- This blog was authored by Rose Stephenson, Director of Policy and Advocacy at HEPI.
- This is the second part of a blog series discussing the topic of free speech in higher education. You can read the first part, published yesterday, here. The third part will be published tomorrow.
This blog is part of a short blog series on freedom of speech, and practical implications for universities. This is based on this information we have about university expectations to date, including the Office for Students’ (OfS) Insight Brief: Freedom to Question, Challenge and Debate.
Yesterday’s blog discussed the ‘objective harassment’ test, and why it is difficult to objectively consider such a subjective issue.
The second issue is in relation to invited speakers and how universities will decide ‘whether the proposed speech is lawful’. On this, the OfS Insight Brief sets out an example of a student society inviting a speaker to an event. It states that the University should consider:
- Whether the proposed speech is lawful – for example, could it amount to harassment, noting the objective element of the test for harassment? Speech that is offensive and hurtful, but lawful, is protected.
- Having ‘due regard’ to the need to achieve the different elements of the Public Sector Equality Duty.
- Having ‘due regard’ to the need to prevent people from being drawn into terrorism, while having particular regard to the need to secure free speech.
- What reasonably practicable steps the university or college can take to secure free speech within the law for its students.
There are a few issues here:
- For the university to consider whether the proposed speech is lawful, they would need to know what will be said in the speech. There is no suggestion from the OfS that speakers should have to submit their speech to the university in advance. And even if they did, this wouldn’t cover debates or questions and answer portions of an event.
- Universities may want to consider the types of speeches that a speaker has made previously, and whether those had been legal. However, even if someone had been convicted of illegal speech in the past (let’s say, inciting violence), this doesn’t necessarily mean that their next speech is going to be illegal. And a total restriction on someone’s freedom of speech on the grounds that they have a previous conviction surely goes against the principle of rehabilitation?
Arguably, universities cannot decide if a speech is lawful – quite simply because they won’t have heard the speech. Therefore, grounds for not allowing someone to speak may be more likely to fall under additional considerations.
Having ‘due regard’ to the need to achieve the different elements of the Public Sector Equality Duty.
This gets us back into the difficult situation outlined in the previous blog, of objectively deciding what constitutes harassment. Again, given the intricacies of this, it may be difficult for institutions to make this judgement without seeing the speech in advance.
In his first speech in his role as the Director of Freedom of Speech at the OfS, Arif Ahmed said:
We do not think that merely offensive speech, at any rate in an academic context, comes anywhere near contravention of the broader duties and prohibitions under the Equality Act.
This suggests that speech must go significantly ‘beyond the offensive’ to be considered unlawful. How far beyond is still unclear.
The third item to consider here is:
Having ‘due regard’ to the need to prevent people from being drawn into terrorism, while having particular regard to the need to secure free speech.
Elsewhere in the Insight Brief the OfS outline:
[Universities] have ‘due regard to’ the need to prevent people from being drawn into terrorism. It is not a duty to achieve the aim of preventing people from being drawn into terrorism.
Universities should be mindful that the free speech duty requires them to act, whereas the … Prevent duty require them to think about these matters as they act.
My interpretation of the Insight Brief is that OfS are suggesting that there is a hierarchy of duties, and that a university’s duty to free speech comes above their duty to prevent people being drawn into terrorism.
The issue of terrorism and free speech has become a particular focus following the attacks by Hamas in Israel.
At HEPI’s 2023 Labour Party Conference event, Louisa Clarence-Smith of the Daily Telegraph asked the Vice-Chancellors on the panel if students who showed support to Hamas would be disciplined by their institutions.
Adam Tickell, Vice-Chancellor of the University of Birmingham stated that as Hamas is a proscribed terrorist organisation, any student stating support for Hamas would not only be disciplined by their institution, but they were also at risk of being investigated by the police.
The law on demonstrating support for proscribed organisations is clear. However, there are students, and staff, on campus who will wish to show their support for Palestine.
In relation to recent events, Gillian Keegan (Secretary of State for Education) and Robert Halfon (Minister for Skills, Further and Higher Education) recently reminded universities of their obligation to prevent students being drawn into terrorism, stating:
It is important in this respect to remind you that the Prevent duty requires relevant higher education providers, when exercising their functions, to have due regard to the need to prevent people from being drawn into terrorism. We would also ask that you pay particular attention to any invitations issued by staff or students at your institution to speakers on this subject in order to ensure that any such events do not provide a platform for illegal speech.
No mention of freedom of speech, but the letter does helpfully point out that universities can use the Department for Education’s regional network of Prevent co-ordinators for support when considering speaker invitations on this subject. Access to resources like this, as universities grapple with the complexity of these issues, will be most welcome.
The overwhelming question here is where free speech crosses the line from offensive to unlawful. That still feels very unclear. More concerningly, it feels as though the line may be able to move depending on the political crosswinds. Decision-makers in universities may certainly be feeling buffeted by this storm. And perhaps that is correct: perhaps our understanding of free speech vs illegal speech does change over time depending on national and global contexts? Unfortunately, that makes the role of universities in this political storm extremely difficult.
Short of a speaker declaring that they are going to incite violence or support terrorism, it seems unlikely that a university will be able to revoke an invitation to speak to just about anybody – and perhaps, under the Freedom of Speech legislation, that is exactly how it should be.
Universities need clear advice from the OfS, with examples, of how legal complexities should be balanced when deciding who can speak at an institution. Perhaps it would be too much to ask, but if I were still at my desk at the University of Bath, working out how to turn this into organisational procedure, a lengthy set of case studies and an exemplar risk assessment document would be incredibly welcome.