The HEA: A cure looking for an illness
The Higher Education (Freedom of Speech) Act 2023 (HEA) is a response to a genuine problem. The treatment of Professor Kathleen Stock at the University of Sussex, harried from her post by a student campaign that substituted volume of feeling for quality of argument, illustrated with uncomfortable clarity that some universities had ceased to be places where ideas could be tested. (See the Hight Court’s judgement regarding the fine imposed by the Office for Students’ fine against the University of Sussex: The University of Sussex v The Office for Students EWHC 984 (Admin) )
The Act’s aims are laudable. However, the problems that it aims to treat are arguably created further down the educational line, in the secondary school classroom. The regulatory environment in secondary schools, as this article will demonstrate, potentially suppresses the pedagogical practices that cultivate high-level critical thinking on difficult or culturally sensitive topics. The HEA addresses a symptom whilst leaving the cause untreated.
This article examines several relevant areas: Firstly, the low-level concern reporting process (LLC) which could have a potentially chilling effect on academic freedom of speech. Secondly, how political neutrality may interact with LLC guidance. Thirdly, the lack of professional status attributed to secondary school teachers which fails to protect their academic freedom of speech. Lastly, it examines whether this challenge to freedom of expression is legally sound under Article 10 of the ECHR.
The Low-Level Concern Guidance
The LLC guidance was introduced into the Department of Education’s statutory guidance “Keeping Children Safe in Education (KCSiE)” in 2021, in response to serious case reviews involving the sexual abuse of children by adult perpetrators in schools. Its original analytical focus was squarely on relational and physical conduct: being over-friendly with children, taking photographs on a personal mobile phone, seeking one-to-one contact in unobserved areas. These are clear, serious, and paradigmatically appropriate concerns for a safeguarding framework. Nothing in the original context suggests a mechanism that could limit a teacher’s pedagogical choices. However, through the operational logic of the definition, it could produce this limitation.
But the guidance has moved on. A ‘low-level concern’ is now defined in paragraph 430 of the 2025 edition of KCSiE as:
any concern, no matter how small, and even if no more than causing a sense of unease or a nagging doubt.
Three features of this definition warrant attention.
Firstly, the threshold is vanishingly low and subjective: the nagging doubt of the observer, not any objective standard of conduct, determines whether a record is created. Secondly, the recording obligation is mandatory, requires that concerns be recorded in writing, and recommends retention until the individual leaves their place of employment. Lastly, this process operates without the procedural safeguards ordinarily associated with formal disciplinary mechanisms. A record may be created, retained, and exist without the knowledge of the teacher concerned.
The above features establish a structure in which the trigger for a formal recording is detached from a stable, externally verifiable standard. The teacher is required to regulate their conduct not by reference to a rule capable of prospective guidance, but by guessing an anticipated reaction by various parties. This gains greater significance when analysing the evidential logic of the framework.
Individual concerns, each insufficient in isolation to create concern, may acquire significance through accumulation. This has logical consequences. Anthony Flew argued, “We have here to insist upon a sometimes tricky distinction: between, on the one hand, the valid principle of the accumulation of evidence, where every item has at least some weight in its own right; and, on the other hand, the Ten-leaky-buckets-Tactic, applied to arguments none of which hold water at all.” In other words, a series of subjective impressions does not, without additional clear evidence, constitute evidence of misconduct. To treat it as such is not simply a procedural weakness but a logical error. This reveals a structural weakness in the LLC guidance when the guidance is extended beyond its intended domain.
The purpose of LLCs in the official guidance is to create a ‘culture of openness, trust and transparency’ in which expected behaviour is ‘lived, monitored and reinforced constantly by all staff.’ Using the philosophical lens of Gilbert Ryle and his category error theory (the mistake of describing something using vocabulary that belongs to an entirely different logical category), the vocabulary of openness, trust and transparency belong to the lexicon of collegial professional culture. The mechanism being described: constant monitoring, mandatory recording, permanent retention, triggered by subjective unease, belongs to the lexicon of institutional surveillance. The mismatch is not semantic carelessness. It performs the function of making a surveillance architecture sound like an aspiration to collegiality. It is not.
Properly applied, the LLC guidance can identify patterns of conduct that, while individually minor, may indicate a developing safeguarding risk and support a teacher who may not have understood their behaviour was potentially a concern. This could have the dual function of saving a career as well as protecting children. In that context, a low threshold is both rational and necessary. The difficulty arises when a mechanism designed for the early detection of grooming-type behaviour is extended, without modification, to the domain of classroom pedagogy.
The structure outlined above may produce the following damaging results to freedom of expression in the classroom:
- Silencing of academic freedom of expression: A pedagogical decision to teach difficult material, may produce a recorded LLC which provides an incentive not to tackle difficult topic material. This forecloses discussion, limits critical thinking and could downgrade academic resilience in those going on to university.
- The culture of trust that allows professionals to apply their craft is damaged. Colleagues are no longer fellow professionals, but potential informants who can report and create records, without having to measure their objection against a strict criterion but only a subjective reaction.
- Guidance may produce an incentive to generate LLCs for the records: OFSTED’s 2025 framework stipulates a binary met/not met judgement for safeguarding. A failure to convince the inspectorate that all safeguarding checks are complete will lead to a failed inspection. This could lead to over-compliance and result in LLCs being recorded to demonstrate that safeguarding guidance is being properly followed.
Awareness that the current framework could result in these three issues arising is critical. However, there exists another compounding factor in the risk of restrained academic freedom of expression: the guidance on political neutrality.
Political Neutrality combined with LLCswo difficulties bear directly on the present argument. Neither section defines ‘political’ or ‘political issues.’ In the absence of authoritative guidance, school leadership has treated an expanding range of topics as falling within political neutrality, including topics where the weight of professional, scientific, or empirical consensus would treat them as matters of established fact rather than partisan opinion. The teacher who has a display generated by students that suggests NHS staff should be paid more, rather than thanking the NHS, would be seen as politically biased. The statutory framework, applied in practice, may characterise that judgment as a failure to present ‘both sides.’ The effect is to substitute professional expertise with managed neutrality to transform the teacher into a bureaucratic mediator presenting both sides of questions to which, in many cases, one side is not the epistemic equivalent of the other. A discussion within a classroom that may apply to policy change could trigger an LLC as a result, leading some teachers to avoid these discussions altogether. This arguably produces a chilling effect on academic freedom of speech and the environment that supports it. When combined with the issues already presented: the low threshold that generates an LLC, damage to the culture of trust, pressure on school leadership to produce evidence of LLC recording, and the threatened professional status of the secondary school teacher, the risk to the academic freedom of expression in the secondary school environment increases.
The LLC guidance does not operate in isolation. It is compounded by a second regulatory mechanism that has received less attention than it deserves: the political neutrality duty imposed by sections 406 and 407 of the Education Act 1996, which require schools to secure a ‘balanced presentation of opposing views’ where political issues are raised.
The Secondary School Teacher as a Professional
A further compounding factor is the erosion of the secondary school teacher’s professional status. A professional, in the relevant sense, is characterised by three features: First, specialist expertise acquired through formal training and recognised by a credentialling process. Second, the exercise of autonomous judgment in applying that expertise to cases without substitution of the professional’s assessment by the subjective reaction of those they serve. Lastly, an accountability to a peer-based professional standard set and administered by those with equivalent expertise rather than to the discomfort of any lay observer present.
Most secondary school teachers satisfy the first criterion without difficulty: a degree and Qualified Teacher Status (QTS) are mandatory prerequisites for practice. The Teachers’ Standards explicitly require teachers to satisfy the second: they must ‘demonstrate a critical understanding of developments in the subject’ and ‘encourage pupils to take a responsible and conscientious attitude to their own work and study.’ Autonomous pedagogical judgment is not merely permitted; it is required. It is the third criterion, accountability to a peer-based professional standard, that the regulatory architecture potentially withholds.
The contrast with comparable professions is instructive, and it is not flattering. A doctor who prescribes a treatment that a patient finds distressing does not generate a formal conduct record based on the patient’s discomfort. A record is only produced when the threshold of risk to patient safety is exceeded. A barrister whose argument the opposing party finds uncomfortable does not have that argument logged as a concern with the Bar Standards Board; the barrister’s obligation runs to the client and to the court, not to the feelings of those adversely affected by the submission.
However, the secondary school teacher who does the intellectual equivalent, who challenges a received position, models rigorous engagement with a difficult question, or refuses the false comfort of false balance may, by contrast, be in a grey area using the LLC guidance. This asymmetry is not an accident of drafting. It is the product of a policy choice — the choice to construct the regulatory framework for secondary teachers on the model of state supervision rather than professional governance. That choice has consequences under Article 10 of the European Convention on Human Rights, and arguably under Article 1 protocol 2 (the right to education).
The HEA’s protection of academic freedom of speech is granted because lecturers work in a distinct and separate educational setting from the secondary school. Secondary school teachers work with children who cannot choose to leave, and who are at a formative stage in their development. This is not a trivial point, and it justifies additional constraint beyond what one would impose on a university lecturer in a setting comprised of adults. This point is sound and reasonable. It does not, however, justify excessive constraint imposed upon secondary school teachers. There is a considerable distance between ‘some additional constraint proportionate to the audience’ and ‘a recording obligation triggered by the nagging doubt of any observer.’ The captive audience point establishes that the constraint may be higher than it would be elsewhere. It does not establish that no principled limit on that constraint is required.
Protection under Article 10?
Given the above the analysis must turn to whether the application of the LLC framework to pedagogical speech engages Article 10 of the European Convention on Human Rights subject to such restrictions as are ‘prescribed by law,’ as to pursue a legitimate aim. The question is not whether safeguarding may justify some restrictions on teachers’ expression. It plainly may. The question is whether the structure and operation of the LLC framework, when applied to pedagogical speech, satisfies those requirements.
“Prescribed by law”
There is little difficulty in establishing that classroom teaching falls within the scope of Article 10. The Strasbourg Court has consistently recognised that freedom of expression in the course of professional duties, including teaching and academic work, attracts protection. While the Court’s academic freedom jurisprudence has developed primarily in the university context, it is true that the underlying principle of communication of ideas in an educational setting is a form of protected expression and applies to secondary education (subject to the additional considerations arising from the age and vulnerability of the audience).
A teacher presenting a scientifically grounded view on climate change and suggesting a solution, and a teacher using Socratic questioning to test the coherence of a student’s moral position are paradigmatic instances of pedagogical expression. If the application of the LLC framework renders such conduct liable to formal recording, Article 10 is engaged.
For an interference with Article 10 to be justified, it must be “prescribed by law.” This requires that the measure be formulated with sufficient precision to enable those subject to it to regulate their conduct in advance, and to foresee, to a reasonable degree, the consequences of their actions. As applied to pedagogical speech, the LLC framework gives rise to difficulty. The subjective criterion for producing an LLC record is a “sense of unease or a nagging doubt”. This lacks a stable, externally verifiable standard against which to be measured. A teacher seeking to determine whether a particular form of classroom engagement will generate a record is not guided by a rule, but by the anticipated reaction of an unspecified observer. As Joseph Raz has argued, the foundational requirement of the rule of law is that “the law must be capable of guiding the behaviour of its subjects” and “must be such that they can find out what it is and act on it.” A standard that is “ambiguous, vague, obscure, or imprecise,” he observes, “is likely to mislead or confuse at least some of those who desire to be guided by it.” The LLC threshold, triggered by the subjective unease of an unspecified observer, satisfies none of these requirements when applied to pedagogical speech. The framework therefore provides limited assistance in enabling prospective self-regulation of conduct. This does not mean that the framework is incapable of satisfying the requirement. In its original domain of relational and behavioural indicators of safeguarding risk, there are stronger criteria providing practical guidance on safeguarding violations. The difficulty arises from extending the same threshold, without modification, to a qualitatively different category of conduct: the expression of professional judgment in the classroom.
Chilling Effect
In Kula v Turkey (2018), the Court held that ‘however minimal the sanction’ placed on freedom of speech, it was liable to have a chilling effect on Article 10 rights. The Grand Chamber in Big Brother Watch v United Kingdom went further, finding that a surveillance mechanism was an interference with Article 10 rights, irrespective of whether those rights were exercised. The application to the LLC framework is compelling. A rational teacher who knows that honest professional engagement with contested material may generate a permanent record will anticipate that risk. The anticipation has a predictable effect: it incentivises retreat to the safest possible presentation of contested material and may disincentivise the kind of rigorous intellectual challenge that good teaching requires.
The principle established in Kula that a minimal formal sanction can have a chilling effect on speech is reinforced by s.6 of the Human Rights Act 1998, under which all public authorities must act compatibly with convention rights: even informal measures capable of deterring free expression must be accompanied by genuine consideration of Article 10. However, despite KCSiE identifying certain convention rights to which schools must have regard under the HRA, it does not expressly refer to Article 10. The absence of any prompt to consider the impact of the framework on freedom of expression increases the risk that its application to classroom speech will proceed without the balancing exercise that proportionality requires.
Considering that secondary school teachers work with minors in a context in which attendance is compulsory and pastoral responsibilities are significant, the state is entitled to a broader margin of control than would be permissible in higher education. Measures that would be disproportionate in a university setting may be justified in a secondary school.
However, that consideration does not resolve the present issue. The question is not whether some additional constraint is justified, but whether the form it takes here is proportionate. A framework that permits the formal recording of pedagogical speech based on subjective unease, without a requirement to consider the expressive interests at stake, risks going further than is necessary to achieve its legitimate aim. More targeted mechanisms that distinguish between safeguarding-related conduct and the good-faith expression of professional judgment would be capable of achieving the same objective with a lesser impact on Article 10 rights.
Taken together, these considerations suggest that the application of the LLC framework to pedagogical expression gives rise to a substantial question as to its compatibility with Article 10. The framework pursues a legitimate and important aim, but its extension beyond its original domain, without adjustment to threshold or structure, risks imposing a form of interference that is insufficiently precise and insufficiently tailored to the conduct it seeks to regulate.
Proportionality
The proportionality analysis requires, among other things, that a measure be rationally connected to the legitimate objective it pursues and go no further than necessary to achieve it. The legitimate aim of the LLC framework is beyond challenge: the early identification of adults whose conduct may present a risk to children is fully justified. The question is whether applying the framework to classroom pedagogical speech is rationally connected to that aim. The paradigm case the framework was designed to capture — predatory relational conduct, unsupervised physical access, grooming behaviour — is categorically different from the expression of a professional view on a contested question of social ethics in a lesson. Applying the same recording obligation to both is not a proportionate extension of a legitimate mechanism. It is a category error with legal consequences.
The cumulative effect of these overlapping failures has a precise legal consequence. A school that applies the LLC framework to a teacher’s classroom expression on a contested pedagogical question is acting incompatibly with that teacher’s Article 10 rights. The school’s KCSiE obligations must be read and applied compatibly with its Convention obligations. Where the two pull in different directions, the higher legal authority of the Convention takes precedence.
However, it would be wrong to suggest that classroom speech can never fall within a legitimate safeguarding concern. A teacher who uses a lesson on ethics to express views that normalise harm to a protected group is not, on the analysis developed in this article, entitled to the protection it describes. The professional speech protection argued for here is not a licence for any expression however harmful. It is a demand that the threshold for recording be calibrated to the conduct the framework was designed to address, and not extended, through the operational logic of a subjective trigger, to conduct it was never designed to reach. The solution is not the removal of the LLC framework. It is its reform: a higher, more precise, and contextually calibrated threshold that preserves the legitimate safeguarding function whilst removing the potentially chilling effect on professional pedagogy.
Epistemic Resilience and Reform
The argument’s implications are sharpest at Sixth Form level. Sixth Form students are preparing for university, professional qualifications, and full civic participation. The epistemic capacity the Higher Education Act seeks to protect at the university stage: to interact and engage with views one finds mistaken or offensive, to evaluate arguments rather than merely to experience them, to disagree well, must be formed somewhere. It is not acquired by osmosis. It is the product of sustained exposure to honest intellectual challenge from people who are expert enough to provide it and trusted enough to be believed.
The treatment of Professor Stock at Sussex was widely and rightly deplored. But the students who drove her from her post had not, in all likelihood, emerged from secondary school as fully formed intellectual authoritarians. They had emerged as people who had not been adequately taught that encountering a view they found distressing was a beginning, not an end.
The capacity to engage with disagreement, tolerate intellectual discomfort, and form and defend an argument is cultivated through sustained exposure to honest professional intellectual challenge during secondary education. The LLC framework, through its chilling effect, suppresses the pedagogical practices that cultivate it. Students who arrive at university without epistemic resilience are ill-equipped for the rigours of higher education, and for the demands of civic life in a liberal democracy. The Higher Education Act cannot remedy a deficit it neither caused nor addresses. A genuinely adequate response must include reviewing the secondary school regulatory environment.
The regulatory errors this article has described are not small in their intent: they derive, in the main, from genuine concern for the welfare of children. But their cumulative effect is significant. They have constructed around the secondary school teacher a regulatory environment that rewards self-censorship, reduces professional status, and produces in students precisely the epistemic fragility that the HEA was designed, too late, to address. Reform does not require the abolition of the LLC framework. Safeguarding is a serious and essential function of schools, and the framework serves a legitimate purpose within its proper domain. What it requires is a principled distinction, currently absent from both the framework and its official guidance, between the relational and physical conduct the framework was designed to capture, and the communicative and pedagogical conduct of the classroom with the inclusion of Article 10 within its guidance.
A reformed framework would establish an objective threshold for the recording of a concern that can give the teacher reasonable indication of which conduct will trigger it. It would distinguish explicitly between a concern about grooming-type conduct where a low threshold is appropriate and a concern about classroom expression, where the threshold must be calibrated to the professional nature of the conduct and the Article 10 interests at stake. It would require schools, in applying the framework to classroom expression, to have regard to their obligations under section 6 of the Human Rights Act 1998.
The secondary school teacher, especially in Sixth Form, is a skilled professional and exists as a bridge between that school, university and the thinking skills that support the liberal democracy in which we live. I hope these reflections generate some thought about the risks to secondary school teachers’ freedom of expression and how those restrictions could have unwanted results further up the educational and cultural river.
Dan Pollen is a philosophy teacher with research interests in ethics and jurisprudence, and their interaction with culture and society.
