Report
Background
1.In March 2018 we published a report on Freedom of Speech in Universities, which contained recommendations aimed at the Government, the Charity Commission for England and Wales and the Office for Students (OfS), as well as for individual universities and student unions.1 In our Report we drew attention to incidents of interference with free speech rights at individual universities, and expressed concern that “the concept of safe spaces is either too broad or very vague” and that while there was a role for safe spaces, they could not extend to cover the whole of the University setting.
2.We were concerned about the clarity and consistency of guidance on free speech issued by various bodies with a role in regulating this individual university policies, including Government’s Prevent Duty Guidance and the Charity Commission guidance for charities in general and student unions in particular. We were also anxious to explore the role of the newly created Office for Students in securing freedom of speech in universities.
3.In evidence to the inquiry, the Minister of State for Universities, Science, Research and Innovation, Mr Sam Gyimah, announced that he was to hold a “free speech summit” with interested stakeholders, to “thrash out” where responsibilities lay and to make sure they did not cut across one another. We welcomed this in our Report. We have now received responses from the Government, the Charity Commission and the Office for Students, which we publish as appendices to this Report, together with a letter from the Minister on that free speech summit. We are pleased that the responses show that the bodies concerned are taking action on our Report, but there are a number of issues where we will be undertaking further monitoring, which we highlight in this supplementary report.
Response from the Government
4.The Government accepts our finding that the behaviour of some protesters and student groups may disrupt free speech, and that the complex web of rules and guidance on this matter may impede free speech, rather than supporting it.
5.The promised free speech summit was held on 3 May 2018, and resulted in the participants’ commitment “to developing a shared piece of guidance to ensure that there is a clear and common understanding of the legal responsibilities, rules and regulations around free speech.” The response notes that the EHRC will take the lead on developing guidance over the summer, and that the Committee’s guidance will assist it in taking swift action, to put together “a product” by autumn 2018.
6.The key recommendation of our report was that coherent, consistent and accessible guidance material should be produced by January 2019 at the latest. The Government is displaying a welcome sense of urgency, and we trust it will succeed in its ambitious aim of having the guidance in time for the new university year. We will review that guidance when it is published this autumn. We agree with the Government that this issue cannot be addressed by guidance alone, but that development of this guidance will be a “first step in a process of exposing and addressing any and all factors which stand in the way of our universities being places of truly open and challenging discourse”.
7.In our Report we endorsed the need for Prevent as a strategy for preventing the development of terrorism, but expressed concerns about the definition of extremism, the clarity of the guidance, and repeated our earlier recommendation for an independent review of the Prevent duty.
8.While we are disappointed that the Government does not plan to amend the Prevent Duty guidance to clarify its application in the light of the judgement in Salman Butt v the Secretary of State for the Home Department,2 we note that the overarching free speech guidance will cover how Prevent Duty guidance and Charity Commission guidance should be used in the context of freedom of speech. This may help to resolve problems identified with the Prevent Duty guidance. In addition, we accept that the Independent Commission for Countering Extremism will have identifying extremism and advising on new policies to tackle it as part of its remit. We are content that the Government is not pre-empting the advice of the Independent Commission by reviewing its definition of extremism, but recommend that if the Commission considers that the current definition is unsatisfactory it should say so clearly and publicly.
9.While we continue to believe that an independent review of Prevent is necessary, we welcome the fact that Prevent will form part of the Government’s review of its wider counterterrorism strategy (CONTEST). We are pleased the Government and the OfS responses both refer to joint work to develop information sharing processes and ensure Prevent work strikes the right balance between security and transparency, and that the Government is publishing more information about Prevent. We will keep the Prevent strategy under review, but clearly further substantive work on the Prevent Duty in higher education is likely to be deferred until various documents are published, including the OfS’s summary of Prevent Duty reports.
10.We welcome the fact that the Government response makes it clear that it expects other regulatory bodies, such as the Office for Students and the Charity Commission to play their part in ensuring that free speech in universities is upheld and that, in holding the free speech summit, it has taken action to ensure this is done.
Office for Students
11.We very much welcome the fact that the OfS shares our concerns that there are disincentives for students to put on events which discuss topics include speakers that other groups may want to contest, and that this or onerous bureaucracy may be having a chilling effect which results in events never even taking place.
12.We understand that the OfS is both independent, and a new institution which needs to establish its ways of working. Moreover, the OfS needs to consider its general duty to have regard to the need to protect institutional autonomy. We note that the OfS will be collecting data about complaints reaching the Office of the Independent Adjudicator, in addition to implementing a process for students, whistleblowers or others to report issues of concern to the OfS itself.
13.The Committee recommended that “the OfS should report annually on free speech in universities, including naming when universities are been non-compliant with the responsibility to secure free speech, under the Education Act 1986.” The OfS has not committed to report annually on free speech, but may do so from time to time. We remain of the view that it would be helpful for the OfS to report annually on free speech issues, but this need not be as a stand-alone report: inclusion in the Annual Report would suffice.
14.We welcome the OfS’s commitment to publish regulatory action and to publish the reasons for this action being taken where there has been a breach of registration condition E2. We consider this meets our recommendation to indicate where universities have been non-compliant with their duty to secure free speech, although we would prefer it if such actions were also referred to in any discussion of free speech in an annual report or other document.
Charity Commission
15.In the course of our evidence the Charity Commission for England and Wales undertook to review its guidance on Protecting Your Charity from Harm and of its publicly available staff operational guidance on student unions, which is internal staff guidance, but publicly available. Despite these welcome undertakings we have some concerns. Statements such as “We believe the charity law rules are very clear, but we recognise that trustees may find the judgements they may have to make in applying them, in a small number of occasions, challenging” suggest the Commission has not fully digested the evidence we had received on the chilling effect its guidance has had on freedom of speech.
16.We suggested that although charity law was a complex area, the Government should consider whether student unions should be regulated by the OfS rather than the Charity Commission. The Charity Commission tells us that at the free speech summit it “was recognised and agreed that, irrespective of regulator, students’ unions, Universities and other HEIs are charities and therefore subject to charity law.” The Commission, OfS and the Government responses all note that student unions support the status of student unions as registered charities (ie subject to Charity Commission regulation). As the OfS says “the regulation of student unions and of universities must be complementary and there must be clarity on the roles, responsibilities and remits of all parties.” The Charity Commission response notes it has developed a meaningful and constructive working relationship with the OfS and the NUS, and that it will work on the new guidance to be developed by the EHRC. We will review the Charity Commission’s revision of its own guidance when it is issued to ensure that it supports the general guidance on free speech rather than undermining it.
Conclusion
17.Overall, we welcome the constructive responses to our Report, and the consensus that the Article 10 right to freedom of speech in universities is important. We will keep progress made by the Government, the Charity Commission and OfS under review and will consider whether further action is needed.
1 Joint Committee on Human Rights, Fourth Report of Session 2017–19, Freedom of Speech in Universities, HC 589/HL 111
2 [2017] EWHC 1930 (Admin). The judgment affirmed the legality of Prevent Duty guidance, clarified the type of speech to which the guidance applied and explained that the Prevent Duty had to be balanced against the statutory duty to secure freedom of speech.
Published: 13 July 2018