(No) Freedom of Speech at Universities?
Universities are meant to be places where freedom of speech flourishes. The issue of free speech in universities in the UK has been recently examined by the Joint Committee on Human Rights (the Committee), a parliamentary committee consisting of representatives of both Houses of the Parliament. The Committee considered the challenges encountered by students, lecturers and others when exercising their right to freedom of speech at universities.
The right to freedom of speech at universities is guaranteed under Education (No. 2) Act 1986. Furthermore, freedom of speech at universities is also protected under Article 10 of the European Convention on Human Rights (ECHR) (and in conjunction with other rights, for example, Article 11 of the ECHR, the right to freedom of assembly and association). As confirmed by the Committee, the right to freedom of speech includes ‘the right to say things which, though lawful, others may find offensive. Unless it is unlawful, speech should normally be allowed.’
The right to freedom of speech is not absolute and is subject to some limitations. Under the ECHR, those limitations include ‘such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ However, as explored in the course of the inquiry, the limitations identified by the Committee in universities do not necessarily fall within these prescribed limitations.
The Committee identified the challenges to the right to freedom of speech at universities. Many of the challenges arose from restrictive or burdensome policies, such as: ‘unnecessary bureaucracy imposed on those organising events; fear and confusion over what the Prevent duty entails; regulatory complexity; unduly complicated and cautious guidance from the Charity Commission; concern by student unions not to infringe what they perceive to be restrictions.’
However, the Committee also indicated that the right to freedom of speech at universities is limited by ‘intolerant attitudes, often incorrectly using the banner of ‘no platforming’ and ‘safe-space’ policies; incidents of unacceptable intimidatory behaviour by protestors intent on preventing free speech and debate.’ As found by the Committee, some protests at universities aim to prevent a speaker from appearing or expressing their views or to close down the events entirely. This should not be allowed at universities where conflicting opinion or ideas supposed to be discussed and challenged rather than silenced. The Committee concluded that ‘it is unacceptable for protestors to deliberately conceal their identities, break in with clear intention to intimidate those exercising their rights to attend meetings or to seek to stop events.’
The Committee identified some good practices that could help to uphold the right to freedom of speech at universities, including some processes for having external speakers as long as they are reasonable and do not involve undue bureaucracy or unreasonable conditions attached, codes of practice as long as they facilitate freedom of speech and do not unduly restrict it. The Committee criticised, for example, any requirement to provide the speech in advance and indicated that a confirmation from the speaker that their speech will be lawful should suffice.
The Committee concluded that there was no evidence of ‘wholesale censorship of debate in universities’ as suggested by media. Nonetheless, the reported incidents of restrictions may have a chilling effect on the enjoyment of the right to freedom of speech at universities in general.
Another challenge, which also affects the public more broadly, is the Prevent duty, which requires certain authorities, including local authorities, the health sector, prisons and probation and the police, take steps to prevent people being drawn into terrorism. The Committee referred to the recent case of Salman Butt v Secretary of State for the Home Department and explained how the duty should be understood. The judgment narrowed down the scope of the Prevent duty to terrorism and violent extremism that may result in people being drawn to terrorism (but not non-violent extremism as suggested in the Counter-Extremism Strategy 2015). The government has not yet implemented this judgment, and continues to apply the very broad definition of extremism as ‘the vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs. We also regard calls for the death of members of our armed forces as extremist.’ The Committee restated its recommendations from another inquiry, focusing on counter-extremism strategy, to review the Prevent duty and to ensure that it does not infringe rights excessively.
The inquiry conducted by the Committee was much needed to explore the challenges to the right to freedom of speech at universities. Those challenges, while not amounting to ‘wholesale censorship’, must be met to ensure that universities continue to be fit for their purpose and equip generations of young people with skills to engage in debates, challenge opinion or ideas they do not agree with.