This article first appeared in HE
Universities risk ignoring laws about protecting freedom of speech in their attempt to protect students against being radicalised, write Alison Scott-Baumann and Hugh Tomlinson.
By Alison Scott-Baumann and Hugh Tomlinson
Universities are under increasing pressure from government to prevent students coming into contact with “extreme” ideas. The view is that students exposed to any kind of views designated “extreme” could be drawn into terrorism. But the risk to freedom of speech and academic freedom is obvious. Society needs to avoid a climate in which ideas are seen as dangerous, deviant and extremist if they differ from views that are believed to be held by the majority. Many university administrators now appear to believe that in order to prevent terrorism, the law requires them to curtail the freedom of academic debate. This approach is not only wrong in principle and in practice but also illegal.
The Counter Terrorism and Security Act 2015 places certain duties on higher education authorities but, contrary to what is often assumed, it does not place a statutory duty on universities to monitor or record information or to ban certain kinds of lawful speech. It merely imposes a duty to “have due regard” to the need to prevent people from being drawn into terrorism. The act gives the business secretary the power to issue guidance about how the duty should be exercised. Universities must “have regard” to such guidance. But it nevertheless remains just that―guidance.
And the official guidance intended to clarify the 2015 act is unclear and potentially misleading. Broad definitions of extremism seem to be linked to equally imprecise definitions of “terrorism”, “non-violent extremism”, “radicalisation” and “fundamental British values”. These definitions could be understood to mean that people who are, for example, critical of British foreign policy, are at risk of radicalisation and to suggest that academics and students accustomed to expressing personal views at university would need to be warned of the risks of discussing certain issues. But this is not correct, and universities should not let the imprecise and unclear language of the guidance draw them into placing unlawful restrictions on academic freedom and freedom of speech.
It is crucial to understand that in addition to imposing the Prevent duty to “have due regard” to the need to prevent people from being drawn into terrorism, the 2015 act also emphasizes freedom of academic expression. A university is also under a duty to “have due regard” to the duty to ensure freedom of speech.
The “duty to ensure freedom of speech” is found in the Education Act 1986 and is expressed in the widest terms. The 1986 act confers on universities not just a duty to “have regard” to freedom of speech but a much stronger duty to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees… and visiting speakers”. Universities must ensure, insofar as is reasonably practicable, that no individual is denied use of their premises on any ground connected with “the beliefs or views of that individual”. The only basis on which the duty to ensure freedom of expression can be overridden is if what a visiting speaker is likely to say is not “within the law” or it is not “reasonably practicable” to allow use of university premises (because, for example, no room is available or there is likely to be disorder at the public meeting).
In other words, a university cannot, lawfully, ban a speaker just because he or she says something opposed to “fundamental British values”. Those defined as “extremists” in the guidance have to be given a platform unless they are advocating violence or some other illegal conduct.
And there is more. Universities are public authorities and, as such, it is illegal under the Human Rights Act 1998 for them to act in a way that is incompatible with the European Convention on Human Rights. This includes a right to freedom of expression that can only be restricted if the restriction is legal, for a proper purpose and if the restriction is necessary and proportionate to achieve that purpose. Restrictions on visiting speakers or on the expression of ideas by students or staff are only legal if they comply with these rules. The fact that a speaker may say something provocative or offensive does not mean that his or her rights can lawfully be interfered with. Provided that what is said does not incite, threaten or provoke violence or is otherwise contrary to the criminal law, it would be illegal for a university to prohibit or restrict it.
It is important to remember that the provisions of the Counter Terrorism and Security Act 2015 do not place any strict or absolute duties on universities. They require a university to do three things: to take reasonably practicable steps to secure freedom of speech for students, staff and visiting speakers; to take into account the need to prevent people from being drawn into terrorism; and to take into account the guidance issued by the business secretary. A university would need to consider how far people risk being drawn into terrorism or being upset about any issues (including gender and politics and international relations) by the views likely to be expressed. But if the speaker is going to stay within the law then the event must be allowed to proceed, even if there is no opposing speaker. Any restrictions or prohibitions on speech that does not break the criminal law are likely to be illegal.
The message is clear. Universities need carefully to monitor events, considering each one individually, and they must keep proper records. They should record the fact that they have considered the risks and explain why they have decided that a particular event should proceed. But they would be in breach of their duty to ensure freedom of speech and of duties under the 2015 act if they adopted rigid rules and applied them to every situation without specific consideration of individual circumstances. And they would be acting illegally if they refused a platform to speakers whose actions were unlikely to break the law.
In short, the guidance cannot set down any hard and fast rules. Other factors to be taken into account are existing “duty of care” criteria and the criminal law. Both are already well understood and implemented by universities and should be sufficient to safeguard university staff and students. Every university has a well-developed duty of care policy.
University life is being depicted as fraught with danger―potential and actual―because of a perceived terrorist threat and also the implication that many ideas are dangerous, deviant and extremist. There is a risk that this depiction will eventually have a real and detrimental effect on university culture. These phenomena form part of a new cultural cold war in which universities are at risk of mirroring the deviance that they are tasked with monitoring. It is urgent to consider what can be done in the interests of freedom of speech and academic freedom, before universities are told that thought itself is too radical.
Alison Scott-Baumann is professor of society and belief in the Centre of Islamic Studies at SOAS, University of London. Hugh Tomlinson QC is a practising barrister at Matrix Chambers who specialises in human rights and freedom of expression.