OfS framework ‘undermines Prevent guidance’

The publication yesterday of voluminous consultation documents on the proposed Office for Students regulatory framework has attracted a lot of immediate comment, including on the proposals relating to freedom of speech on campus.

Leaving aside the admittedly quite significant question of whether there is in fact sufficient evidence of infringement of free speech on campuses to justify regulatory intervention, the interrelationship between the proposed registration condition and the Prevent duty made me wonder whether the government was seeking to have its cake and eat it when it comes to free speech on campus.

“Lots of vigorous debate, please, including the unpopular, the challenging and the edgy, but not too much and only of the kind we like: we are British after all, and those revered British values (rule of law, anyone?) mustn’t be undermined.”

So, do the two duties conflict? And, if so, how might institutions be expected to resolve the tensions?

The Prevent duty is the duty to have regard to the need to prevent people from being drawn into terrorism. The higher education guidance on Prevent goes further, requiring institutions to prevent people from being drawn into extremism, including non-violent extremism, which is defined as “vocal or active opposition to British values”. This includes ensuring that events, where there is a risk of extremist views that could draw people into terrorism, must not be allowed to proceed unless said risk can be “fully mitigated”. So, on the face of it, the Prevent guidance, if not the duty itself, extends well beyond the encouragement of terrorist sympathies and acts on views that are not only merely “extreme” but non-violently so.

The proposed registration condition is built on the OfS’ stated belief that rigorous debate, critical thinking and the ability to expound and challenge controversial ideas lie at the heart of higher education. The guidance draws a distinction between extremism and unlawful extremism in a way that the Prevent guidance doesn’t.

The proposed registration condition contains some rather strange wording about provisions in governing documents, including a requirement to have the already statutorily required code of practice on free speech and an expectation that the governing body will ensure compliance with both. The indicators of non-compliance include a failure to comply with the governing documents or the code and/or being the subject of an “adverse finding” about freedom of speech.

The consequence of non-compliance is regulatory intervention and possible sanctions, such as a fine, suspension or, in extreme cases, deregistration.

So there does appear, on the face of it, to be a conflict. The conclusions of the court in a case earlier this year (Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin)), may, however, shed some further light on how the conflict between free speech and the Prevent duty can be addressed by institutions.

In that case, the court accepted that the Prevent duty is only one of many factors to which institutions must have regard. The duty to ensure, so far as is reasonably practicable, free speech and academic freedom, within the law, are two expressly stated factors, but they are not exclusive: institutional values and the level of actual risk are two further factors. Also relevant was the fact that the Prevent guidance is just that: guidance. It is not a direction (unlike, say, a registration condition).

Compliance with a registration condition prioritising free speech, the breach of which could lead to significant adverse implications for the institution’s continued existence, is a very valid consideration against which to weigh the Prevent duty and guidance. Institutions criticised in future for allowing controversial speakers may find the registration condition offers a helpful defence.

In the Butt case, the court concluded that the references in the Prevent guidance to extremism and non-violent extremism were poorly drafted and should be read in the context of the underlying statutory duty that referred to the narrower question of terrorism. Therefore, the event or speaker must in some way pose a risk of drawing others into terrorism; extremism that does not create such a risk is not caught by the guidance, regardless of how intrinsically undesirable it may be.

This is consistent with the OfS’ reference to “unlawful extremism” rather than extremism per se.

Finally, the court in Butt acknowledged that there was considerable scope for judgment and debate within institutions about how to follow the Prevent guidance. It recognised that different approaches between institutions were perfectly possible, reflecting their individual circumstances and the assessment of risk that they had made. 

So, for example, the processes by which external speakers were to be allowed to speak on campus, the rules with which those speakers were expected to abide, and the internal escalation of decision-making about controversial speakers and events all varied from institution to institution. The OfS consultation also expressly recognises this potential for divergence.

The effect of the Butt case and the proposed registration condition is that the existence of the Prevent duty and accompanying guidance is not (and never was) a “get out of jail free” card for institutions to avoid hosting controversial events. Instead, institutions need to show how the decision was made with particular regard to the free speech, free expression and academic freedom duties that they are subject to. In every case, institutions need to be able to defend the decision by reference to the risk that people might be drawn into terrorism rather than by the intrinsic undesirability of extremist views themselves.

For all these reasons, while the government may have wanted to have its free speech cake and eat it, the effect of the OfS registration condition appears to be to undermine the force of the Prevent guidance and not the other way around.

Many in the sector will welcome this as a return to sanity. However, the existence of the apparent tension between the two strands of regulation means that institutional decisions on whether to permit or ban events will be subjected to even greater scrutiny and the reasons for those decisions will need to be robust, transparent and risk-based.

Smita Jamdar is partner and head of education at Shakespeare Martineau.