Is there a meaningful threat to free speech on campus?

The most flimsy and longest-running of recent controversies, freedom of speech on campus, has received a couple of recent contributions that warrant some attention.

First, Parliament’s Joint Committee on Human Rights (JCHR) published the government response to its report on freedom of speech in universities, and then the Higher Education Policy Institute (HEPI) published Cracking the Code: A practical guide for university free speech policies.

Hot potato

The purpose of this blog is not to set out a detailed analysis of either of these documents, but to pick out a few key points. HEPI set out why it considered its report necessary as follows:

“The need for such a contribution is clear. The question of whether UK higher education institutions are effectively promoting and facilitating free speech on campus is a political hot potato. In recent years there have been several high profile incidences reported in the press where prominent speakers have been prevented, or intentionally hindered, from speaking freely on campuses due to their unpopular political or social views” [emphasis added].

The report then lists what it describes as notable cases. They are the same cases that rear their pitifully unimpressive heads every time the issue arises: Rees-Mogg being forcefully heckled at UWE, Cardiff being petitioned to prevent Greer from speaking and someone refusing to speak alongside Tatchell at Canterbury Christ Church.

The first obvious and salient point is that in none of these cases were the speakers prevented from speaking. Indeed Tatchell, writing the foreword to the report, makes the point that the exclusion of speakers is “relatively rare.” So rare that it seems that HEPI couldn’t find any examples to cite.

The right not to speak

Instead, what the examples cited show is people exercising their own right to free speech by asking for invitations to be rescinded, or exercising their rights not to speak alongside people they did not want to speak alongside. The HEPI report cited another instance where the University of Cambridge appointed an independent chairperson for an event and was met with protests that this altered the nature of the event in question, i.e. by people exercising the right to free speech to question what the arrangements for the event meant for its character.

It seems from this that what is causing consternation is not whether free speech is permitted on campus, but rather that the reaction of some people to some proposed speakers and events has not been positive and supportive. It seems that what is desired is a process where the only mechanism for registering disapproval or disagreement to a viewpoint is by treating the whole exercise like the Oxford Union, with a motion being presented and opposed, questions from the floor and then a summing up. But to insist on treating it like that would involve the significant curtailment of many people’s rights to free speech and expression. This seems an odd outcome to a moral panic about there being threats to free speech on campus.

Arguably, the examples that have so exercised politicians and the press are signs of a robust culture of free speech on campuses. Speakers were invited, vigorous objections were received and considered, and the events ultimately proceeded.

Conflicting duties

The second point of concern from the HEPI report is the treatment of the requirements of the Prevent guidance, and in particular its criticism of the fact that institutions reserve the right to ask for details in advance of what speakers might say. It relies on the case of Butt v Secretary of State for the Home Department [2017 EWHC 2619 QB], which clarified that the Prevent guidance is simply that – guidance – and that the duty is only to “have due regard” to it alongside other duties, including the free speech duty. The HEPI report also relies on the JCHR’s disapproval of the practice of asking for transcripts of proposed speeches or proposed content in advance and, taking these two things together, recommends that institutions remove such requirements from their codes of practice.

The problem is that this relates to the area where the Prevent guidance is probably at its most strong and prescriptive. Here’s what the relevant sections say:

“Furthermore, when deciding whether or not to host a particular speaker, relevant higher education bodies (RHEBs) should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.

We would expect RHEBs to put in place a system for assessing and rating risks associated with any planned events, which provides evidence to suggest whether an event should proceed, be cancelled or whether action is required to mitigate any risk. There should also be a mechanism in place for assessing the risks associated with any events which are RHEB- affiliated, funded or branded but which take place off-campus and for taking swift and appropriate action as outlined in paragraph 11”.

Institutions are expected to prospectively assess whether what is likely to be expressed at the event contravenes the Prevent duty and unless the risk can be fully mitigated (not just reduced) the institution is expected to cancel the event. How else can this be done without asking what is intended to be discussed at the meeting? Bearing in mind that failure to comply with the guidance can be enforced by court order and in extremis proceedings for contempt, it seems rather unfair to expect institutions to ignore these sections of the guidance off the back of a mere recommendation by a committee.

The Prevent guidance undoubtedly does have the potential to affect free speech on campus, but the solution to that is to change the guidance, not to berate institutions for doing their best to balance two conflicting duties that have been imposed on them.

Another area of confusion for institutions is what to do about students’ unions, which are independent charities and thus subject to their own duties under charity law, but in respect of whose premises (whether or not they form part of the institution’s estate) the institution is required to discharge the free speech duty. These are confusions that it is in the government’s interest to solve, by passing or amending the relevant legislation, if it believes them to create a real threat to free speech.

No meaningful threat

It is clear from the government’s response to the JCHR report that it has no intention of doing that. Instead it intends to police a wider perceived problem with the culture on university campuses by “calling out” instances of monoculture, censorious attitudes or groupthink. This is both disingenuous and alarming. The government has no role, expertise or authority to determine what the correct campus culture should be; that should be a matter entirely for autonomous institutions. Unfortunately, after detailed scrutiny and research has failed to uncover any meaningful threat to free speech on campus, the government seems to be moving the goalposts to another “political hot potato” with which to berate the sector.