2The legal and regulatory framework
Introduction
13.Many different people and organisations have a responsibility to uphold free speech in universities in England and Wales:
- Parliament and Government set the overall legislative framework governing universities;
- The Government has statutory powers not just in relation to universities, but in relation to matters which may appear unrelated, such as prevention of terrorism;
- The OfS will have direct regulatory powers over universities;
- Universities have their own codes of conduct for free speech and often also regulate other matters on university or student union premises. This can include conditions with which student unions need to comply (often as a condition of their constitutive document or funding grant from the university), and conditions and standards with which students must comply;
- The Charity Commission regulates student unions as charities;
- Student unions typically determine affiliation to the student union, and organise spaces for events;
- Individual clubs and societies organise events; and
- Individual students (and outsiders) may participate or protest at such events.
This chapter gives a high-level view of the legal and regulatory framework within which these bodies work.
Legal framework relevant to freedom of speech in universities
Competing duties
14.Universities are subject to a number of sometimes conflicting duties under the law which have the potential to interfere with freedom of speech. In England and Wales, universities have a legal duty, under section 43 of the Education (No.2) Act 1986, to secure free speech within the law:
Box 2: Section 43 Education (No.2) Act 1986
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(1) 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. (2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with – a) the beliefs or views of that individual or of any member of that body; b) or the policy or objectives of that body. (3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out— a) procedures to be followed by members, students and employees of the establishment in connection with the organisation i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; ii) and of other activities which are to take place on those premises and which fall within any class of activity so specified; and b) the conduct required of such persons in connection with any such meeting or activity and dealing with such other matters as the governing body consider appropriate. (4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with. |
Source: Education (No. 2) Act 1986, Part IV, Section 43
15.Of note, the key elements of this duty include:
- the duty to secure free speech within the law. It does not require universities to allow or facilitate speakers to break the law through inciting violence, inciting racial hatred, or glorifying acts of terrorism.
- “the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—(a) the beliefs or views of that individual or of any member of that body; or (b) the policy or objectives of that body.”
- The duty also requires institutions to issue and update a code of practice setting out the procedures to be followed by members, students and employees for the upholding of freedom of speech and take reasonably practicable steps (including the “initiation of disciplinary measures”) to ensure compliance with the code.9
16.Institutions in Scotland and Northern Ireland are not subject to the section 43 duty and so are under no statutory obligation to have codes of practice on freedom of speech. It should be added that we found no evidence that the absence of the section 43 duty to secure free speech within the law had had either a beneficial or an adverse effect on freedom of speech in these institutions.
17.Other legislation relevant to freedom of speech in universities applies to all four UK jurisdictions. The most prominent provision is the right to freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights (ECHR). Article 11 of the ECHR provides the right to freedom of assembly and association. The Human Rights Act 1998 incorporates the ECHR into UK law and section 6 of the Human Rights Act makes it unlawful for public authorities to act in a way which is incompatible with a Convention right.10 This means that, where a university is performing functions of a public nature, then it must respect the rights and freedoms set out in the Convention.
18.The right to free speech is not absolute and can be limited by law. There are numerous criminal and civil law provisions which limit the lawful exercise of free speech rights. Statements that discriminate against, or harass, or incite violence or hatred against other persons and groups are not protected under free speech rights, nor are speech or conduct that glorifies terrorism. A fuller list will be found in the guide for universities and student unions annexed to this Report. However, there is no right not to be offended or insulted. Just because a statement may offend another person does not necessarily make it unlawful.
19.Alongside the duty to promote free speech, universities are subject to a range of other sometimes competing obligations. The Equality Act 2010 (which is applicable in England, Wales and Scotland)11 prohibits unlawful discrimination in relation to certain ‘protected characteristics,’12 which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The Public Sector Equality Duty requires universities to “have due regard to the need to—(a)eliminate discrimination, harassment, victimisation;” (b)”advance equality of opportunity;” and (c) “foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”13 Equality law can operate as a limiting factor on freedom of speech by making certain speech and conduct unlawful, and so universities have to balance their obligation to secure free speech with the duty to promote good relations between different groups with protected characteristics.
20.Universities in England, Wales and Scotland are also subject to section 26(1) of the Counter-Terrorism and Security Act 2015. This provision imposes a duty on higher education bodies when exercising their functions, to “have due regard to the need to prevent people from being drawn into terrorism.”14 However, it also requires those bodies, when doing this, to have “particular regard” to the duty to secure free speech. This Prevent duty is part of the Government’s wider Prevent strategy which aims to tackle the factors that predispose individuals or groups to respond to terrorist ideologies. The Prevent duty is underpinned by specific statutory guidance for higher education institutions.15 Therefore, universities must balance their legal duties to ensure free speech with their duty to protect students from being drawn into terrorism. We explore this in more detail later on.
Regulation of universities and student unions
21.Universities and student unions operate in a complex regulatory framework. University independence and autonomy are important. Each jurisdiction has a dedicated organisation for university oversight and, in some jurisdictions, oversight of funding. In 2019, the OfS will take over from the Higher Education Funding Council for England (HEFCE), while the Scottish Funding Council and the Higher Education Funding Council for Wales remain in place. In Northern Ireland, the Higher Education division of the Department of the Economy is responsible for policy and the administration of funding to support education, research and related activities in the Northern Ireland higher education sector.
22.Both student unions and universities are charities, but while universities in England are exempt charities (charities exempt from registration with the Charity Commission as they have another principal regulator),16 most student unions are registered charities (registered with and regulated by the Charity Commission). While both are required to comply with charity law and guidance, universities in England are not principally regulated by the Charity Commission (instead HEFCE is principle regulator of English universities).
23.Student unions are directly regulated by the Charity Commission, the Office of the Scottish Charity Regulator for Scotland, and the Charity Commission for Northern Ireland, although the approach taken by these regulators differs.
24.Universities have duties to protect freedom of speech, and this duty extends to securing freedom of speech on student union premises, even when these premises are off campus or owned by the student union. Universities are also required to have a code to promote free speech.
25.In contrast, student unions themselves assert that they are private bodies and have a right to refuse speakers or groups since they are not subject to the same obligations as public bodies.17 However, given the obligation on universities to secure free speech on university and student union premises, the student union constitutive documents, Memorandum of Understanding with the university, or conditions of the student union’s funding grant from their university, will often require the union to comply with the university’s free speech duty. Moreover, student union trustees are subject to duties under charity law which, given the educational objects of student unions, require them to ensure that debates are balanced, well run, ensure free speech and that risks are appropriately managed - in a manner akin to the free speech duty.
The role of the Office for Students in promoting freedom of speech
26.The OfS came into existence on 1 January 2018, acquiring limited responsibilities to enable it to establish its new regulatory framework. It will become operational on 1 April 2018, and take over regulatory responsibility of the sector in 2019. The OfS will oversee a register of higher education providers and will set conditions for registration. These will include a public interest governance condition: a commitment to work with the OfS through provision of relevant information and adhering to basic standards of transparent and autonomous institutional governance.
27.A Department for Education consultation on behalf of the OfS, seeking views on how the OfS will undertake its main functions, set out how it proposed to champion free speech in universities:
- To include freedom of speech in a standard list of “public interest principles” which would form part of the “public interest governance condition” applying to the “Approved categories.”18 Compliance with the public interest principle of securing freedom of speech would be monitored and non-compliance could result in “formal sanctions against the provider including monetary penalties, suspension from the register or deregistration.”19
- In addition to having codes of practice on freedom of speech, (which has been a requirement under the Education (No.2) Act 1986) higher education institutions would be required to contain provisions and practices to protect freedom of speech in their constitutional documents too.20
11 At present, the Equality Act 2010 does not extend to Northern Ireland. However, there is various similar anti-discrimination legislation in Northern Ireland. There is also an ‘equality’ and ‘good relations’ duty in s.75 of the Northern Ireland Act 1998 which requires public authorities to have due regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; between men and women generally; between persons with a disability and persons without; between persons with dependants and persons without.
12 Equality Act 2010, Part 2, Chapter 1, The Protected Characteristics
13 Equality Act 2010, Part 11, Chapter 1, Section 149, Public Sector Equality Duty
14 Counter-Terrorism and Security Act 2015, Part 5, Chapter 1, Section 26 (1)
15 HM Government, Prevent Duty Guidance: for higher education institutions in England and Wales, 12 March 2015, and HM Government, Prevent Duty Guidance: for higher education institutions in Scotland, 12 March 2015
16 In Wales, all universities are regulated directly by the Charity Commission. In Scotland, the Scottish Charity Regulator regulates all the universities in Scotland as charities. In Northern Ireland, all relevant organisations are required to apply for registration with no exceptions or exemptions and the Charity Commission for Northern Ireland (which was established under the Charities Act (Northern Ireland) 2008) is managing the registration of charities in stages.
17 While Section 43 of the Education (No. 2) Act 1986 does not apply directly to students’ unions, it applies indirectly as the duty requires institutions to issue and keep updated a code of practice outlining procedures to be followed for meetings that will take place on the institutions premises, including on student union premises.
18 The OfS will oversee a register of higher education providers and will have set conditions for registration. The conditions are varied between three broad categories that are based on the level of access to public funding: Registered basic, Approved and Approved fee cap. Approved providers are providers with designation for student support. See, Universities UK, Office for Students Regulatory Framework, 3 November 2017. The OfS was consulting on the list of principles that will make up this governance condition and freedom of speech was included in the proposed standard list of public interest principles in the consultation document launched in October 2017, see, Department for Education, Securing student success: risk based regulation for teaching excellence, social mobility and informed choice in higher education Government consultation on behalf of the Office for Students, 19 October 2017, p 33
19 Department for Education, Securing student success: risk based regulation for teaching excellence, social mobility and informed choice in higher education, Government consultation on behalf of the Office for Students, 19 October 2017, p 33
Published: 27 March 2018 by authority of the House of Commons and House of Lords