Appendix 1: Government Response
The Joint Committee on Human Rights published the report of its inquiry into Freedom of Speech in Universities on 25th March 2018. This document sets out the Government’s response to the Committee’s report.
Introduction
The Government welcomes the Committee’s recognition of the importance of freedom of speech in universities. We support a number of its conclusions and recommendations. Many of the recommendations in the Committee’s report are for bodies other than Government; in these cases we have commented where it is appropriate to do so.
Free speech plays a crucial role in generating rigorous debate, advancing understanding and allowing students to challenge conventional wisdom and discuss controversial subjects. The Government is strongly committed to protecting and promoting the right to lawful freedom of speech. We are grateful to the Committee for their work to establish the nature and extent of any threats or barriers to free speech on campuses.
In particular, we welcome the Committee’s work to clarify that while there may not yet be widespread censorship, there are some genuine problems which must be addressed; in particular the behaviour of some protestors and student groups, and the risk that a complex web of rules and guidance may impede free speech. We recognise these challenges, and we are taking clear action to address them.
This is not something Government alone can solve. To begin a collective and collaborative approach to preserving free speech in higher education, on 3 May 2018 the Universities Minister chaired a free speech summit. The Minister brought together regulators, representative bodies and decision-makers in higher education, who committed to developing a shared piece of guidance to ensure there is a clear and common understanding of the legal responsibilities, rules and regulations around free speech. Attendees also agreed that this guidance would give practical advice and would set out a clear set of overarching principles for universities and student unions.
The Government’s aspiration for this guidance is that it will provide much-needed clarity on the numerous issues which intersect with freedom of speech on campus, and which were rightly addressed by the Committee’s report. Among these are no-platforming, the concept of freedom from harm, the use of safe spaces, protest, and fostering appropriate debate and challenge.
This guidance will be developed over the summer, with regular meetings between parties and involvement from the Universities Minister at key milestones, with the intention of bringing together a product by autumn 2018. We recognise that the Committee has produced its own guidance which we welcome. We trust this will enable us to take swift action in this respect.
The development of this guidance is the most recent and ambitious of a number of measures the Government has taken over the past year to safeguard free speech in universities. Last year we extended the duty in the Education (No 2) Act 1986 to cover all registered providers of higher education, and the Office for Students’ (OfS) regulatory framework includes a free speech public interest principle to enable the regulator to intervene with sanctions where issues arise. We have also set clear expectations of the OfS that it will work with the sector to make sure universities are upholding free speech.
The Committee was right to look at the issue of speakers and events. This is where many high-profile concerns have arisen, and where the most obvious risks of restrictions on the right to freedom of expression might come about. The Committee collected valuable evidence on the issues which might surround these events. However, what the inquiry did not consider is the culture in our universities. We are concerned that there may be a wider issue here. The JCHR’s inquiry and the subsequent public discourse has begun to expose a deeply concerning tendency amongst some within universities to reject any viewpoints which do not conform to what is ‘fashionable’ or ‘socially acceptable’. This can lead to those who wish to express dissenting views–perfectly lawfully–being deemed unwelcome on campus, and at worst feeling unsafe or threatened if they speak out. This risks the foundation of what universities are about: the free and frank exchange of ideas.
This goes far beyond the remit of the Committee’s inquiry into the impact of legal limits and regulation on freedom of speech–it is about ensuring our universities have a genuine diversity of thought. We know that our universities are passionate about the principles of diversity of thought and free speech, but it is becoming clear that this is not always translating into practice. Government is committed to calling out this tendency towards a ‘mono-culture’ on campus, and we urge universities to counter censorious attitudes and groupthink wherever they arise.
We appreciate that this is an issue that cannot be addressed by guidance, or indeed by Government. We are confident that the proposed EHRC-led guidance will be a clear step towards resolving a number of the issues raised by the Committee; this is the 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. We are committed to continue to work to make sure that all students feel free to lawfully express their views–whatever they may be–and that robust, rigorous debate remains a core part of the university experience for all students.
Responses to conclusions and recommendations
Factors inhibiting free speech
Recommendation 1
Any inhibition on lawful free speech is serious, and there have been such incursions, but we did not find the wholesale censorship of debate in universities which media coverage has suggested. There are real problems which act as disincentives for students to put on challenging events and whilst most student union officers who responded to our survey say they are confident that they and their companions can speak freely, such disincentives could be having a wider ‘chilling effect’, which is hard to measure. A much broader survey of students’ opinion would be needed to assess levels of confidence amongst the student body as a whole. (Paragraph 37)
We are glad that the Committee did not find evidence of wholesale censorship on campus. We have been clear, however, that the number of events which go ahead is not a sufficient metric to establish whether there is an issue. We must also consider the events which may not go ahead in the first place, and those who may be deterred from speaking their mind.
As the Universities Minister told the Committee, we are particularly interested in establishing whether there is a broader culture of hostility to certain viewpoints which may act as a deterrent and impede free speech. We welcome the Committee’s work to seek reliable evidence on this, and recognise that it is challenging to measure the extent to which this may be taking place.
We are pleased that the Committee’s research corroborates the evidence of HEPI’s 2016 survey, which showed that 83% of respondents did feel free to express themselves at university. At the Universities Minister’s free speech summit, the EHRC said they were considering undertaking more research in this area.
The Committee heard some views which referenced a ‘chilling effect’ in relation to Prevent processes being applied inappropriately in order to shut down free speech. This would be a clear misapplication of Prevent, and the government has seen no evidence of this being the case. Further, the judgment in the Dr Butt case, which the committee references in its report, did not accept the evidence put forward by the claimant of a chilling effect. The Office for Students will continue to make sure universities are equipped to implement Prevent proportionately and appropriately without chilling free speech.
Recommendation 2
Student groups are not obliged to invite a particular speaker just because that person wants to speak at the university, or to continue with an invitation if they freely decide they no longer wish to hear from a particular person. Speakers are at liberty to decline to share a platform with those they oppose. Speakers can also decline to attend events if they do not wish to comply with conditions (including reasonable conditions such as lawful speech or being part of a balanced panel). None of these is an interference on free speech rights. But some of the activities are interferences with the right to freedom of speech. The imposition of unreasonable conditions is an interference on free speech rights. We do not, for example, consider it a reasonable condition that, if a speaker gives an assurance that their speech will be lawful, they be required to submit a copy or outline of their speech in advance. (Paragraph 41)
It is ultimately up to institutions to determine how they balance their duty to promote freedom of speech with their other legal obligations (such as duties under the Equality Act or the Prevent duty). This includes assessing and managing any risks associated with speaker events.
Government has a responsibility to protect the public from harms—in addition to terrorism—which extremists pose to our society. If extremism is left unchallenged we risk intolerance and bigotry being normalised, minorities being targeted and the isolation of communities. We are clear that challenging extremism does not mean banning lawful speech, but it does mean ensuring the right steps are taken to contest extremist narratives and make sure that those who wish to spread hatred do not go unchallenged. It also means ensuring that risks have been assessed effectively and appropriate mitigations put in place–in particular where there is a significant risk that the speech may veer into unlawful harassment and discrimination, incitement to violence or terrorism. With this in mind, we believe that institutions should be free to determine if this includes an advance copy of a speech in certain circumstances, where the risk is highest.
The Charity Commission has also produced guidance (“Protecting Charities from harm: Compliance Toolkit”, Chapter 5) for student unions to identify and mitigate risks. The guidance recommends a ‘layered’ approach; the greater the risks identified by the trustees of an event or a speaker, the more stringent the mitigation that may be necessary. This guidance provides an illustrative list of possible mitigations, including the potential to ask for an advance copy of a speech–although the guidance is clear that it is not written or intended as a requirement.
As Government has made clear and will continue to make clear, higher education is a place where students should be exposed to a range of ideas, including those that may be controversial and unpopular–and where they learn to think critically and challenge those who they disagree with, not shut them down. We consider it a problem if there is a culture in universities where students refuse to hear from those with whom they disagree.
The Universities Minister will be undertaking a series of campus visits where he will engage directly with students on a number of issues. One of these topics will be the value of robust debate and challenge. We also welcome the involvement of the NUS in the recent free speech summit, and hope to continue this collaboration to facilitate respectful debate and a diversity of viewpoints on campus. Furthermore, we will publicly call out those who attempt to make certain viewpoints entirely unwelcome on campus, or who threaten, harass or ostracise those who express such unpopular viewpoints.
Recommendation 3
In our view, freedom of expression is unduly interfered with:
- when protests become so disruptive that they prevent the speakers from speaking or intimidate those attending;
- if student groups are unable to invite speakers purely because other groups protest and oppose their appearance; and
- if students are deterred from inviting speakers by complicated processes and bureaucratic procedures.
It is clear that, although not widespread, all these problems do occur and they should not be tolerated. (Paragraph 42)
We agree with the Committee’s conclusion in this area. The Universities Minister’s free speech summit considered how to address both the issue of potentially overcomplicated processes, and the overzealous opposition to speakers with unpopular views to the point that they are unable to speak. Sector partners including the Charity Commission, Office for Students, NUS, Universities UK, independentHE and GuildHE agreed to work together with Government and the European Human Rights Commission to develop a single, unified piece of guidance that will serve to bring together and clarify the existing legal duties and guidance around free speech for all, including universities and student unions.
This guidance will set out core principles and expectations, and is intended to make it significantly more difficult to hide behind processes and procedures in order to stifle free speech.
We of course support the rights of students to protest legitimately. Peaceful protest itself is a legitimate form of freedom of expression. However, we expect institutions to take appropriate disciplinary measures in cases of violent protest or protest that shuts down free speech. This sort of protest is unacceptable. Allowing protests to keep those with unpopular or unfashionable views from speaking sends a message to students that only certain views are ‘acceptable’.
We expect universities to communicate clearly to students the value of lawful speech and the consequences for individuals who participate in violent protests. The Universities Minister’s summit agreed to consider principles around student protest when developing the new free speech guidance.
Recommendation 4
Students and student union representatives have the right to freedom of association and expression, which are protected by Article 10 and 11 of the ECHR, and can cover forms of peaceful protest. However, it is unacceptable for protestors to deliberately conceal their identities, break in with clear intention to intimidate those exercising their rights to attend meetings or to seek to stop events. Universities have a statutory duty to initiate disciplinary measures if individual students or student groups seek to stop legal speech, or breach the institution’s code of conduct on freedom of speech. The police should take appropriate action against individuals committing criminal acts in the course of protests. (Paragraph 50)
We welcome the Committee’s identification of this issue, and we strongly agree that this type of violent or intimidating behaviour is unacceptable.
The statutory free speech duty on universities does not require institutions to initiate disciplinary measures, but it does require them to take reasonably practicable steps to ensure freedom of speech, which may include disciplinary measures.
Recommendation 5
There are, quite properly, legal restrictions on speech. Where speech leads to unlawful harassment of individuals or groups protected by the Equality Act 2010, then this is contrary to the institution’s duty to have due regard to the need to eliminate discrimination, and would be unlawful. Mutual respect and tolerance of different viewpoints is required to hold the open debates that democracy needs. Nonetheless the right to free speech includes the right to say things which, though lawful, others may find offensive. Unless it is unlawful, speech should normally be allowed. (Paragraph 54)
We agree with the Committee that free speech must of course be balanced with statutory responsibilities such as the Equality Act 2010, and with other duties such as the Prevent duty and health and safety legislation. The Committee has rightly noted that universities are bound by the Public Sector Equality Duty to have due regard to the need to eliminate discrimination–though this is a duty to have due regard to certain factors rather than to actually prevent unlawful harassment.
We expect institutions to facilitate free speech responsibly, and where appropriate put reasonable mitigations in place to ensure the safety and security of students, to fulfil their duties under the Equality Act, and to prevent extremist narratives from stoking hate. Nevertheless, in the vast majority of cases, we agree that lawful speech should normally be allowed.
Mutual respect and tolerance is crucial to holding a constructive debate. Real, meaningful freedom of speech is about more than just individuals expressing their own views or being deliberately unpleasant or controversial to ‘bait’ an audience, as we have seen with some speakers in recent years. In most cases, this behaviour is not unlawful and it is not for Government to intervene. Even where speech is deliberately unpleasant or controversial, that in itself is not grounds to censor it. However, we believe universities should see themselves as having a responsibility to facilitate respectful, civil debate wherever possible.
The OfS’s monitoring of the Prevent duty should pick up where legal duties are not being effectively balanced. Its new role in relation to freedom of speech will enable it to support institutions to promote and facilitate meaningful debate, and to investigate and intervene where institutions are not upholding the principle of free speech.
Recommendation 6
Whilst there must be opportunities for genuinely sensitive and confidential discussions in university settings, and whilst the original intention behind safe space policies may have been to ensure that minority or vulnerable groups can feel secure, in practice the concept of safe spaces has proved problematic, often marginalising the views of minority groups. They need to co-exist with and respect free speech. They cannot cover the whole of the university or university life without impinging on rights to free speech under Article 10. When that happens, people are moving from the need to have a “safe space” to seeking to prevent the free speech of those whose views they disagree with. Minority groups or individuals holding unpopular opinions which are within the law should not be shut down nor be subject to undue additional scrutiny by student unions or universities. (Paragraph 60)
We are pleased that the Committee shares the Government’s position on safe space policies—which is that while often well-intentioned, they stifle those who hold certain views. We also strongly agree that a ‘safe space’ policy cannot apply to an entire campus without restricting free speech.
We fully support the objective of making sure that students feel safe and free to express themselves. As mentioned above, universities have an important role in creating the right environment to ensure this is the case, which includes not just a consideration of the speakers for an event, but also how protests will take place. We are clear that freedom of speech cannot be achieved through censorship or marginalising some groups to protect others; free speech must be for everyone.
The Government calls on student unions and universities to work together to empower students to challenge those with whom they disagree, and to facilitate civil and respectful discourse. We hope that the involvement of both NUS and UUK in the Universities Minister’s summit and subsequent work will help to facilitate this.
It is not always an easy task, but exposing students to difficult and uncomfortable ideas is fundamental to the purpose of education. Through this process we help to equip young people with the skills to become productive, inquiring global citizens.
Prevent duty
Recommendation 7
We note the clarity brought by the judgment in Salman Butt v Secretary of State for the Home Department, which affirms the legality of the Prevent duty guidance for higher education, clarifies that the type of speech to which the guidance applies is that which risks drawing people into terrorism and explains how the Prevent duty has to be balanced against the statutory duty to secure freedom of speech. It is unfortunate that the Guidance is not clear on its face without users also having to separately know that they need to refer to the case law. We recommend that the guidance is brought up to date to reflect that judgment and that the Government review its definition of extremism in all official documents, in light of the judgment. (Paragraph 69)
We welcome the Committee’s recognition of the judgment in the Dr Butt case. As the Committee’s report states, this judgment affirms what has always been the case with the Prevent duty: that when complying with it, institutions must have particular regard to their existing duty to secure freedom of speech. This is explicitly set out in the Counter-Terrorism and Security Act 2015, and in the Prevent Duty Guidance, which the judgment recognised.
There is already significant support available to the higher education sector in interpreting and implementing the Prevent duty, which is one of a number of safeguarding duties, alongside protecting students from harassment, discrimination and abuse. In particular from the Department for Education’s team of regional FE/HE coordinators, funded by the Home Office. They and HEFCE/OfS have communicated with institutions about the judgment and the clarification it provides, and will continue to do so. As set out in evidence to the Committee, HEFCE’s monitoring of the Prevent duty has indicated that institutions are already balancing the Prevent duty with the duty to secure freedom of speech entirely adequately, and government support to the sector will continue to ensure this. There are currently no plans to amend the Prevent duty guidance.
With regard to the definition of extremism, in March 2018 we launched the independent Commission for Countering Extremism. This Commission will engage widely and openly on extremism and our core, shared values across the public sector, communities, civil society, families and legal and academic experts. Part of its role will be to identify extremism and advise the Government on new policies to tackle it, including whether there is a need for new powers. The Government ’won’t pre-empt the advice of the independent Commission by reviewing its definition of extremism at this time.
In its first year, the Commission will also:
- publish a study into the threat we face from extremism, and the current response
- advise ministers on the Commission’s future structures, work programme and the appointment of further commissioners. This advice will be informed by the Lead Commissioner’s engagement with stakeholders.
Recommendation 8
The Committee strongly endorses the need for Prevent as a strategy for preventing the development of terrorism. However, the Committee said in 2016 that rigorous and transparent reporting is needed to dispel myths about Prevent and called for an independent review of the Prevent policy in its report on Counter Extremism. We repeat that recommendation; we consider any such review should include an assessment of the Prevent duty’s effectiveness in higher education, and its impact on freedom of speech and association. Such a review should also include consideration of whether Prevent duty reports should be published, and on what basis. (Paragraph 78)
We very much welcome the Committee’s endorsement of the Prevent strategy, and the recognition that it a necessary part of the Government’s work to reduce the threat from terrorism by stopping people from becoming radicalised.
In light of last year’s terrorist attacks in Manchester and London, the Government’s counter-terrorism strategy (CONTEST) is being updated to ensure that the police and security services have all the powers and Government support that they need. Prevent will form part of this review.
We agree with the Committee about the importance of transparency. As the report notes, last year we published data on referrals to Prevent and Channel for the first time, followed by further data published this year—and will continue to do so. Since the Committee’s 2016 report, which rightly acknowledged that there are a number of myths spread about Prevent, we have also undertaken activity to enable members of the public to learn more about Prevent. For example, in May last year we published a document on the Safe Campus Communities website, setting out the process surrounding Channel, following feedback from universities that the Channel referral processes were poorly understood.
However, transparency must be balanced with security considerations. As Sir Michael Barber (OfS) told the Committee, there may be commercial, reputational and security risks associated with the publication of Prevent annual reports they receive from institutions. That is why the Information Commissioner supported HEFCE’s decision not to share Prevent annual reports, a decision which government also supported. As Sir Michael Barber told the Committee, the OfS intends to keep this issue under review.
Furthermore, HEFCE has always published a sector-level summary of the reports for the purposes of transparency, and the OfS will continue this practice. We also are working with the OfS and other partners to better develop information sharing processes and ensure Prevent work strikes the right balance between security and transparency.
Universities and codes of practice
The following recommendations are for universities to consider and respond to as autonomous institutions. However, we have made some comments on the Committee’s recommendations regarding Government’s expectations and vision for the higher education sector.
Recommendation 11
Universities must strike a balance to ensure they respect both their legal duty to protect free speech and their other legal duties to ensure that speech is lawful, to comply with equalities legislation and to safeguard students. It is clearly easier to achieve this if debate is carried out in a respectful and open way. But the right to free speech goes beyond this, and universities need to give it proper emphasis. Indeed, unless it is clearly understood that those exercising their rights to free speech within the law will not be shut down, there will be no incentive for their opponents to engage them in the debate and therefore to bring the challenge that is needed to develop mutual understanding and maybe even to change attitudes. (Paragraph 91)
Recommendation 12
It is reasonable for there to be some basic processes in place so that student unions and universities know about external speakers. Codes of practice on freedom of speech should facilitate freedom of speech, as was their original purpose, and not unduly restrict it. Universities should not surround requests for external speaker meetings with undue bureaucracy. Nor should unreasonable conditions be imposed by universities or student unions on external speakers, such as a requirement to submit their speeches in advance, if they give an assurance these will be lawful. (Paragraph 93)
The context of each institution is different, and we strongly support their autonomy to develop codes of practice appropriate for their individual circumstances, including to determine what conditions may be reasonable to impose to allow free speech to go ahead. However, we recognise that there is significant variability in the approaches taken by institutions. We also accept the view of the Committee that in some cases, codes of practice may be overly complex and could risk engendering overcautious approaches to events.
The OfS is considering how it might support institutions to develop clear and effective codes of practice as part of its free speech role. As part of its role as Prevent monitor, the OfS will work with institutions to make sure codes of practice are appropriate and proportionate; they will also look at how key policies are disseminated. Additionally, the OfS is considering a thematic review around codes of practice as a first phase of its work to promote free speech.
We agree that codes of practice should facilitate freedom of speech. This is their statutory purpose. While—as Sir Michael Barber noted in his evidence—some bureaucracy is no doubt necessary to support the operations of an institution and to balance legal obligations, these codes should never be so onerous that they achieve the opposite of their aims by disincentivising speaker events.
Recommendation 13
We welcome the fact that many universities are prepared to fund the security necessary to ensure controversial speakers can be heard in safety. Where feasible, if security is needed to ensure a legal event can proceed safely, it should be provided so the event can go ahead. Such security should be adequate according to the risks envisaged. Effective action should be taken against protestors who themselves go beyond the law. The more it is accepted that the right to protest is vital, but does not extend to intimidation or attempts to close events down, the less burdensome this will become. (Paragraph 95)
We would expect any risk assessment around a controversial event to include consideration of security requirements. The Prevent duty statutory guidance sets out an expectation that staff responsible for the physical security of an institution have an awareness of Prevent policies and procedures. Institutions are able to access advice and support in carrying out risk assessments effectively via the FE/HE Prevent coordinator networks.
Role of the Office for Students
Recommendation 14
We welcome the OfS’ strong support of free speech. We would expect the OfS to intervene if problems emerged at particular institutions. They should ensure that university policies do not inhibit legal free speech and are not overly burdensome. To help facilitate this, the OfS should have an accessible means of feedback for students to report incidents of intimidation and issues related to free speech, on which the OfS could act as an arbiter between the students, student unions and universities. The OfS should also visit universities that have faced issues regarding freedom of speech, and ensure universities and student unions are respecting this right. The OfS should report annually on free speech in universities, including naming when universities have been non-compliant with their responsibility to secure free speech, under the Education Act 1986. (Paragraph 98)
The OfS is an independent body, and as such it is for them to determine their approach to regulation. It is not the role of the OfS to enforce the free speech duty under the Education (No 2) Act. We understand that the Office for Students will be responding itself to the Committee on these recommendations.
However, the Office for Students does have a clear role in relation to free speech, which we absolutely expect it to exercise where appropriate. There is a public interest principle built into the conditions of registration for all registered institutions, which say that they have to uphold the principle of freedom of speech in their governing documents–and importantly, that they must deliver it in practice.
If it comes to the OfS’s attention that an institution is not doing this–either through media reporting, whistleblowing or other means–they can investigate. If the institution isn’t upholding the public interest principle this might be a breach of a registration condition–in which case in extremis the full suite of sanctions such as monetary penalties or suspension could come into play.
Furthermore, the Government has been clear in Ministerial statements, evidence to this Committee and in the Secretary of State for Education’s guidance to the OfS published on 28 February that we expect the OfS to champion and promote free speech.
Charity Commission
Recommendation 9
Concerns on the part of student unions about Charity Commission powers, and about whether they risked ‘ultra vires actions’ (which appeared to be prompted by the Charity Commission’s guidance) have more impact, and misunderstandings are more widespread, than we had anticipated. The Charity Commission is under a legal obligation to regulate charities, and does so through guidance, but its current approach does not adequately reflect the important role student unions play in educating students through activism and debate. Moreover, the generic guidance on protecting a charity’s reputation does not place due weight on the fact that inhibiting lawful free speech can do as much damage to a student union’s reputation as hosting a controversial speaker. We welcome the fact that the Charity Commission has told us it will reassess its approach [as below]. (Paragraph 85)
Recommendation 10
[…] The Charity Commission should be careful to ensure its actions are proportionate, are understood by student unions, and do not unintentionally inhibit lawful free speech. (Paragraph 86)
As the Universities Minister stated in his evidence to the Committee, we support the Charity Commission’s commitment to refresh their guidance. We strongly agree that regulation should not unintentionally inhibit lawful free speech.
Following the Committee’s inquiry, the Universities Minister met with the Charity Commission’s Chief Executive to discuss their shared understanding of the issues around free speech. The Charity Commission will be closely involved with the development of the EHRC’s free speech guidance.
Free speech summit
Recommendation 15
It is welcome that the Government is taking a broad look at the policy context for freedom of speech, and that the Minister plans to hold a summit with key bodies to work out where responsibilities lie and how all bodies can work together to promote freedom of speech. The Government should ensure that all bodies with an interest in this area, such as the EHRC, are included in this summit to ensure a joined-up approach across the different bodies. Moreover, although we understand that this is a complex area, the Government should consider whether there is any case for the OfS to take over the regulation of student unions rather than the Charity Commission. (Paragraph 100)
We are glad the Committee supports the Minister’s approach to bringing together key players. The EHRC and other relevant partners were involved in the summit on 3 May 2018. As we have set out, this summit was the most significant Government intervention on free speech since the introduction of the statutory duty in the Education (No 2) Act 1986. Its key outcome was an agreement between sector leaders to work together to protect and promote free speech, and to make absolutely clear their shared commitment to the right to free expression.
We do believe it is right that student unions are treated as charities and that they remain regulated by the Charity Commission. The NUS and individual student unions are supportive of the status of student unions as registered charities, which has brought with it credibility and professionalisation.
However, the regulation of student unions and universities must be complementary and clear about the roles, responsibilities and remits of all parties. The Charity Commission and Office for Students will work closely together to make sure they are consistent and clear with regard to free speech. The Government strongly supports this collaborative approach and will continue to encourage it.
Recommendation 16
This dialogue, and intervention to ensure that the Government itself and associated regulatory bodies are working coherently, is long overdue. The Government should ensure that all relevant organisations are included in this process. Both the Prevent duty guidance for higher education institutions and the Charity Commission guidance to student unions should be reviewed. The Government should take the lead in encouraging all the bodies involved in this field to produce coherent, consistent and accessible guidance and material by January 2019 at the latest, paying full attention to the extent of universities’ legal responsibilities to secure free speech. (Paragraph 101)
As we have stated earlier in our response, we have already made progress on this recommendation: all relevant partners in the sector have committed to collaboratively producing guidance, led by the ECHR, by autumn 2018. The Department for Education will coordinate and drive the development of this sector-led guidance. This will include reference both to the Prevent duty guidance and the Charity Commission guidance, and how they should be used in the context of freedom of speech.
Separately, as we have said, the Government’s CONTEST counter-terrorism strategy is being updated, and Prevent will remain an integral part of it.
Conclusion
We have been clear that there is consensus between the Government and the Committee on the paramount importance of protecting free speech on campus and addressing those factors which may inhibit it. We will continue to be vocal defenders of the right to lawful free speech for everyone, and we see our role as helping universities with what they are best placed to do: fostering open debate and the free exchange of ideas. Clashes of views should be seen as positive, rather than something we want to rail against or stop.
We support a number of the Committee’s recommendations, in particular those relating to the free speech summit, and we would echo some of the Committee’s recommendations for universities and for the regulators. On those areas where we take a different view to the Committee, we trust that we have given a full account of the rationale for our approach.
We would like to thank the Joint Committee on Human Rights for its careful consideration of a range of issues affecting freedom of speech in universities and for its subsequent report and recommendations.
Published: 13 July 2018