New government guidance warns that universities may be in breach of their legal obligations if they cancel events due to protests.
The report, produced by the government’s Equality and Human Rights Commission, states: “[Universities] have a legal duty to protect freedom of expression for their members, students and employees and for visiting speakers.”
Universities that cancel speakers due to planned protests, on the grounds of security concerns, could be found in breach of the law if they cannot later show that they took all practicable steps to increase security.
The report also clarifies the legal limits of universities’ free speech duty, stating: “Freedom of expression can be limited by law if necessary, for example, to prevent crime, for national security or public safety, or to prevent unlawful discrimination and harassment.”
These exceptions are strictly qualified, applying only to speech likely to constitute a civil or criminal offence. Criminal speech includes incitement to violence, incitement of racial, sexual or religious hatred.
Speech may be exempted from protection if it constitutes harassment or discrimination. This includes speech that “has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”
However, the guidance clarifies that such considerations must be weighed against academic freedom: “Students’ learning experience may include exposure to course material, discussions or speaker’s views that they find offensive or unacceptable, and this is unlikely to be considered harassment under the Equality Act 2010.
“Also, if the subject matter of a talk is clear from material promoting an event, then people who attend are unlikely to succeed in a claim for harassment arising from views expressed by the speaker.”
The new guidance also clarifies the duties that student unions (SUs) have towards free speech. Unlike universities, most SUs are not public bodies and therefore do not have any direct duty to protect free speech under British or EU law.
However, universities may be indirectly accountable for the actions of their SU, and in particular are expected to ensure that SU premises are not denied to any speaker because of their views.
The report follows a 2017 inquiry, prompted by media reports, into free speech on university campuses.
The inquiry found that “while restriction of freedom of expression was not a widespread issue, there were concerns around increased bureaucracy, and potential self-censorship from students on campus as a result of the Prevent duty guidance.”
The new guidelines focus heavily on the issues of ‘no-platforming’ and ‘safe spaces’, with just two pages of the 54-page report devoted to potential conflicts between Prevent duties and free speech.
NUS Vice President Higher Education Amatey Doku said: “The Joint Committee on Human Rights in Parliament found that there was no widespread problem with freedom of expression at universities, and issues such as regulatory complexity or bureaucracy and reported self-censorship arising from the Prevent Duty were as much of a concern as the small minority of cases repeatedly cited in the media.
“Students’ unions are required to ensure freedom of expression is upheld within the law: they are adept at doing so and support many thousands of events each year.
“However, as the guidance rightly notes, the right to freedom of expression is not absolute and students’ unions and universities must balance that right with other legal duties. We were pleased to input into the drafting process in order to help identify where confusion can arise and to dispel some of the common myths around students’ union activity.
“We hope that this guidance is read not only by universities and students’ unions but by anyone looking to understand or comment on freedom of expression in higher education – so that the future debate is informed and balanced, and ceases to be characterised by both misconception and exaggeration.”
President of the Oxford Union Daniel Wilkinson said: “The Oxford Union continues to affirm our commitment to free speech. In a moment of polarisation and an ever-increasing echo chamber effect, it is crucial to make sure that we are having the difficult conversations and engaging with the widest possible range of viewpoints.
“We at the Oxford Union are proud to have a history of holding space for speakers and debates which both challenge that which we take for granted and highlight the most pressing issues of our age.
“Creating a home for these discussions is the work we hold dear; it is our responsibility both as students and as citizens.”
Oxford SU VP Welfare and Equal Opportunity Ellie Macdonald told Cherwell: “Oxford SU is happy to see guidance that offers support on helping the safety of students on campus as well as promoting free speech.
“The guidelines encourages students to have their views challenged and scrutinised which is widely positive however we must not forget that a clear line that exists between rigorous academic debate and discrimination.
“Oxford SU would like to see clearer articulation of this in University policies moving forward.”
Sir Michael Barber, chair of the Office for Students, said: “I welcome this important and timely guidance. Freedom of speech is one of our most cherished values, and our higher education system should be at the forefront of its promotion and protection.
“A key part of a quality higher education experience should be that students confront and debate opinions and ways of thinking which may be different to their own.
“This guidance ensures that universities and student unions are clear on their responsibilities, allowing them to ensure that our higher education system remains a place where passionate but civil debate thrives.”
Alistair Jarvis, Chief Executive of Universities UK, said: “Although there is little evidence of a systematic problem of free speech in universities, there is a legal duty on the higher education sector to secure free speech within the law and it is important that universities continually review their approaches.
“This new guidance provides a useful tool that will help universities balance the numerous requirements placed upon them, including student safeguarding responsibilities, and supports their significant efforts to uphold freedom of speech.”
The university have been contacted for comment.