Is new government guidance required to secure campus free speech?

Out-Law Analysis | 11 May 2018 | 3:42 pm | 4 min. read

ANALYSIS: On 3 May 2018, universities minister Sam Gimyah announced a "free speech summit" with representatives from the higher education sector, at which he would "demand" that the sector take further action to protect lawful free speech and work with ministers to publish new guidance that would provide clarity about the rules to both students and universities "for the first time".

Gimyah has also described the present legal landscape as "murky" and involving a "dizzying variety of legal rules" which can be exploited to stifle free speech.

There is no dispute that universities and student unions have difficult decisions to make when balancing competing legal rights and obligations in this area, but there is also no dispute that the present statutory framework has consistently placed them under a proactive and positive obligation to secure lawful free speech.

Despite well publicised concerns about the rise of 'safe spaces' and the 'no platforming' of controversial speakers, talk of a free speech "crisis" on campuses is not borne out by most of the data. This is also not the "first time" that comprehensive, university specific guidance has been launched, as Universities UK (UUK) produced its current guidance back in February 2011.

Gimyah's announcement is still significant, as it will be the first intervention by ministers since the legal duty on higher education institutions to secure freedom of speech was enshrined by section 43 of the 1986 Education (no. 2) Act (1986 Act). What both students and universities need now is some assurance from the government that this further guidance will be a positive contribution which strengthens, rather than further complicates, the day to day management of free speech in the sector.

What does the research say?

Spiked, an online magazine, has suggested that almost 54% of UK universities actively censor free speech, while another 40% stifle free speech through excessive regulation. However, this data does not appear to be borne out by other research.

The report into free speech produced by the House of Commons and House of Lords Joint Committee on Human Rights (JCHR) found a very different picture. The JCHR, which reported on 27 March 2018, did not find that there was a "chronic problem" in the sector, or any "wholesale censorship of debate in universities which media coverage has suggested".

Rather, the JCHR found that freedom of speech was not "overly inhibited" by universities and was "valued by students". The committee believed that often "difficulties can be caused by outsiders rather than students" and that it was wrong to categorise some events as being censored when students had been entitled to manifest their rights to express disagreement by way of peaceful protest or refusing to share a platform with a particular speaker.

In addition, UUK chief executive Alistair Jarvis has stated that of the "tens of thousands" of speaking events hosted by universities across the country every year, the majority "pass without incident". While "a small number of flash points occasionally occur on contentious and controversial issues", universities "do all they can to protect free speech so events can continue". His comments, and the findings of the JCHR, suggest that the reasons for ministerial intervention may be overstated.

The legal landscape

The duty on higher education institutions to secure freedom of speech has been in place for over 30 years. The requirements of section 43 are very clear. Governing bodies of institutions must take whatever steps are "reasonably practicable" to ensure that freedom of speech within the law is secured.

This duty is positive and proactive. The obligation is not simply to avoid taking any steps that would limit or curtail free speech on campus, but to activity take any action that is "reasonably practicable" to secure that right for its staff, its students and even visiting speakers.

Section 43 does not directly bind student unions, as they are now recognised as separate legal entities and regulated by the Charity Commission. However, most universities ensure that their student unions are bound to observe their policies on free speech by way of memoranda of understanding.

The obligations under section 43 can be, and are, limited by law as necessary in a democratic society. However, those limitations must be proportionate, and there is a presumption in favour of free speech unless an event would give rise to a breach of the law.

Therefore, in both the university and student union context, there are only likely to be grounds for cancelling an event when there is a legitimate concern that proceeding would result in criminal offences being committed – for example, under the public order or counter terrorism legislation. Even the government's anti-terrorism 'Prevent' strategy guidance acknowledges that universities and student unions should be mindful of their obligations under section 43 and only cancel events if the risk of students being drawn into terrorism cannot be fully mitigated by other measures.

Is new guidance needed?

Gimyah's main announcement at the summit was the government's intention to publish guidance on the rules of free speech in the higher education sector; presumably through the new regulator for universities, the Office for Students.

Perhaps a good starting point for ministers would be to work with UUK in bringing its 2011 'Freedom of Speech on Campus' guidance document up to date, in particular to reflect the Prevent strategy. This would be better than risk further reinventing the wheel, or putting in place new guidance which lacks a sector "voice".

In drafting any new guidance ministers should also pay careful attention to the conclusions of the JCHR in regards to the Charity Commission's 2013 guidance on hosting events with controversial speakers, which applies to student unions. The JCHR identifies that this guidance, and its implementation, is too generic, and does not give sufficient weight or recognition to the specific context of universities and their obligations under section 43 of the 1986 Act and thereby unintentionally inhibits, rather than fosters, lawful free speech.

Julian Sladdin is a university dispute resolution expert at Pinsent Masons, the law firm behind Out-Law.com.