Freedom of Speech: is there a problem ?

Nous reprenons ici le lien vers le rapport de Sue Hubble et Joe Lewis remis au Parliament Britannique et rendu public par la House of Commons, sur les atteintes à la liberté académique en Grande-Bretagne sous le régime de l’Open Parliament Licence.

Voilà le lien vers ce rapport: https://researchbriefings.files.parliament.uk/documents/CBP-9143/CBP-9143.pdf

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The debate around freedom of speech in universities has become increasingly heated in recent years in part due to a small number of high-profile incidents involving the banning of well-known speakers from campuses. Concerns have also been raised about universities allegedly curtailing freedom of speech through ‘no-platform’ policies and ‘safe spaces’ and it has been suggested that higher education providers (HEPS) are permitting a general atmosphere of intolerance towards differing opinions. 

There is some evidence to suggest that some staff and students of ail political persuasions self-censor their views on campus and online, but research has found that most UK students do not think that free speech nor academic freedom is under threat in their university. 

Official figures by the Office for Students show that only a tiny proportion of events or speakers on university campuses have been cancelled in recent years, and these incidents have occurred at only a very small number of HEPs. 

The legal framework around freedom of speech is complicated. The Education (No. 2) Act. 1986 section 43(1) requires higher education establishments to take reasonably practicable steps to ensure that freedom of speech is protected and the Education Reform Act 1988s202 protects academic inquiry. But freedom of speech is only protected within the law and certain statutory duties such as the Prevent Duty and public order legislation may curtail freedom of speech. 

The Conservative election manifesta 2019contained a commitment to « strengthen academic freedom and free speech in universities and continue to focus on raising standards » and on 17 February 2021 the government published a policy paper containing proposais to strengthen freedom of speech in higher education. The paper proposes: 

• creating a Free Speech and Academic Freedom Champion to champion free speech, investigate infringements of free speech and recommend redress

requiring the Office for Students (OfS) to introduce a new, registration condition on free speech with the power to impose sanctions for breaches 

• strengthening section 43 of the Education (No. 2) Act 1986 to include a duty on HEPs to ‘actively promote’ freedom of speech 

• extending the s43 duty to apply directly to SUs 

• introducing a statutory tort for breach of the duty, enabling individuals to seek legal redress 

• widening and enhancing academic freedom protections 

• setting minimum standards for free speech codes of practice 

There has been a lot of comment on these proposais and many of the responses stated that universities are committed to free speech and questioned the government’s decision to focus on this issue at a time when staff and students are coping with the consequences of the Covid-19 pandemic. 

This briefing sets out the legal framework for freedom of speech in higher education, outlines the issues around free speech and gives the government’s proposais for change. 

4 Freedom of speech in universities – is there a problem? 

1. Background 

For a number of years concerns have been raised around the alleged curtailing of freedom of speech in higher education. These concerns have been raised in the context of the Prevent Duty, the banning of
external speakers and safe space policies. 

ln response to these concerns in 2018 the House of Commons and House of Lords Joint Committee on Human Rights (JCHR) conducted and inquiry into freedom of speech in higher education to find out if
free speech was being suppressed at universities. The committee found that a number of factors could be inhibiting freedom of speech: 

• 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; 

• unnecessary bureaucracy in organising events; 

• fear and confusion over what the Prevent duty entails; 

• regulatory complexity; 

• unduly complicated and cautious guidance from the Charity

• concern by student unions not to infringe what they perceive to be restrictions1 

The report made a number of recommendations including that coherent, consistent and accessible guidance material should be produced for institutions and that the Office for Students (OfS) should
report annually on free speech issues. 

1.1 Legal framework 

The current legal and regulatory context on freedom of speech in higher education is set out in the Department for Education (DfE) policy paper, Higher education: free speech and academic freedom February 2021 pages 12-16 and in Annex A. 

The legal framework around freedom of speech is complicated – higher education providers (HEPs) are subject to a number of statutory duties and these have the potential to conflict with each other and to interfere with freedom of speech. 

Duty to protect freedom of speech 

The Education (No. 2) Act 1986section 43(1) requires higher education establishments to 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.
This law applies UK wide.

Also the Education Reform Act 1988s202, which applies across the UK, contains provisions on academic freedom and states that university commissioners should have regard to the need to protect academic inquiry: 

ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions. 

The Higher Education and Research Act (HERA) 2017 created a new regulator for higher education the Office for Students (OfS). The OfS has a duty to promote freedom of speech in registered HEPs. 

Duty to act within the law 

However, freedom of speech is not an absolute right – it is a freedom ‘within the law’, so the criminal and civil law can set limits on the lawful exercise of this right. 

HEPs must comply with laws governing public order and they must also comply with provisions in the Equalities Act 2010 which prevent discrimination and provisions in the Public Order Act 1986 on the
prevention of racial and religious hatred. 

Institutions also have a common law duty of care towards their students which may be relevant in some situations. 

Duty to protect from radicalisation 

HEPs also come within the Prevent Duty, which is a legal obligation imposed on specified bodies by the Counter-Terrorism and Security (CTS) Act 2015. Under the Prevent Strategyinstitutions must have due
regard to the need to prevent individuals from being drawn into terrorism. lt has been suggested that the Prevent Duty creates a tension with other statutory duties regarding freedom of speech. The
Home Office document, Prevent duty guidance: for higher education institutions in England and Wales,10 April 2019 provides advice in this area. 

Library briefing CBP 7199, Freedom of speech and preventing extremism in UK higher education institutions,20 May 201 5 also gives background and issues around the Prevent Duty. 

1.2 Codes of practice on freedom of speech

Under the Education (No. 2) Act 1986all HEPs are required to havecodes off practice on freedom of speech. These codes set out theprocedures to be followed by students and staff in connection withmeetings and activities taking place on the HEP’s premises (includingSU premises) and on the conduct of persons in connection withmeetings and activities. These codes can be found on universities’websites. The codes should promote freedom of speech and governingbodies must ensure that the code is kept up to date and compliedwith. Institutions may also have separate policies on externalspeakers. 

The House of Commons and House of Lords Joint Committee onHuman Rights (JCHR) report, Freedom of Speech in Universities,statedthat some codes on freedom of speech and procedures for inviting external speakers put barriers in the way of events, rather than facilitating them2; it also said that codes could be too complicated andbureaucratie( ibid.).  

In February 2019 the Equality and Human Rights Commission published new guidance for universities, Freedom of expression: a guide for higher education providers and students’ unions in England and Wales.This guidance is to be used by all institutions and student unions when formulating their policies on freedom of speech. A press release announcing the new guidance stated the sectors commitment to freedom of speech:  

The Equality and Hu man Rights Commission has collaborated withleading organisations from across the sector to develop newguidanceto be used by all institutions and student unions,demonstrating the sector’s commitment to upholding freedom ofexpression. This guidanceis the first time that legal rights and obligationsaround free speech have been defined so coherently, empoweringinstitutions, student unions and individuals to stand up for freespeech and creating a structure for them to work together. ltclarifies the limited occasions where free speech can lawfully belimited, allowing it to flourish for current and future generationsof students. Sector leaders agreed to create new guidance during aDepartment for Education free speech summit in May 2018,which has been produced by the Equality and Hu man RightsCommission, with input from the National Union of Students,Universities UK, Charity Commission for England and Wales,Office for Students, lndependent HE, Guild HE, Commission forCountering Extremism and Home Office.

GOV.UK, Free speech to be protected at university.2 February 2019 

1.3 Students’ Unions (SUs) 

A number of the recent issues around freedom of speech in HEPs have been in relation to SUs barring external speakers. The position of SUs with regard to the Education (No. 2) Act 1986s34 is somewhat complicated. 

Education (No. 2) Act 1986section 43(8) provides that where astudents’ union occupies premises which are not the university’spremises the university is nonetheless required to comply with the s.43duties in relation to the students’ union premises. 

A briefing published by Universities UK, Freedom of speech on campus,explains the effect of the Education (No 2) Act 1986 s43 on studentsunions: 

Student unions are not directly subject to the legal duty relating to free speech explained above, in the sense of student unions themselves having a legal duty to secure freedom of speech. However, the duty on universities will often require a university to take actions which will affect the student union, or encourage a particular course of action on its part. ln addition, the
duty on universities to prevent the denial of use of premises extends to their own premises and student union premises where these are not owned by the university.

Universities UK Parliamentary briefing, Freedom of speech on campus,November

An older publication by the NUS, Managing the risks associated with externat speakers, Guidance for HE students’ unions in England and Wales July 2011 gives further explanation of the legal position of SUs with regard to freedom of speech (p 12-13): 

Students’ unions 

Students’ unions also need to have regard to the legal frameworks. Whilst they are not public bodies for Public Sector Equality Duty23 and Human Rights Act purposes, they are mostly charities subject to the requirements of charity law. They also need to have regard to the scope of the criminal law and potentialcivil liability in relation to external speaker events. A particular question for universities arises where a students’ union decides that an external speaker event should not proceed,
but the university considers that this decision may conflict with its duty to secure freedom of speech within the law under s.43 of the Education (No 2) Act 198624 (see ‘Charity law’). 
As noted in the section ‘The duty to secure freedom of speech within the law’, universities’ duty under s.43 extends to students’ union premises even if these are not owned by the university. This means that universities owe duties in relation to their students’ union premises, regardless of whether those premises are, for example, leased by the union from the university, or indeed from
a third party.  Whilst s.43 undoubtedly places a duty on a university in relation to the students’ union premises, here is a separate question of how it complies with that duty, given that the students’ union is a distinct legal entity with its own policies and procedures. There are two aspects to this question 
The first aspect is whether the s.43 duty also applies to the legal entity that is the students’ union 25 rather than just creating a duty on the part of the university in respect of speaker events in the students’ union premises. The s.43 duty applies to ‘every individual and body of persons concerned in the government’ of the institution. Whether that definition includes a students’ union might be open to legal argument, taking account of the particular facts, including the legal status of the students’ union and its relationship with the institution. 
The second aspect is that the s.43 code of practice should set out the procedures to be followed by students, and should make non-compliance with the code a disciplinary matter. Under s.43(4) universities are under a duty to ‘take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures)’ to secure compliance with the s.43 code of practice. Institutions and students’ unions should therefore seek to align their policies and procedures in relation to external speakers, taking account of the institution’s s.43 duty. Ultimately, if there is a conflict between the decisions ta ken by a students’ union and those of the institution, the institution will need to consider what steps it is ‘reasonably practicable’ to take to secure compliance with the code of practice and s.43 duty, for example through disciplinary action and/or arranging an
alternative event. 

1.4 Office for Students 

Under the Higher Education and Research Act (HERA) 2017 all universities and colleges which register with the OfS must, as a condition of registration, uphold the existing laws around freedom of
speech. The OfS regulatory frameworkstates that the governing body must take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider. The OfS can impose sanctions for a breach of conditions of registration.  The role of the OfS with regard to freedom of speech is set out on the OfS website at Freedom of speech. 

On trouvera ici la suite du document en entier:

What are the issues (p. 9)
The government’s view
Challeng to Academic Freedom
Prevent Duty
No Platforming
Safe Space

Do Universities have a left-wing Bias

ln 2017, a reportby the right-wing thinktank the Adam Smith lnstitute argued that individuals with left-wing and liberal views are overrepresented in British academia, and that this may have had a
number of adverse consequences, including « curtailments of free speech on university camp uses ». 3

An article in the British Journal of Sociology demonstrates that while professors in European universities may be more liberal and left leaning than other professionals, there is little evidence that there exists an exceptional ideological monoculture on university campuses: 

here is no greater homogeneity of political orientations among the professoriate relative to other specific professions, suggesting that there is a diversity of opinions which is similar to what
professionals would find in other occupations.4

The article also notes that « there is no evidence that professors bring their political orientation into the classroom » 5.

On trouvera ici la suite du document en entier:

Governement proposals (p. 16)
Policy paper
New Ofs registration condition
Strenghten the free speech duty
Extend strengthened section 43 duty to cover SUs
Minimus standards for the code of paper qequired undes serction 43

Comment (p. 20)
Sector response

Picture of Collectif


Tribune des observateurs

  1. House of Commons House of Lords Joint Committee on Hu man Rights, Freedom of
    Speech in Universities,27 March 2018. HC 589 p9 

  2. House of Commons House of Lords Joint Committee on Human Rights, Freedom ofSpeech in Universities,27 March 2018. HC 589 p5

  3.  Adam Smith lnstitute, Lackademia: Why do academics /ean /eft?,2 March 2017

  4. H.G. van de Werfhorst, ‘Are universities left-wing bastions? The political orientation of prof essors. professionals. and managers in Europe’.British Journal of Sociology 

  5. van de Werfhorst, ‘Are universities left-wing bastions?’, p62