Complaint against colleges highlights challenges over competing protected beliefs

Julian Sladdin and Stephanie Connelly of Pinsent Masons commented after the National Secular Society (NSS) raised a complaint about 12 theological colleges, which it said “require study and teaching to be carried out in accordance with religious doctrine”.

According to the NSS, the requirements the colleges impose breach conditions of registration that higher education institutions must meet in England, specifically around freedom of expression and academic freedom. The NSS has threatened to lodge judicial review proceedings against the Office for Students (OfS), the sector regulator, over what it sees as its systemic failure to investigate the alleged rule breaches while allowing the colleges to access public funding.

In addition to the tension which exists between competing protections for free expression and academic freedoms in the higher education sector and the protections afforded to faith bodies which provide education in accordance with their religious doctrines, the potential judicial review challenge could be timed out under limitation rules, according to Sladdin and Connelly. They said universities can learn broader compliance lessons from the publicity the NSS complaint has generated.

Connelly said: “NSS claim that the underlying complaints about the registration and funding of the colleges were first raised several years ago. Judicial review claims must be brought promptly and, in any event, within three months of the decision under challenge, making delay a potential obstacle unless exceptional reasons can be given for delaying the application for several years after objections were made to OfS’ decisions to continue registration of the colleges.”

Sladdin added: “The challenge will also be difficult as it involves the courts balancing the competing legal safeguards currently in place for protected beliefs on faith grounds and academic freedoms and free speech in higher education.”

“As matters currently stand, there are limited protections under the Equality Act for theological colleges to pursue faith‑based institutional aims, and put in place internal regulations which reflect their belief structures of the religious foundation, where the focus of the college is predominantly about delivering theological, vocational courses to members of the foundation, without breaching academic freedom or free speech duties. The position is more finely balanced where these providers also offer non‑confessional degrees, where regulators are likely to focus on whether institutional ethos and reflecting the beliefs of those who enrol is shaping context or improperly constraining academic content and debate due to the narrow focus of protections afforded by the religious exemptions under the Act,” he said.