Polic(y)ing Academic Freedom Of Speech – What Universities Are Getting Wrong And How To Fix It

Universities seem to be getting it wrong when it comes to dealing with freedom of speech and, particularly, academic freedom of speech - a subset of the general concept which pervades the very essence and purpose of the academy.

In this blog, I want to focus on one of the core pieces of legislation which governs the law in this area: the duties under s43 of the Education (No. 2) Act 1986. I also want to discuss some ideas for legislative changes which the Government may wish to consider in order to enhance the protection for free speech on campus in line with the commitment in their 2019 manifesto.

Section 43 is central to many of the recent controversies around 'no platforming' of speakers, including prominent academics who were due to speak on issues which fell squarely within their professional expertise and competence, thereby triggering the higher level of protection afforded to academic speech under Human Rights law. Further clarity on these duties is very timely - last month saw the launch of a new Free Speech Union, which (among other things) intends to put pressure on academic institutions where it perceives that there has been a breach of its members' rights to speak freely. At the time of writing, the FSU has already written letters in relation to the treatment of Amber Rudd and Professor Selina Todd.

What universities are getting wrong

Section 43(1) requires:

"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."

Further, "with a view to facilitating the discharge" of that s43(1) duty, relevant establishments must "issue and keep up to date a code of practice" which sets out the procedures for organising and conducting meetings in respect of which the duty is engaged.

The vast majority of relevant institutions will have, no doubt, put codes of practices ("COPs") in place after s43 was introduced - the question is whether they have been adequately keeping such COPs up to date in line with their duty to do so. I do have serious doubts as to whether that is the case and, consequently, whether institutions have COPs in place which can actually allow them to properly facilitate the discharge of the s43(1) duty.

One of the main reasons for my doubts is the fact that various parts of the s43(1) duty have been subject to change and development over the years and that even a brief consideration of some leading institutions' COPs suggests that they have not been updated in line with such changes, as I set out below.

First, the meaning of "within the law" is constantly being nuanced both by statute and case law. Since 1986, various statutes have come into force which have had an impact upon this key qualification of the duty - of primary importance are the Equality Act 2010 ("EA"), the Human Rights Act 1998 ("HRA") and the Counter-Terrorism and Security Act 2015 ("CTSA"):

As I've set out in detail in a previous blog, there is a rich seam of case law from the European Court of Human Rights (as given effect by the HRA) concerning academic freedom of speech which has a direct and fundamental effect on how "within the law" should be interpreted in an academic context. As recent guidance, including from the Equalities and Human Rights Commission on freedom of expression in universities, makes no meaningful mention of the case law around academic freedom of speech, it would come as no surprise to see omissions in an institution's COP - unfortunately that is no excuse for not complying with the law.

The EA also has an impact (as I set out here) - for instance the public...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT