Free speech in Universities

17 Feb 2021 By Azeem Suterwalla

Free speech in Universities, or the lack thereof, is in the spotlight. On 16 February 2021, it is was reported in the mainstream media that the government is to bring forward legislation that will enable academics, students or visiting students who are “no-platformed” to sue universities for compensation where they feel they have suffered because their right to free speech has been curtailed. Apparently, the proposal is one of a number which will be put forward by the Secretary of State for Education, in order to protect free speech in universities in England. The Guardian reported that “the government wants to introduce a statutory tort for breaches of the free speech duty, which would enable academic staff or students who have been expelled, dismissed or demoted to seek redress through the courts.” The government is also proposing to appoint a “free speech champion”, who will be responsible for investigating potential infringements of free speech in the higher education sector.

Two immediate legal issues arise. First, is this proposed legislative reform by the government actually necessary? And second, will it be conducive to achieving in its intended aims?

In respect of the first issue, there are already a number of important legal obligations on Universities to promote free speech.

First, the right to freedom of speech is provided for under the common law: see, for example, the recent decision of the High Court in R (Harry Miller) v The College of Policing and The Chief Constable of Humberside [2020] EWHC 225 (Admin) for a restatement of well-established principles.

Second, section 43 of the Education (No.2) Act 1986 already provides a statutory obligation upon universities to ensure freedom of speech. It states:

(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.

(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—

(a) the beliefs or views of that individual or of any member of that body; or

(b) the policy or objectives of that body.

(3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out—

(a) the procedures to be followed by members, students and employees of the establishment in connection with the organisation—

(i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; and

(ii) of other activities which are to take place on those premises and which fall within any class of activity so specified; and

(b) the conduct required of such persons in connection with any such meeting or activity;

and dealing with such other matters as the governing body consider appropriate.

(4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with.

On the face of it, section 43 is a powerful section. It requires a governing body to “take steps” to ensure that freedom of speech is “secured”.

And thirdly, Universities, by virtue of being public bodies subject to the Human Rights Act 1998, are required to comply with the Article 10 of the European Convention on Human Rights. Article 10 states:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 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.”

The afore-mentioned legal duties are enforceable by way of judicial review and an individual, or organisation, is already able to bring a claim alleging that a University is acting in breach of those duties. Whilst damages would not be awarded as of right, were it to be shown that there had been a breach of Article 10 ECHR, a claimant would have a persuasive case for “compensation” under section 8 of the Human Rights Act.

The proposed new law is intended to go further, in that it has been reported that it will apply directly to student unions, not just universities. A student union is not a public body for the purposes of the HRA and therefore does not fall within its scope. However, as a University is already obligated to ensure that a student union within it complies with the principles of free speech (see section 43(4) of the 1986 Act as cited above), it is unclear what the new proposed law is intended to add.

As to the second issue, and the proposed aims of the new legislation, the question is whether it will lead to Universities going from a situation of alleged “no-platforming” (and there is a great deal of debate as to the extent that is actually happening) to permitting any and all to address university audiences, despite the risks that poses in respect of hate speech or radicalisation. If student unions and/or Universities are to operate under a new regime of fear of paying out compensation, will this not lead to them agreeing to free speech by those who may pose a significant risk of causing harm to others? And what of the right to free speech of those who wish to protest against the views of those the new legislation is intended to protect? Ultimately, Universities have to strike a balance. That balance, and the principles as to how it is to be exercised, are already firmly enshrined in our legal framework. As it stands it is unclear how the government’s proposals are intended to advance matters and it will be interesting to scrutinise them once they are put forward.