Beyond the specific issue of speech which may (or may not) be protected under Article 10 read in its entirety lies a wider problem, and that is that the Higher Education (Freedom of Speech) Act, particularly as interpreted and enforced by the OfS, may operate as a kind of reverse Section 28. This was a highly controversial clause in the Local Government Act 1988 which prohibited local authorities and state schools from “promoting homosexuality” or teaching the acceptability of same-sex relationships as a “pretended family relationship”.

No charges were ever brought under it, as the whole idea of “promotion” was a chimera manufactured by right-wing newspapers and politicians, but there is ample evidence that schools and local authorities self-censored when it came to LGBTQ+ matters for fear of falling foul of this thoroughly ill-considered law.

Itching to pick fights

Here, however, there is the distinct possibility that universities and student unions (which are also subject to the Act) could feel wary of refusing offers of guest lectures from visiting speakers who wished to broach certain contentious topics. This is particularly concerning given the number of culture warriors and anti-“woke” activists who are simply itching to pick fights with universities over being allegedly “cancelled” and who regard the Act as a legal means of ensuring that their views are heard on campus whether they are welcome there or not.

Take, for example, the case of Bangor University’s Debating and Political Society which in February 26 was approached by Reform MP Sarah Pochin and campaigner Jack Anderton to host a Q&A with students. The society declined their kind offer on the grounds that it maintains “zero tolerance for any form of racism, transphobia, or homophobia displayed by the members of Reform UK. Their approach to the lives of others is antithetical to the values of welcoming and fair debate that our society has upheld for 177 years”. In return, Zia Yusuf, Reform UK’s ubiquitous and voluble head of policy, stated that “Bangor receives £30 million in state funding a year, much of which comes from Reform-voting taxpayers. I’m sure they won’t mind losing every penny of that state funding under a Reform government. After all, they wouldn’t want a racist’s money would they?”.

He was followed by Dan Thomas, the deputy leader of Reform in Wales, writing an article for the Telegraph in which he announced that “under my leadership, Reform UK will introduce legislation within the first 100 days of forming a government in Wales to put an end to the militant cancel culture and ‘no-platforming’ in Welsh universities”. The same newspaper also published an article under the entirely inaccurate headline “University Debating Society Bans Reform MP from Giving Talk” which contained  an equally ill-informed quote from James Orr, Cambridge associate professor of divinity and Nigel Farage’s senior adviser, to the effect that “in a crowded field, [the decision] is the worst breach of the Higher Education (Freedom of Speech) Act 2023 I have ever come across”. However, back in the real world it was left to David Kernohan on Wonkhe to point out the truth of the matter. Namely, that the Reform speakers were in no sense “banned” but simply not invited to speak. That most of s.3 of the Act, which deals with the duties of Students’ Unions, was not in force at the time. And finally, that the parts of the Act that Reform were claiming had been breached do not actually apply in Wales.

Academic freedom and excellence

What Reform staged over Bangor was nothing more than a cynical and opportunistic provocation designed to ignite yet another battle in the culture wars on which they and their media allies thrive. But it does provide the opportunity to make the point that whatever the Higher Education (Freedom of Speech) Act may say, no-one who is not employed by a university has the right to simply turn up there and address the students, and indeed the staff, unless explicitly invited to do so. Furthermore, as well as obeying the law, universities also have academic standards that they must maintain and uphold. Indeed, Chris Buttler KC, in acting for Sussex in its application for judicial review of the OfS’s actions, made this very point when discussing the stereotyping clause in the Policy Statement when he noted that:

What is prohibited are “stereotypical assumptions”, which means in effect over-simplified ideas about trans people. Such assumptions would not uphold high academic standards. The university is not seeking to restrict discussion of stereotypes, but rather the reliance on them, or attempts to reinforce such simplified ideas about trans people in the curriculum. A policy restricting teaching based on the intentional promotion of stereotypes is a proportionate means of advancing the university’s core function of promoting excellence in teaching and learning. (227)

A similar point was also made by Amia Srinivasan, professor of social and political theory at All Souls College, Oxford, on the occasion of Arif Ahmed being appointed to his role as “free speech tsar”, in an article which argues that the Higher Education (Freedom of Speech) Act essentially conflates freedom of expression and academic freedom. The latter, she argues, is the freedom “to exercise academic expertise in order to discriminate between good and bad ideas, valid and invalid arguments, sound and hare-brained methods”. Consequently it is perfectly permissible for “disciplinary gatekeepers to exclude cranks and shills from valuable communicative platforms in academic contexts, because effective teaching and research requires that communicative privileges be given to some and not others, based on people’s disciplinary competence”.

Inviting complainants to the OfS

All of the issues explored in this series of articles take on greater urgency in light of the Department for Education announcement on 20 April 2026 that the complaints system enshrined in the Act will come into force for the new academic year. (Not entirely unsurprisingly, little more has been heard of this since the High Court delivered its judgement in the Sussex application a few days later). The new system will allow academics, other university staff and external speakers to take their complaints directly to the OfS, which will “investigate claims and recommend that universities review decisions, pay compensation or alter their processes, helping to restore the integrity of universities as rigorous centres of intellectual debate”. Those institutions that are found to have failed to protect free speech could, from April 2027, face fines of £500,000 or 2% of their income. As the Department explains:

Currently, university staff can use providers’ internal complaints process but may then only have recourse to a costly judicial review or employment tribunal action, while the new complaints system will be free. This streamlined process will empower more people to raise concerns confidently, marking a significant step forward in protecting freedom of speech in higher education.

The president of Universities UK, Professor Malcolm Press, is quoted to the effect that: “Protecting free speech while preventing harassment, hate speech and radicalisation are complex tasks involving finely balanced decisions. It is important that the OfS discharges its new responsibilities fairly, transparently and proportionately”.

However, on the evidence of the OfS’s dealings with Sussex this might seem something of a vain hope. Furthermore, should it adopt a position on Article 10(2) which is consistent with Minasyan, or should it fail to do so and then find its judgment challenged on these grounds by a university against which it had taken action under the Higher Education (Freedom of Speech) Act, then there is a distinct danger that this could ignite exactly the kind of rows over the ECHR and ECtHR that I recently explored on this blog here and here and which have led to the controversial Chişinău Declaration, issued by the Council of Europe’s Committee of Ministers on 15 May.

Briefly, in the UK the row pertained to the objection from Lord Sumption, Policy Exchange, Jack Straw and others of a like mind that the ECHR had, as a result of the jurisprudence of the ECtHR, been transformed from a code of rights which are fundamental to civilised states into a “living instrument” which has invented new rights which were not envisaged by those who originally drafted the Convention, are highly controversial and unnecessarily intrude into member states’ domestic affairs. Straw took particular issue with section 2 of the HRA, which states that “a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights”. But according to Straw, this “did not require UK courts to ‘follow’ Strasbourg; had Parliament intended that, it would have said so. Yet in the 2000s, the UK Supreme Court decided that ‘take account’ effectively meant ‘mirror’ Strasbourg”. Consequently, Straw argued, “section 2 should be amended to state UK courts ‘may, or may not, take account of’ Strasbourg”.

With Reform and the Conservatives pledged to leave the ECHR, the government terrified of  being seen as “soft” on human rights and the FSU permanently poised to place its very considerable (if opaquely funded) resources behind any cases which it can employ to advance its absolutist conception of freedom of expression, the likelihood of the Department of Education and the OfS taking on the full implications of Minasyan looks about as likely as the UK winning the Eurovision Song Contest. However, as things stand, universities now face a stark choice:  follow the OfS Guidance and risk breaching Article 10 of the EHRC, or apply it in the manner that has been discussed in this series of articles, thereby risking regulatory action on the part of the OfS and a barrage of negative propaganda from the absolutist nexus.

Julian Petley is the Honorary and Emeritus Professor of Journalism, Brunel University London