Everyone has the right to free speech within the law. Unless it is unlawful, speech should usually be allowed. Free speech within the law should mean just that. This can include the right to say things which, though lawful, others may find disturbing or upsetting.
The right extends further than just the right to make speeches. It extends to all forms of expression. Together, freedom of expression and freedom of association cover the right to form societies with lawful aims, even where those aims are not shared with the majority, and the right to peaceful protest.
Free speech is not an absolute right: it is right that there are limitations to ensure that it is not exercised in a way which causes harm to others. We note the law prohibits speech which, for example, incites murder, violence or terrorism; stirs up racial hatred, or hatred to other groups; causes fear of violence, alarm or distress, constitutes harassment or is defamatory or malicious. It does not prohibit speech which others may find upsetting or offensive.
This right to free speech is a foundation for democracy. It is important in all settings, but especially in universities, where education and learning are advanced through dialogue and debate. It underpins academic freedom. Universities are places where ideas are developed, a diverse range of interesting–and sometimes controversial–topics should be debated. Students are among those particularly affected.
A number of factors are limiting free speech including:
The Committee has examined the impact of these factors on free speech in universities and makes recommendations for those involved.
Parliament has enshrined the importance of freedom of speech in the university context in law - with the Education (No. 2) Act 1986 - giving universities a legal duty to secure freedom of speech for “members, students and employees” of the establishment and for visiting speakers.
Given the importance of freedom of speech in the university context, any incursions on this right are a matter of serious concern. We were prompted to start this inquiry because the new regulatory body for English universities, the Office for Students (OfS) is to be given powers to protect freedom of speech in universities and because of concerns expressed by Parliamentary colleagues, Ministers and the media that student attitudes were undermining free speech in universities. We wanted to find out if free speech was indeed being suppressed at universities and what impact, if any, the Prevent duty had had on freedom of expression in higher education settings. As this report sets out, we wanted a full evidence base, so in addition to our call for evidence, we commissioned research, conducted a student survey and ran a web forum to draw in views and relevant experience.
The governance framework of universities and student unions is complex. While central government has a role in setting the regulatory framework, the new Office for Students, the Charity Commission, individual universities, student unions and student societies all have a part to play in securing free speech, and our inquiry has recommendations for all these actors.
The extent to which students restrict free speech at universities should not be exaggerated. Where it happens, it is a serious problem and it is wrong. But it is not a pervasive problem. The evidence we have taken shows that overall there is support for the principle of freedom of speech among the student population. But even though much of the concern about free speech appears to have come from a small number of incidents which have been widely reported (and those reports are often repeated), any interference with free speech rights in universities is unacceptable and we are concerned that such interference as has been reported could be having a “chilling effect” on the exercise of freedom of speech more widely.
Student societies should not stop other student societies from holding their meetings. The right to protest does not extend to stopping events entirely. Intimidating people exercising their free speech rights is particularly deplorable when meetings are invaded by masked protestors seeking to intimidate. Masked protest, intimidatory filming or physical disruption is unacceptable and must be stopped. Law enforcement agencies should take action when appropriate. Where student groups or bodies are inhibiting free speech rights in this way, universities should take disciplinary action to protect the right to free speech, in line with their statutory duty.
Universities must be places where open and uncensored debate (within the law) can take place so students can think for themselves and develop their own opinions on ideas which may be unpopular, controversial or provocative. However, the concept of safe spaces is either too broad or very vague and therefore we do not find it helpful. University is an environment where a range of opinions should be heard and explored. Minority views should not be barred from student union premises.
Even though it is unintended, regulatory regimes are presenting barriers to securing freedom of speech in universities. Moreover, some University codes on freedom of speech and procedures for inviting external speakers put barriers in the way of events, rather than facilitating them. Codes of practice on freedom of speech, which are a requirement for universities in England and Wales, should facilitate freedom of speech, as was their original purpose, and not restrict what is not against the law. Universities should take their responsibilities to uphold the right to free speech seriously.
The Charity Commission’s approach to regulating free speech in student unions is problematic. The Commission’s guidance is not easy to use, is in places unduly restrictive, could deter speech which is not unlawful and does not take adequate account of the importance of debate in a university setting.
We welcome the OfS’ strong support of free speech. We would expect the OfS to intervene if problems emerged at particular institutions. The OfS should provide means by which students can report incidents of intimidation and issues related to free speech. They should ensure that university and student union policies do not inhibit legal free speech and are not unreasonable or overly burdensome. Bureaucracy is not the best way to secure freedom.
The Government rightly states that freedom of speech in universities is essential, and has made it one of the values which the OfS should uphold. But some of those giving evidence to us said that the Prevent duty guidance for higher education institutions inhibits free speech. The fear of being reported for organising or attending an event, combined with the increased levels of bureaucracy following the introduction of the Prevent duty, is reported to be having a “chilling effect” on freedom of speech. The Committee acknowledges the need for a strategy to prevent the development of terrorism both in universities and in wider society, however, we repeat our call for an independent review of the Prevent duty. This review should include consideration of its impact on free speech in universities particularly on Muslim students but also on students of other faiths or no religious faiths.
Universities will have to report to the OfS on their compliance with the Prevent duty. We repeat our previous call for an independent review of the Prevent policy in our report on Counter-Extremism; 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. This would reduce fear and confusion over the Prevent strategy.
The Government must address the impact of regulatory regimes on free speech. The best way to promote free speech is to support those making decisions and to give them as much clarity as possible about the importance of free speech. We are pleased that the Minister of State for Universities, Science, Research and Innovation, Mr Sam Gyimah MP, has committed to hold a summit with university representatives, the NUS (National Union of Students) and the Charity Commission to discuss how best to promote free speech. The Government should make sure that all those with a potential interest are involved in these discussions.
Committees principally make recommendations to the Government and public organisations. The Government’s action in calling together bodies with an interest in this topic may eventually produce clarity around freedom of speech issues in universities. But that will inevitably take time. Clarity is needed now. This Report has recommendations for the Government and many others involved in the university setting. We expect to receive a Government response within two months. We further invite other bodies like the Charity Commission to respond to the recommendations and hope that our finding will prompt an ongoing dialogue within the sector. Given the confusion and complexity about what is and is not permissible, we ourselves have prepared a summary guide to help those organising debates navigate what is and is not within the law.
1 Institutions in Scotland and Northern Ireland are not subject to s 43 duty. See Chapter two, para 16
2 In Scotland and Northern Ireland the statutory regime is different as we discuss in Chapter two.
Published: 27 March 2018 by authority of the House of Commons and House of Lords