamentally important, that the expression of religious beliefs does not amount to discrimination within the meaning of the Equality Act. R (Ngole) v The University of Sheffield [2019] EWCA Civ 1127, paras. 5(10), 135-137. It is therefore vital that the guidance is clear that the correlation between speech and discrimination is very limited, and applies ONLY to how a responsible body provides education to a student or if it subjects a student to any other detriment. (see: s. 91(2)(a,f) EA2010). Protecting students from ideas expressed by other students, staff or guest speakers that they may find discriminatory, is not something which is covered by the Equality Act and should be considered an interference with freedom of expression.
As regards the Equality Act 2010 not applying to the curriculum, we wish to draw attention to the problem of the Russell Group’s published response to the present consultation stating that ‘Islamophobic’ speech is unlawful. This unfounded approach is what led to Professor Steven Greer leaving Bristol University Law School, based on the false claim that his curriculum and speech in lectures were Islamophobic.
https://www.bbc.co.uk/news/uk-england-bristol-64704670
Despite finding no evidence to substantiate the campaign by Bristol University Islamic Society against Professor Greer, Bristol University’s complaint outcome stated that it recognised BRISOC’s ‘concern’.
https://bristol.ac.uk/news/2021/october/complaint-outcome.html
In reality, Islamophobia is a contested concept with Islamist roots and there is no agreed definition of it in UK government circles. It is well-known as a concept routinely weaponised by Islamists to silence criticism of their ideology, strategy and tactics. It is relevant that the current government has rejected the APPG definition of Islamophobia, undoubtedly for this reason.
We also note that Daniel Allington’s independent report for the Commission for Countering Extremism on ‘The national research environment for the study of extremism in the UK’ found a hostile culture in universities for researching jihadism. In his interviews with academic researchers, Allington said this:
“Several interviewees expressed the view that simply studying Jihadism can result in a researcher’s being labelled as racist or Islamophobic by others in the field, with one of the most senior suggesting that this had caused university-based researchers to avoid researching the topic.”
https://www.gov.uk/government/publications/national-research-environment-for-the-study-of-extremism-in-the-uk/the-national-research-environment-for-the-study-of-extremism-in-the-uk-accessible
Allington was particularly critical of the Centre for Research and Evidence on Security Threats (CREST) at Lancaster University for skewing university-based research on extremism. Further to this we have found egregious anti-Christian bias in CREST publications which omit crucial information on extremist targeting of Christians.
https://christianconcern.com/comment/why-does-the-uk-lack-research-on-islamist-extremism-and-terrorism/
It is unknown whether this bias will have affected freedom of speech among extremism researchers and students in universities in England. However censorship of information about extremist targeting of Christians within the UK may well contribute to or be linked to a discriminatory approach towards Christian staff and students in universities.
Question 3: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 3 on what are ‘reasonably practicable steps’? If you disagree with any of the examples in this section, please state reasons for thinking that the relevant legal duties do not apply to that example in the way that we have set out.
Christian Concern supports the content of section 3 and the examples used to assist institutions of higher education in determining both their positive and negative obligations in relation to securing free speech. Further examples, however, should be provided on more sensitive issues.
Christian Concern has worked to support (including through litigation), several pro-life societies who were either no platformed because of their beliefs, denied membership, or harassed by their students’ unions by requiring them to attend training or take other measures not required of other student societies. In a number of these cases, the university allowed the pro-life society members to be verbally assaulted and even threatened with physical harm by other university students who disagreed with their views. An example where a student society is being treated less favourably because of its views would be welcome.
Christian Concern, itself, has been subjected to booking cancellations for its Wilberforce Academy by several well-known colleges. The Wilberforce Academy is a training seminar providing lectures on Christian worldview formation to young people of university age. Its speakers are lawyers, economists, pastors, and academics of good repute. The subject matter of the week-long training is often, if not always, misrepresented as promoting contentious ideas which were never part of the training. Reasons for being denied bookings include protecting students from the Christian ideas being put forward or that the training goes against the college’s diversity and inclusivity aims. An example pertaining to an institution of higher education’s obligations to members of the public booking their venue would be a welcome edition.
As the guidance reflects, institutions of higher education owe a statutory duty to protect freedom of expression. Section 43(1) Education (No. 2) Act 1986 requires an institution of higher education to: “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment.” Freedom of expression lies at the heart of the central purpose of education; that being the imparting and robust discussion of ideas.
The risk of disorder or upset is not a legitimate ground for a responsible body to fail to discharge its statutory obligations under Section 43(1):
…Thus, we conclude, that on a true construction of section 43 the duty imposed on the university by subsection (1) is local to the members of the university and its premises. Its duty is to ensure, so far as is reasonably practicable, that those whom it may control, that is to say its members, students and employees, do not prevent the exercise of freedom of speech within the law by other members, students and employees and by visiting speakers, in places under its control. To require the university in the discharge of its duty under subsection (1) to take into consideration persons and places outside its control would be, in our view, to impose upon it an intolerable burden which Parliament cannot possibly have intended the university to bear. R v University of Liverpool ex parte Caesar-Gordon [1991] 1 QB 124, p132(h ff.).
Question 4: Do you have any comments on the guidance in our proposed Regulatory advice relating to section 4 on steps to secure freedom of speech? If you disagree with any of the examples in this section, please state reasons for thinking that the relevant legal duties do not apply to that example in the way that we have set out.
Christian Concerns supports the very clear statement made in the guidance at paragraph 41: “Where a step is reasonably practicable for an organisation, it must be taken.” It further agrees with all of the subsections within section 4, and the detailed attention paid to various scenarios affecting freedom of speech.
We endorse all of the examples used in section 4, and in particular, applaud the OfS for taking on the issues of pro-life views, gender critical views, and the rights of Christian students in its examples.
We note, in relation to example 11 found at page 16 of the guidance, that the protection of speech relating to misgendering should be more robust. In Forstater v CGD Europe and Others, UKEAT/0105/20/JOJ, the EAT held that it was wrong for her employer to stop offering her consultancy work and for not renewing her visiting fellowship because of her belief that a biological man could not be a woman. The EAT further held that it was a right not to have to believe in gender identity belief as a philosophy or worldview (Paragraph 108). The judgment also notes that not all people who identify as “trans” qualify for protection as “trans” under the Equality Act 2010 (i.e. gender identity belief is not synonymous with the protected characteristic of gender reassignment). Paragraph 118(c).
Moreover, Forstater holds that blanket requirements relating to gender pronouns irrespective of specific circumstances is an impermissible restriction on freedom of belief. This is reaffirmed in Mackereth v Department of Work and Pensions & Advanced Personnel Management Group (UK) Limited [2022] EAT 99, paragraphs 88-90.
In the Mackereth v DWP case, the ET and EAT wrestled with the question of a disability assessor (also a medical doctor) who, as a matter of conscience, could not use a service user’s desired gender pronoun. As a result, he was dismissed from the position. It is first and foremost of note that the UKEAT went to great lengths to try and evidence that the Respondents did seek to accommodate Dr Mackereth’s beliefs. At paragraph 53, the EAT (analysing the ET’s earlier judgment) highlights that the DWP had considered giving him a desk job or triaging patients in order to accommodate his belief. A third alternative was discussed at paragraph 54. For different reasons, the alternatives were not feasible.
Nevertheless, a key facet of the Mackereth case is the fact that the EAT believed that the DWP did seek to accommodate his belief and did balance all of the competing factors. A policy requiring employees to acquiesce to gender identity belief without any form of accommodation would therefore, almost certainly, fail to withstand judicial scrutiny. The same would be true, we aver, in relation to an policy requiring staff and students to use a person’s desired pronouns.
On the issue of academic freedom, it is noteworthy that it is bolstered by Section 202 of the Education Reform Act 1998, which places a statutory obligation on universities “to have regard to the need to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.” Section 202(2)(a). In doing so, a higher education provider is obliged “to apply the principles of justice and fairness.” Section 202(2)(c). The same principle should logically be extended to students.
Further obligations stem from the creation of the Office of Students, the mandate of which is to guarantee academic freedom: “(i) to question and test received wisdom, and (ii) to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.” Section 2(8)(c), Higher Education and Research Act 2017. Section 36 of the Higher Education and Research Act 2017 also creates an obligation on the Office of Students to protect academic freedom.
Article 13 of the International Covenant on Economic, Cultural and Social Rights is one of many binding international treaties that establishes a right to education. United Nations, Treaty Series, vol. 993, p. 3, 16 December 1966. The Committee responsible for compliance with the Convention, has stated that: “In the light of its examination of numerous States parties’ reports, the Committee has formed the view that the right to education can only be enjoyed if accompanied by the academic freedom of staff and students.” Committee on Economic, Social and Cultural Rights, General Comment 13, The right to education (Twenty-first session, 1999), U.N. Doc. E/C.12/1999/10 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 70 (2003). It has therefore inferred into Article 13 a human right to academic freedom. Id., §38-40.
The importance of this right has also been reiterated by the Parliamentary Assembly of the Council of Europe in Recommendation 1762 (2006):
- academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;
- history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation. A(4.1, 4.3).
Christian Concern supported the case of James Caspian, a clinician and graduate student who was refused permission from Bath Spa University to pursue a master’s dissertation of transgender regret. See: https://christianconcern.com/news/researcher-blocked-from-study-into-trans-regret-takes-case-to-europe/. The were no academic reasons for permission to be refused; instead the university based its decision on the reputational concerns of the university and potential public discontent with the dissertation.
In another instance, Christian Concern supported a tenured professor who was subjected to a disciplinary investigation by his employers for having a senior leadership role in an organisation which issued a video that warned against the effects of gender ideology in education and allowing minors to socially transition (views which are fully in accord with the current DfE draft guidance on gender question children).
Lastly, in relation to the generous use of the word ‘should’ rather than ‘must’ in the guidance, Christian Concern recognises the limitations on guidance by its very nature. In Dunnachie v Kingston upon Hull City Council [2004] UKHL 36, pars. 4, 23-25, the Lords held that the requirement to have ‘regard’ to a specified list of factors means that the authority subject to the requirement must consider each factor separately. The obligation relating to guidance would be that the responsible body must rigorously consider the guidance in its decision making process and must justify any departure from the terms set out in the guidance. Higher education providers should therefore be made aware that the guidance is far more than merely aspirational, but that there are consequences from departing from it where justification is lacking.
Paragraph 43 of the guidance needs to be strengthened. Students already enrolled on courses should not be refused degrees or other academic qualifications on the grounds of their opinions or ideas.
Paragraph 44 of the guidance may need to be strengthened in order to protect freedom of speech. It is not clear why this paragraph does not also include the appointment of academics on either permanent or temporary contracts.
Paragraph 46 does not sufficiently take into consideration religious freedom of independent theological institutions that are accredited by universities. Christian theological institutions typically exist for training clergy and lay workers and require a commitment of belief for entry as well as for academic staff. This is voluntary in the sense that individuals choose to opt into this arrangement. The existence of Christian theological institutions such as seminaries and colleges providing higher education has a long history in England stretching back centuries. The relationship of such institutions with universities also has a long history. These guidelines need to be amended such that universities do not undermine the criteria for religious freedom and freedom of speech set out by independent institutions with whom they have accrediting relationships.
Question 5: Do you have any other comments on our proposed Regulatory advice?
Christian Concern welcomes the guidance and supports the steps being taken by the OfS to secure freedom of expression on such broad grounds. We are particularly pleased that the guidance has not shied away from contentious topics such as pro-life activity, religion and gender critical beliefs. It is precisely the ‘tough cases’, where contention exists, that rigourous debate is most necessary. In fact, the ECHR provides even greater protection for contentious ideas that speak to a matter of public concern, than it does to more anodyne matters. Cf. Annen v Germany, application no. 3690/10, judgment of 26 November 2015.
Question 6: Do you have any comments on our proposed amendments to the OfS regulatory framework?
While the proposed amendments are a positive development, the regulatory framework still fails to provide a private law cause of action to give teeth to the statutory duties created. This effects individuals or groups deprived of their freedom of expression, or who suffer a detriment because of their having exercised their freedom of expression in a higher education setting. While any decision of the OfS is judicially reviewable, judicial review does not provide financial damages to remedy a breach of the statutory duty.
Any Article 10 case may be undermined by the fact that the OfS offers a complaints procedure (i.e. a court may question standing or limit damages where the Claimant has failed to use the complaint’s procedure or where the complaint’s procedure was effective but did not fully remedy the injury done to the complainant). In these circumstances, where the procedure fails to make the claimant whole, redress for both the breach of the Convention right and the statutory obligation should be possible.
Christian Concern would also recommend referencing Article 10 ECHR, and Section 12 of the Human Rights Act 1998, in its proposed amendment to Section 2 of HERA. For example:
“The need to promote the importance of freedom of speech within the law, as guaranteed by Article 10 of the Convention, in the provision of higher education by English higher education providers with reference to s. 12 of the Human Rights Act 1998.” [suggested language in italics].
Question 7: Do you have any comments on our proposed approach to recovery of costs?
We fully support the proposal regarding recovery of costs. Any investigative, administrative or other expenses incurred by the OfS where a finding of wrongdoing is levied against a registered provider should be visited upon the bad actor and not the taxpayer.
Question 8: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.
The proposals themselves are very clear and helpful. The proposed test found at paragraph 36 (section 2), in defining what amounts to taking reasonably practicable steps to secure freedom of expression, largely compliments the proportionality test required under domestic case-law. The Supreme Court in Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39 considered the question of proportionality in the context of an infringement of the ECHR, Lord Sumption concluded in his leading judgment that the factual matrix of a case must be examined so as to determine: (a) whether its objective is sufficiently important to justify the limitation of a fundamental right; (b) whether it is rationally connected to the objective; (c) whether a less intrusive measure could have been used; (d) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
What is less clear is the interplay between equality law and freedom of expression. Instances where freedom of expression in higher education may offend equality law are limited, as detailed above in our response to question 2. Therefore, the extended focus of the guidance on this issue may embolden registered providers and their constituent institutions to limit freedom of expression in the name of furthering equality principles and use the guidance as cover for doing so.
Question 9: In your view, are there ways in which the objectives of this consultation could be delivered more efficiently or effectively than proposed here?
As noted above at question 6, the creation of a private law cause of action to challenge breaches of the statutory duty to promote freedom of expression would give teeth to the regulatory framework and meaning above and beyond what the complaints’ procedure can offer to effected individuals.
Question 10: Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?
Christian Concern is fully supportive of the manner in which the proposed guidance clarifies the PSED and equality obligations relating to religion or belief. This is an area which has been largely neglected by government guidance to the detriment of Christians across England.
We further argue that the proposals themselves would have no marked effect on other protected characteristics since the proposals merely aim to protect speech which is already lawful.
Question 11: Do you have any comments about any unintended consequences of these proposals, for example, for particular types of provider, constituent institution or relevant students’ union or for any particular types of student?
The unintended consequences of securing freedom of expression that is already lawful should be minimal. What has happened in higher education in recent years, where speech codes and students’ unions regulations and resolutions have been used as a sword to attack viewpoints (and individuals and groups who hold those viewpoints), is an attack of the very future of this country. Places of learning meant to challenge conventional wisdom and promote a diversity of ideas, have done the opposite. Places of higher education are providing their students a narrow worldview which vilifies and punishes the manifestation of any beliefs to the contrary. Freedom of religion, freedom of expression and freedom of association have all been under assault. The examples provided in this submission of Christian Concern’s work in this specific area highlight the real world need to take active and effective steps to reclaim places of higher education as marketplaces of ideas and innovation.
Catering to the sensitives of a minority of students, and caving in to the demands of activist mobs, does not prepare students for a place in the real world. What it does is it essentially takes the lifeblood out of higher education and removes pluralism from the culture. We therefore welcome the proposals and amendments put forward in this consultation.
