Protecting Free Speech and Academic Freedom in Universities
| Author | Ian Cram,Helen Fenwick |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12366 |
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LEGISLATION
Protecting Free Speech and Academic Freedom
in Universities
IanCramandHelenFenwick
∗
Restrictions on speaking events in universities have been created both by recent student-led
efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Secur ity Act 2015 which
placed aspects of the government’s Prevent strategy on a statutory basis. The statutory Prevent
duty in universities includes, under the accompanying Guidance, curbing or monitoring events
that could have an impact in drawing persons into terrorism. This article places the combined
impact of Part 5 and student-led curbs on campus speech in context by juxtaposing pre-existing
restrictions with the various free speech duties of universities. Focusing on speaking events,
it evaluates the resulting state of free speech and academic freedom in universities. It finds
potential violations of established free speech norms due to the impact of pre-emptive strikes
against some campus-linked speech articulating non-mainstream viewpoints. But it also argues
that not all such speech has a strong foundation within such norms.
INTRODUCTION
This article analyses curbs on speaking events in universities created both by
Part 5 of the Counter-Terrorism and Security Act 2015 (CTSA) and recent
student ‘no-platforming’ policies. Part 5 in effect placed expression-related as-
pects of the government’s existing Prevent strategy1on a statutory basis for the
first time. It has not so far been the subject of sustained academic examination
that takes account of its first years of operation, in the context of student-led
curbs on speech and of provisions and practices either restricting or promoting
on-campus expression.2The Part 5 provisions are intended to address the risk
of persons being drawn into terrorism by placing duties on certain authorities,
including universities, to prevent the risk ar ising by, inter alia, placing certain
∗Respectively, University of Leeds and University of Durham
1 See Home Office, Countering International Terrorism Cm 6888 (2006); Pursue, Prevent, Protect,
Prepare: the UK’s Strategy for Countering International Terrorism Cm 7547 (2009). See now at
https://www.gov.uk/government/consultations/prevent-duty (all URLs last accessed 15 April
2018). The strategy is outlined in Policy paper 2010-2015 Government policy: counter-terrorism
updated 8 May 2015.
2 See, for an early commentary, J. Blackbourn and C. Walker, ‘Interdiction and Indoctrination:
The Counter-Terrorism and Security Act 2015’ (2016) 79 MLR 840. See also, S. Greer and
L. Bell, ‘Counter-terrorist law in British universities: a review of the “Prevent” debate’ (2018)
Public Law 84.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(5) MLR 825–873
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Free Speech and Academic Freedom
curbs on ‘extremist expression’.3The duty4includes disallowing or monitor-
ing the expression of visiting speakers on the basis that it could aid in the
radicalisation of students.
Further cognate developments have arisen since Part 5 was introduced.
They include the appointment of a Commission for Countering Extremism
headed by a counter-extremism ‘tsar’ who will make recommendations with
a view to addressing what the Home Secretary (at the time, Amber Rudd)
has called the ‘scourge of extremism in all its forms’.5The Prime Minister
and Home Secretary also confirmed in 2017 that there would be a review
and expansion of the Prevent anti-radicalisation programme.6At the same
time concerns have been expressed as to the impact on campus free speech
of student ‘no-platforming’ policies, leading to a proposal to fine universities
that fail to uphold free speech7and to a significant report on campus speech
from the Joint Committee on Human Rights (JCHR) in 2018.8The Office for
Students (OfS), operative from April 2018,9has also been established, intended
inter alia to stand up against censorship on campus.10 The Higher Education
Minister has expressed the hope that the OfS will ensure that university students
are exposed to ‘new and uncomfortable ideas, and engage in robust, civil debate
and challenge.’11
Taking account of these nascent developments, this article focuses on the
conflicting pressures on campus opposing or protecting free speech and aca-
demic freedom, in order to offer an original contribution to the existing legal
literature. Pre-emptive strikes against speech articulating non-orthodox and dis-
senting viewpoints may on several grounds be considered problematic, given
the core mission of universities to protect free speech and critique a range of
orthodoxies in the name of academic freedom. The pre-existing provisions and
practices, Part 5 and student ‘no-platforming’ and ‘safe space’ policies taken
together can fairly be said to aid in fostering an intellectual environment within
which restrictions on free speech may be condoned. But in critiquing these
3 See CTSA, ss 26-33. For sections 26 and 29 and the accompanying Guidance for Higher
Education Institutions, see notes 101, 104 and 110 below.
4 The duty is applicable to England, Wales and Scotland, and took effect in Higher Education
Institutions on 21 September 2015.
5 The appointee, Sara Khan, is tasked with providing a comprehensive report into the scale,
influence and reach of extremism in Britain: https://www.gov.uk/government/news/sara-khan-
to-lead-commission-for-countering-extremism. See further n 103 below.
6 See n 102 below.
7 Sam Gyimah MP HC Deb 2017-18 vol 636 col 695 27 February 2018: The power to fine
universities is given to the Office for Students by the Higher Education and Research Act 2017
8 Joint Committee on Human Rights (JCHR), Freedom of Speech in Universities 4th Re-
port of Session 2017-19 27 March 2018 at https://publications.parliament.uk/pa/jt201719/
jtselect/jtrights/589/589.pdf.
9 It has taken over a number of HEFCE’s regulatory functions for the University sector functions
after HEFCE was abolished on 1 April 2018. See n 117 below.
10 Freedom of speech was included in a standard list of ‘public interest principles’ which would
form part of the ‘public interest governance condition’ applying to the ‘Approved’ categories
of universities. For problems surrounding the appointment of OfS members, see C. Phipps and
others, ‘Toby Young resigns from the Office for Students after backlash’ The Guardian 9January
2018.
11 Sam Gyimah MP HC Deb (2017-18) vol 636 col 28 WS 28 February 2018.
826 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(5) MLR 825–873
Ian Cram and Helen Fenwick
conflicting pressures, this article will also reflect on the extent to which some
expression that may potentially be barred from campus genuinely engages free
speech values.
PRE-EXISTING LAW AND PRACTICE UNDERPINNING
THE CURBING OF SPEECH ON CAMPUS
Placing of the Preventduty on a statutor y basis, covering on-campus expression,
could be viewed as unnecessary since a range of criminal offences already existed
that could be invoked against certain speakers or materials in universities. Any
university that apprehended the commission of one of those offences would
have been expected to take preventive action, under existing duties.12 The
perception that one of these offences might arise has been relied on by university
authorities to cancel speaking events or withdraw invitations to speakers, while
the Public Sector Equality duty also has the potential to lead to the curbing of
some expression on campus. That duty and the various criminal offences are
reflected in the university Codes of Practice promulgated in response to the
duty to promote free speech in section 43 of the Education (No 2) Act 1986
(discussed in full below under the heading ‘Duties of universities to protect
free speech and academic freedom’), and applying to campus speaking events,
including those organised by student societies. That can sometimes mean, as
discussed below, that they may be cancelled or minimised on the basis of an
over-cautious or over-expansive conception of the legal requirements. Since
student organisers of such events must comply with the Codes, the provisions
discussed below have an indirect impact on Student Unions and their affiliates,
which are also directly affected by Charity Commission Guidance, as discussed
below under the heading ‘Student ‘no-platforming’ and ‘safe space’ practices’.
Counter-terror and hate speech offences
A range of speech-based counter-terror offences could overlap with some
speech potentially caught by Part 5. A speaker in a university who directly or
indirectly encouraged acts of terrorism via oral or written expression, which
included glorifying such acts, whether in the past, the future or generally,
would commit an offence, depending on the response of the audience, and
the speaker’s intention.13 A range of offences are also available relating to
12 Prior to 2015, see the Guidance from universities UK 2013 on external speak-
ers at http://www.universitiesuk.ac.uk/policy-and-analysis/reports/Pages/external-speakers-
in-higher-education-institutions.aspx, suggesting that universities should consider what assur-
ances might be sought from high-risk speakers if concerns were raised that they might breach
the criminal law.
13 The Terrorism Act 2006, s 1(1) prohibits the publishing of ‘a statement that is likely to be
understood by some or all of the members of the public to whom it is published as a direct or
indirect encouragement . . . to them to the commission, preparation or instigation of acts of
terrorism or Convention offences’. This very broad provisionis qualified in a number of respects
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(5) MLR 825–873 827
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