There is a reason why it is a legal maxim that hard cases make bad law. Bad law sets dangerous precedents, however worthy its initial aims. To be clear, this is not a blog about whether or not universities should do all they can to tackle antisemitism on campus; of course they should. Nor is it a blog about whether the International Holocaust Remembrance Alliance definition of antisemitism should be adopted by universities. We have advised many universities where there is an absolute commitment to tackling antisemitism, but where adoption of this particular definition has had to be carefully considered against other duties such as academic freedom and freedom of speech.
This is instead a blog about whether the Secretary of State has or should have the power to force universities to adopt such a definition.
There is no legal obligation on universities to adopt the definition. The Secretary of State’s recent letter to Vice Chancellors exhorting them to adopt the definition makes no claim to the contrary; instead it explicitly asserts that adopting the definition is in the view of the Secretary of State morally the right thing to do. He goes on, however, to explain that he is asking officials to explore options for enforcing this moral obligation, including “directing” the OfS to impose a registration condition or suspending funding streams. There are obvious reasons why alarm bells should ring when politicians seek to enforce what they see as moral obligations through indirect legal routes such as this.
Does the Secretary of State have the power to direct the OfS to impose a registration condition?
Not as such, not directly. Under the Higher Education and Research Act, in exercising its functions, the OfS must have regard to guidance or directions issued by the Secretary of State. In giving such guidance, the Secretary of State must have regard to the need to protect institutional autonomy, defined as including academic freedom.
The formulation “have regard to” is a legally permissive one, in that it leaves it to the relevant decision-maker to decide what weight to attach to the relevant factor, when balanced against other relevant factors. So the Secretary of State can decide what weight to attach to institutional autonomy when deciding whether to guide the OfS towards a registration condition on adopting the definition. But, equally, the OfS has the discretion not to follow the Secretary of State’s guidance.
In both cases, the law requires the relevant power to be exercised for its proper purpose and the decision-maker to be able to explain their reasons for, respectively, issuing the guidance or imposing a registration condition, and the OfS has to consider consulting on the need for a condition. However, provided the way that the condition is introduced is procedurally correct, the courts will generally only intervene to strike out a condition if it is “irrational” to impose it. This is a very high legal threshold to cross and would require a finding, effectively, that no reasonable regulator, properly directing itself on the information available to it could possibly have imposed such a condition.
The aim of the guidance
The decisions to issue the guidance and to impose the condition would need therefore to address what legitimate aim it was seeking to address - in this case, the need to ensure that Jewish students were able to access and thrive in higher education would obviously be a legitimate aim. The decision would also need to address the various well-publicised challenges to the definition, for example that it is ambiguous and unworkable, or that it conflicts with other duties the Government is simultaneously promoting such as academic freedom and freedom of speech. It would also have to address why a requirement to adopt the definition, rather than, say, a broader requirement to take reasonable steps to address antisemitism on campus, is a necessary and proportionate step. The OfS might itself face challenges for breach of its public sector equality duty if it takes action to introduce a condition in relation to antisemitism, but not in relation to other forms of discrimination. Nevertheless, if the Secretary of State and the OfS address these issues in a reasonable way, a court is likely to defer to their judgment.
What about restricting access to funding streams?
This is straight out of Trump’s playbook, who last year signed an executive order to require federal agencies to tie access to funding to a commitment by universities to ensuring freedom of speech. In the UK, similar principles to those set out above apply to any restrictions on direct funding. There may be an added complication for the regulator in that it would have to show why taking enforcement action for breach of any registration condition, including the sanction of a fine, was not sufficient,
Restricting access to student loan funding would most likely require an ability to restrict what individual providers could charge by way of fees, perhaps using the model developed under the abortive student number controls that were introduced and then revoked earlier this year.
So, there are hurdles to overcome in introducing a registration condition or restricting access to funding, but they are not insurmountable. In the past, the fact that there are so many question marks over the legal appropriateness of taking a step, combined with appropriate deference for conventions such as the need for universities and arms-length regulatory bodies to be independent of the state, might have been sufficient to deter political intervention.
However, once those conventions are regarded as dispensable where political or moral expediency requires it, resisting the steps threatened by the Secretary of State requires a preparedness to take legal action far greater than the sector has to date shown willingness to do, and is, in any event, an especially unattractive prospect given the subject-matter in this case. Hence, in the face of deliberate and determined political interference, the safeguards of institutional autonomy and regulatory independence now appear fragile indeed. Hard cases do indeed make bad law.