38.Although there is no wholesale censorship of debate at universities, there have been some instances where student led activities or student attitudes towards certain groups have impinged on others’ rights to freedom of expression or association (which are discussed in detail below). Apart from this, there are also other significant barriers in the current system.
39.Our student union survey results were largely reflective of the wider evidence we received on the specific factors that inhibit freedom of speech at universities. While the majority of student unions felt confident in inviting external speakers, others pointed to the following barriers:
These are discussed in detail below.
Box 5: No platforming policies
Individual student unions will democratically decide if they wish to have a no platform policy each year. According to the NUS, the purpose of a ‘no platform’ policy is to prevent individuals or groups known to hold racist or fascist views from speaking at student union events and to ensure that student union officers do not share a public platform with such individuals or groups.
Source: See, NUS’ No Platform Policy: Key information, February 2017
40.Accusations that individuals or groups have been “no platformed” are common. Ministerial announcements have suggested that student activity such as “no platforming” and “safe space” policies undermine freedom of speech at universities. However, there is considerable confusion around these terms and they are unhelpful in determining if freedom of speech has been interfered with. The NUS’ official “No Platform” policy is a “specific” and “narrow” policy listing only six organisations: the Al-Muhajiroun; British National Party (BNP); English Defence League (EDL); Hizb-ut-Tahir; Muslim Public Affairs Committee; and National Action. The inclusion of the above organisations in the official policy is generally non-contentious.
Box 6: Case studies: No platforming
Case study A: University of Sussex, November 2017
The Liberate to Debate society at the University of Sussex invited Mr Bill Etheridge, UKIP MEP, to speak at an event in November 2017. The Student Union required that his views should be challenged in a debate which would be chaired by an independent chair, given that he had made controversial statements in the past. Mr Etheridge refused to adhere to the conditions and withdrew from the event, claiming that he had been ‘no platformed.’
Frida Gustafsson’s (President of the Student Union at Sussex) account of the incident, given to the Committee, differed significantly from media reporting which stated that the society who had invited Mr Etheridge complained that the student union had “effectively no platformed” Mr Etheridge through imposing a “prohibitive” list of restrictions, which included having his speech approved by a panel in advance.42
Case Study B: University of Leeds, October 2017
The Liverpool Guild of Students told us that Peter Hitchens was invited by the Politics society in October 2017, and in line with the university’s code of practice on freedom of speech, he was asked to submit an outline of his speech. Peter Hitchens said he could not comply with the conditions and therefore did not speak at the event.43
41.The term “no platforming” is applied to a range of student actions other than the core NUS definition. It has been used to describe:
Not all the scenarios described above unduly interfere with freedom of expression. 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.
42.In our view, freedom of expression is unduly interfered with:
It is clear that, although not widespread, all these problems do occur and they should not be tolerated.
43.Our evidence suggests that incidents where freedom of expression has been restricted usually involve groups who are perceived as minorities, or as having views which some could consider to be offensive, but which are not necessarily unlawful; these could include pro- or anti-abortion views, issues of sexuality or gender, and matters concerning faith or atheism.
44.In some cases, there have been unacceptable incidents where freedom of speech has been restricted by student activities. Incidents which several witnesses or written submissions referred to include:
45.An event called “Abortion in Ireland” organised by the Oxford Students for Life society in November 2017 was disrupted by a protest organised by the Oxford Student Union Women’s Campaign. The protest was held inside the room and prevented the speakers from being heard for around 40 minutes of the event. Police were called and the event organisers were asked to move rooms twice before the event could proceed. Despite the disruptive nature of the protest, the Student Union published two statements in support of the protest the next day.50
46.This reaction by the University of Oxford’s student organisation contrasts with the condemnation issued by the Student Union at KCL following an event that was violently disrupted and cancelled on 5 March 2018.51 A written submission from KCL describes the incident (see box below):
Box 7: KCL Libertarian Society Event, 5 March 2018
The KCL Libertarian Society, a student society ratified by KCLSU [King’s College London Student Union], invited speakers Carl Benjamin and Dr Yaron Brook, Chairman of the Board of Directors of the Ayn Rand Institute, to debate ’Rand’s philosophy, ‘Objectivism’ on Monday 5 March at King’s Strand campus.
[ … ] the university and Students’ Union undertook their separate comprehensive risk assessments and [ … ] assessed this planned event as ‘high risk’ due to the reported controversial opinions of the contributors and potential for public protest.
King’s followed due process and informed KCLSU that additional conditions needed to be put in place in order for the event to go ahead. These included recording the speeches with our ‘lecture capture’ facility, enhanced security, limiting attendees to King’s and University of London students, and the presence of safe space marshals [ … ] A designated area was also identified for safe and peaceful protest.
The debate had been underway for around 30 minutes when a group of approximately 16–20 hooded and masked protesters stormed the front entrance of the Strand Campus building, jumped over the security barriers, ignited smoke bombs and forced their way into the Safra lecture theatre. In this process they knocked a security guard unconscious and he was taken to hospital. A number of other staff and students were injured during the violent protest [ … ].
Once they had gained entrance to the lecture theatre the protesters climbed onto the stage to interrupt proceedings, grabbing the microphone and dropping threatening notes around the room. Some media reports have suggested that the university closed the event down due to the protest. In fact the smoke bombs triggered the building’s fire detection systems, resulting in an evacuation of the whole building.
Source: Written submission from KCL (FSU00111)
47.It is commendable that both the Student Union and University issued a statement the next day condemning the behaviour of protestors.52 It is not clear how many of those involved in the violent protest were students but we are pleased to hear that KCL has committed to taking measures in accordance with the student disciplinary process if KCL students are found to be involved in violent protest. It should also be added that it is equally concerning if protestors were members of the public as universities need to be places for learning and debate. They should not be misused by members of the public.
48.We found the use of certain tactics in recent incidents such as the wearing of masks and hoodies or breaking into meetings, such as in the KCL incident, or intimidating filming of event attendees, as happened in the UCL event, totally unacceptable. Such tactics show that protestors are setting out to intimidate others with a view to restricting free speech.
49.The people behind the disruption at KCL are still unidentified, but some media reports have suggested that protestors belonged to a left-wing group and were protesting at the appearance of two “right-wing” speakers who had allegedly made inflammatory comments in the past. But the actions of such protestors are both paradoxical and very concerning, as is their desire to keep allegedly divisive speakers off university premises, they are creating an unsafe and intimidatory atmosphere for students at the university. While the incidents differed, we note the following points of concern:
50.While some level of peaceful protest should be allowed, the levels of disruption in the above incidents are unacceptable and contrary to the university’s obligation to secure freedom of speech within the law under the 1986 Act. They could also interfere with (the speakers’ and attendees’) Article 10 rights under the ECHR to “receive and impart information and ideas.” 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.
51.It is important to acknowledge that some groups can face significant prejudice and harassment in everyday life. Our transgender witnesses were very clear that the real risk is around the distress which could be caused by intemperate speech. Helen Belcher told us people should be able to explore and discuss ideas but:
“[ … ] there is the concept of respect. If you can do that respectfully, and sensitively to the audience, that is fine, but if you are simply going to turn around and demand that certain people should not exist, that they should not be permitted certain rights, or that rights should be taken away, it becomes slightly harder.
[ … ] It then becomes very difficult to exist, in many ways. When your identity is being challenged at a very fundamental level and you are being told that you should not have certain rights, that in itself becomes quite threatening. Those environments become unsafe; they become a threat.”53
52.Others told us that discussion of transgender issues were shut down by student activists who extend the original purpose of “no platforming” policies, (which was to prevent fascists from speaking at universities), to include individuals and feminists who take a critical view of trans politics.54 Greg Jackson on behalf of Citizen GO told us that “critical discussion of LGBT (Lesbian, gay, bisexual, transgender) issues is [ … ] perceived as an attack on people who identify as LGBT [ … ] students are routinely silenced/intimidated into silence by an [ … ] authoritarian ideology frequently found in students’ unions.”55 We heard evidence of attempts by students to no platform leading feminists and LGBT activists with a lengthy pedigree in campaigning for LGBT rights simply because they had defended the idea of women-only space or because they were alleged to have been transphobic because of misunderstandings about what had been said by them on a previous occasion or because they had engaged in critical debate about issues around feminism and trans politics.56
53.But the NUS and student unions argued that freedom of speech rights need to be balanced with freedom from harm, in that student unions need to promote a safe environment for students which is free from prejudice, discrimination, physical harm and verbal abuse.57 The Student Unions at the Universities of Kent, Warwick and Surrey argued that it is necessary to limit speakers who “cause harm through speech” to protect marginalised groups, such as trans people, who suffer from a significant amount of discrimination in society at large.58 We are concerned that such an approach is detrimental to free speech and could prevent certain debates and viewpoints being heard.
54.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.
Box 8: Safe space policies
‘Safe space’ policies are guidelines produced by student unions that aim to encourage an environment on campus free from harassment and fear. They seek to restrict the expression of certain views or words that can make some groups feel unsafe. Debates take place within specific guidelines to ensure that people do not feel threatened because of their gender, ethnicity or sexual orientation. Not all student unions have safe space policies.
55.Safe spaces aim to encourage an environment free from harassment and fear by restricting the expression of certain views or words that can make some groups feel unsafe.59 Not all student unions have safe space policies and those that do will operate differently in different contexts. Written evidence from the University of Cambridge states that at Cambridge, safe space policies include women, LGBT and BME (Black and minority ethnic) and disabled student networks or campaign groups and “the existence of these groups and campaigns plays an important role in aiding the retention and supporting the progression of under-represented groups.”60
56.While the intention behind safe spaces is understandable and whilst there must be opportunities for genuinely sensitive and confidential discussions in university settings, we received evidence which showed that safe space policies, when extended too far, can restrict the expression of groups with unpopular but legal views, or can restrict their related rights to freedom of association.61 Pro-life and humanist and secular groups appear to have been particularly affected by the student unions’ desire to build inclusive campuses free from harassment and fear. We were told about instances where these groups are faced with difficulties getting representation at their university’s freshers’ fayre or are subject to greater scrutiny from the students’ union during freshers’ week or have been banned entirely by the student union.62 Not being able to affiliate with the student union is problematic for societies as this means that the group is not able to access some of the university’s resources and organise events in the same way as affiliated societies. Humanist and secular societies spoke about an incident in 2014 when student union representatives at the London School of Economics, “tore down display material” put up by the Atheist Secular and Humanist society and further compelled them to leave the fayre.63
57.They also face problems in arranging for external speakers. The Alliance of Pro-Life Students said that “pro-life societies are often given undue burden to host events” and are “subject to mediations to which other societies are not,”64 while humanist groups said that student unions and universities “repeatedly shut down expressive conduct deemed by them to be wrong, offensive, or harmful, particularly with regards to criticism of religious beliefs.”65
58.Pro-life and humanist groups told us that student unions were making arbitrary decisions about the views to which students should be exposed.66 The Alliance of Pro-Life Students said that “many student unions do not have very clear, or very coherent, democratic policies in place, which means that voting pro-choice, or no platforming, or safe space policies into official union policy is surprisingly easy, given the restrictions they place on freedom of speech. If unions had better guidelines for democratic policies, and their union officials faced actual sanctions for disregarding freedom of speech, the union, and therefore the university environments, would become both more democratic and more open to diverse viewpoints.”67 Andrew Copson from Humanists UK said that in “almost every case” in which material produced by their society was banned or censored by a student union, was down to “uneven application of the rules that the student union thought it was applying at the time.”68
59.While we were preparing this report, we learned that Bristol Student Union is considering a motion to “Prevent Future Trans-Exclusionary Radical Feminist (TERF) Groups from Holding Events at the University”. This is an example of the regulatory complexity in this area. The student union at the University of Bristol confirmed that whilst student bodies can, and do, adopt motions, these can only be implemented by the student union charity trustees to the extent that they are compatible with the law, including charity law. The University of Bristol itself is obliged to secure freedom of speech on university premises, and to take relevant action if free speech is being unduly curtailed.
60.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.
61.Other than the student led activity we found there are other significant barriers in the current system, whether barriers inherent in the actual system, barriers through over-reaching guidance, or barriers caused by a misperception of what is required. There is a variety of reasons for this:
These are discussed in detail below.
62.While the Government has been concerned about the perceived decline of freedom of speech in universities, the introduction of the Prevent duty in higher education settings has made exercising freedom of speech rights more problematic.
Box 9: The Prevent Duty
The 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 requires that specified authorities, including higher education bodies in England, Wales and Scotland, have ‘due regard to the need to prevent people from being drawn into terrorism.’69 The Prevent duty is underpinned by specific statutory guidance for higher education institutions.70
63.The Prevent duty guidance for higher education institutions states:
“[ … ] when deciding whether or not to host a particular speaker, RHEBs [relevant higher education bodies] 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 [ … ]. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.”71
64.This appears to counter the institution’s duty to secure freedom of speech by requiring it not to proceed if there is any doubt about the ability to fully mitigate any risk associated with hosting “extremist” speakers. As Helen Mountfield QC told us, this encourages universities to have an “overanxious approach to stopping speech for fear that it might be an indicator of a view”72 even where such speech is not unlawful.
65.Universities UK told us that the Government’s Prevent policy has created “a grey area in relation to free speech which did not previously exist,”73 while student unions said that a “lack of clarity regarding which views might be considered extremist, and the lengthy bureaucracy required to record and investigate events–particularly those which involve external speakers–have resulted in both students and staff self-censoring.”74
66.Several witnesses expressed concerns about potential lack of clarity around the use of the term “extremism” (in the Prevent duty guidance for specified authorities). The Government has defined “extremism” as “vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs.”75 In our report on Counter-Extremism, we raised concerns about the lack of consensus on the definition of what constitutes “extremism,” and the likelihood of this causing particular problems in the university setting due to the importance of freedom of speech.76
67.Other terminology in the Prevent duty guidance which is problematic for securing freedom of speech is the inclusion of the term “non-violent extremism” which is seen as subjective and open to interpretation.77 Some groups expressed concerns that these terms were so broad that they captured those with unpopular opinions or views that were different from the mainstream. For example, written submissions from organisations like Faith to Faithless and Christian Action Research and Education said that the current definitions were being misapplied to them instead of applying to groups or individuals that could draw people into terrorism.78
68.The recent judgment in Salman Butt v. Secretary of State for the Home Department has brought some clarity.79 First, it has been made clear that the guidance is restricted to views which actively risk drawing others into terrorism and that: “If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it.” Second, it has also made clear that despite the references to the need to “fully mitigate” risks or cancel the event within the guidance, universities in fact have to balance their duties under the Prevent guidance with their duty to secure freedom of speech.
69.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.
70.The Government told us it is not aware of any events being cancelled following the introduction of the Prevent duty and this was a key indicator to show that the duty had not inhibited freedom of speech.80According to HEFCE’s monitoring of the Prevent duty, institutions are adequately balancing the Prevent duty with the duty to ensure freedom of speech. For the year 2015–16, HEFCE found that only a small number of events and external speakers were referred to the highest level of approval required by the university’s processes.81 Professor Stephen Greer of Bristol University told us “[t]he Prevent duty is not about cancelling events at all, but about evaluating and managing risk and threats to health and safety.”82
71.However, we received a large amount of evidence in which it was suggested that it is difficult to measure the impact of Prevent on freedom of speech in universities and whether it is having a “chilling effect.”83 We were told that students are dissuaded from setting up events both because of the increased levels of bureaucracy and out of fear of being referred under Prevent for mistakenly inviting ‘extremist’ speakers.84 Northumbria Student Union told us “ [ … ] since the advent of Prevent [ … ] there is an increased bureaucratic process required to vet speakers to satisfy all parties [ … ] the level of scrutiny the Union must bring has served to dissuade student groups from the effort of inviting speakers or they have thought to invite ‘safer’ speakers.” Paul Bowen QC told the Committee: “students themselves felt constrained from even inviting certain speakers because they were afraid of being labelled as extremist themselves by inviting someone who might be seen as extremist.”85
72.The Prevent duty may have a wider effect than simply deterring student unions from inviting individual speakers. Written submissions from the Student Union at the University of Oxford and the NUS Black Students’ Campaign state that students, particularly Muslim students, have been dissuaded from becoming involved in student activism out of fear of being reported under the Prevent duty for expressing opinions on certain issues.86 Frida Gustaffson told us that some students were even afraid of going to the campus prayer room “because they have been asked in interviews how many times a day they pray—as if that has anything to do with how likely you are to fall for extremism.”87 When asked about the impact of the Prevent duty in universities, Patrick Kilduff, President of the Student Association at the University of Edinburgh, said:
“That is the trouble: we can tell you that we have had 5,462 events in the past year, but I cannot tell you all the events that we have not had. I can only tell you anecdotally that we have a number of students from BME backgrounds, Jewish backgrounds and especially Muslim backgrounds who come to us with concerns about hosting events or taking part in certain things because there are such grey areas around the policy, its implementation, our duty to enforce it and what the ramifications could be in the university and in civil society.”88
73.There is a reason for Prevent. As the Minister for Security said:
“We know that there are and have been terrorist radicalisers and recruiters, and terrorists active on campus, who have recruited young men and women into terrorism. We know that from some convictions. I can give an example of someone who was head of Society X; one is currently serving time in prison for a terrorist plot to kill police and soldiers. He was head of one society at the university and engaged busily in more than just espousing his beliefs, so we know that it is a recruiting ground. We have intelligence to suggest that young minds are targeted in schools and in other education”.89
74.Professor Steven Greer told us “terrorist organisations target student societies, and target students because they are students.”90 The Government told us that Prevent is about safeguarding vulnerable people rather than pursuing terrorist threats.91 But the Prevent programme will be counterproductive if it provokes mistrust.
75.In the Committee’s 2016 report on Counter-Extremism, the Committee found that “it is very easy for dangerous myths to be spread about Prevent” and recommended that the “only way for these to be dispelled is for there to be rigorous and transparent reporting about the operation of the Prevent duty.”92 We welcome the fact that the Government has now published figures about individuals referred to and supported through the Prevent Programme in the period between April 2015 to March 2016.93 Nonetheless in the Higher Education sector, Prevent continues to operate with limited transparency.
76.HEFCE receives returns from universities on their implementation of the Prevent duty. While HEFCE publishes a high-level report about providers’ compliance with the duty, returns from individual institutions are not published and we were told by the Minister of State for Security and Economic Crime, Rt Hon Ben Wallace MP, that the reports are not even seen by the Home Office. The Information Commissioner has upheld a decision not to release them on national security grounds.
77.In oral evidence Sir Michael Barber told us that while he did not expect to make immediate changes:
“[ … ] as a general point we want to come up with things in a spirit of transparency. Some of the information in the Prevent submissions that come in might be quite sensitive and relate to individuals, to people on the Channel programme or to student welfare referrals and so on. There may be some bits that you would not want to make public. There are also potential reputational issues. I think that we will talk again about what could or might be published from those, rather than necessarily adhering to not publishing them at all. We have not made a decision on that. The OfS will look into if whether some parts of the reports could be published.”94
78.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.
79.The involvement of two regulators in England95 (the Higher Education Funding Council for England for universities and the Charity Commission for student unions) as well as the sometimes-competing differences in legal duties applicable to universities and student unions make the regulatory environment within which universities operate complex. As we have seen, the positive duty to secure freedom of speech within the law which bites on universities does not apply to student unions in the same way. Student unions are expected to adhere to Charity Commission guidance. If the Commission takes a heavy-handed approach, there is a risk that universities and student unions will be pulled in opposite directions.
80.The Charity Commission’s regulation of student unions and its impact on the freedom of speech of student union officers emerged as a significant issue over the course of this inquiry.96 The Commission’s guidance relating to political activities, campaigning and inviting external speakers is particularly problematic. Much of this advice is generic, but the Charity Commission’s Operational Guidance on student unions causes problems. This states that a student union “should not comment publicly on issues which do not affect the welfare of students as students.”97 It lists commenting on the treatment of political prisoners in a foreign country, planning proposals for new roads or motorways which have no direct effect on the university campus or the students and campaigns to outlaw the killing of whales as such issues.98 Whilst we understand from a legal opinion given to the NUS that it is possible to take the view that this guidance is intended to be solely directed to public comment by trustees or other organs of the union with the power to bind the union to action,99 there is confusion around what student unions feel they can comment on.100
81.Research conducted by Simon Perfect and Professor Alison Scott Baumann which interviewed 26 people with insight into student unions including Chief Executive Officers, found that some student union officers felt caught in a bind as they are elected by students to represent them on the issues students are passionate about, but as charity trustees they cannot make public statements on issues of politics that do not affect students ‘as students’.101 Commenting on the Commission’s approach to regulation of student unions, Professor Adam Tickell, Vice-Chancellor at the University of Sussex, said that:
“For me, some of the expectations of the Charity Commission miss a really important point, which is that many students get involved in politics in student unions because it is part of their political formation. If you inhibit people’s political formation, it is to the detriment of our democracy.”102
82.The Charity Commission’s guidance issued in 2013, “Protecting charities from harm,” also encourages unions to take a risk averse approach when hosting events involving “controversial”103 external speakers:
“Under charity law, all charities must work for the public benefit and must act to avoid damage to the charity’s reputation, assets and associated individuals. All charities, including higher education institutions, debating societies and student unions can be challenged on whether they have given due consideration to the public benefit and associated risks when they, or one of their affiliated societies, invite controversial or extremist speakers to address students.”104
There are some parallels to the Prevent duty guidance for higher education institutions, in that it cautions student unions to manage risks associated with giving a “platform to speakers who condone terrorism or other illegal activity, or who express extremist views.”105 But, in contrast to the Prevent duty, it does not “give enough weight or express recognition to the specific context of universities and the s.43 statutory duty on universities” to secure free speech within the law on the university’s premises (including the extended scope of s.43 to student union premises).106 Gary Attle from Mills and Reeve LLP said that the Commission’s guidance:
“[ … ] contrasts with the way in which the Counter-Terrorism & Security Act 2015 includes an express ‘counterweight’ to the requirement to have ‘due regard’ to the statutory Prevent duty by requiring relevant bodies to have ‘particular regard’ to the s.43 statutory duty to secure freedom of speech in universities.”107
83.Witnesses were concerned about the Charity Commission’s approach to regulating student unions like other charities. Frida Gustafsson, President of the Student Union at the University of Sussex, said:
“[ … ] we are not like any other charities out there. For example, taking a risk-based approach might be useful in making sure that our platform is not misused by political groups—but its [the Charity Commission’s] idea of risk is controversial debates, which I would say are the very foundation of our existence. It should be helping us and enabling us to do that well and enabling everyone’s free speech and right to feel not discriminated against or harassed, rather than limiting us in doing that.”108
Mr Jacob Rees Mogg MP told us that as a trustee of the Oxford Union, he was more concerned about the Charity Commission “saying that it is against the charitable objectives to invite somebody with controversial views” than students objecting to controversial speakers.109 Mr Rees-Mogg further disagreed with the Commission’s requirement for student unions to “have appropriate policies and procedures in place and ensure they take reasonable steps to protect their charity”110 when organising events which are “controversial.” Mr Rees-Mogg said that not only is developing such policies time consuming but that in his view: “ it is a matter of routine law that, if we invite people who break the law, we should certainly get into trouble, but if we invite people, whatever their views, who do not break the law, I have never really thought that it was the business of the Charity Commission. But we are worried that, for our charitable status, we have to go along with the requirements that it makes.”111
84.In oral evidence, Patrick Kilduff, President of the Student Association at the University of Edinburgh, told us that the Office of the Scottish Charity Regulator (OSCR) had not imparted any specific guidance on “what student unions can or cannot do with speakers” adding that this was to their benefit.112 According to the NUS, the Charity Commission for England and Wales has been perceived to take a more restrictive approach in their regulation of student unions in respect of political activities and campaigning in comparison to the other regulators in the UK, the OSCR and Charity Commission for Northern Ireland (CCNI).113
85.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. We make further recommendations about this below.
86.There were also concerns about the Charity Commission’s role in dealing with complaints against student unions who host controversial speakers. The Charity Commission told us that over the last two financial years they had investigated only seven cases at six student unions.114 In some instances the investigations were prompted due to the student union allegedly hosting speakers with “controversial” views which could be unlawful under the Equality Act. We understand that the Charity Commission may be impelled to act if other regulators or universities themselves do not. We also accept that in some cases a Charity Commission inquiry could be more appropriate than, for example, a police investigation. Nonetheless, 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.
87.Some universities’ codes of practice on freedom of speech appear to inhibit free speech within the law rather than enhance it. While many policies are excellent, some are unclear, difficult to navigate, or impose bureaucratic hurdles which could deter students from holding events and inviting external speakers. Ben Ryan from Theos Think Tank told us that clubs and societies felt that “burdens placed upon them to book speakers, comply with the rules or work with student unions exceed what they should be, and that this has caused a chilling effect on their ability to operate as healthy societies within a university.”115
88.Again, we wanted to make sure our findings were evidence-based rather than anecdotal. We commissioned research from HEPI who analysed a sample of policies from UK higher education institutions to determine whether they assist free speech or are likely to frustrate it.116 HEPI’s analysis shows that codes of practice across the higher education sector vary in format, style and contents. Length of the policies range from three pages to forty-seven pages, while the timescales required by the universities to assess whether an event should go ahead as planned or not range from five days to one month.117 The analysis further revealed that while some codes of practice and associated procedures relating to external speakers were very accessible and made it easy for event organisers to arrange events, the majority left it up to the reader to find the related polices, codes, templates or forms required to arrange an event.118 Without proper listing of related procedures, and active internet links it is often difficult for potential event organisers to find the documents they need swiftly and easily.119
89.It is also clear that universities have different views on the reasons for their codes of practice. Our research from HEPI explored this in detail:
Some institutions have chosen to explain the purpose of their free speech documents in the main body of the text. Of those that have done so, some see it as positively promoting not just free but also respectable speech, while others see it as a necessary compromise between two sets of competing duties. The universities clearly using their codes of practice to bolster their commitment to free speech are:
Other universities have nevertheless assumed a more resigned tone and have chosen to include in their codes of practice an acknowledgement of the dilemma facing them, having obligations to protect freedom of speech on the one hand, yet to prevent against the promotion of extremist views on the other. These universities explicitly refer to their need to balance these competing duties. For example:
Such admissions of compromise and balance serve to warn readers of the complexity of the policies that follow and act almost as a disclaimer for the processes and procedures the universities have opted to implement.120
90.Liam Kelly, a student from the University of Leeds, made clear the confusion which can arise if a policy is not clear. He noted that his institution’s “Protocol on Freedom of Expression” states that the university will tolerate a wide range of views, including those that are unpopular, controversial and provocative, providing that the event will not give “rise to an environment in which people will experience–or could reasonably fear–harassment, intimidation, verbal abuse or violence [ … ]”.121 He considered that the lack of guidance from the university on what constitutes “harassment” was problematic as discussion of controversial ideas could lead to students fearing harassment which in turn suppressed legitimate freedom of expression.122
91.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.
92.Some level of process is needed for inviting speakers to universities. Leaving aside the desire to ensure that institutions are not facilitating speakers with illegal views, universities and student unions have to consider whether speakers may give rise to protests and so require additional security.
93.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.
94.We heard that in some cases where there is strong opposition to certain speakers, arranging additional security can be burdensome for some institutions. We were told SOAS spent £6,000 on security for a speech by the Israeli ambassador to Britain, Mark Regev, but that the university considered it important to ensure the event could take place.123 But security should not be a barrier. Joanne Midgley of the University of the West of England told us that for a campus university:
“[ … ] we have security on site 24 hours a day, seven days a week. More importantly, it is a critical part of the university experience for our students to be exposed to views that differ from theirs and to have the opportunity to discuss and debate them. So certainly, on the basis of the cost of security, we will not be seeking to reduce the number of external speakers whom we bring on site.”124
95.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.
42 Q37 [Frida Gustafsson, University of Sussex], and, Sussex University free speech society told to submit guest’s speech for approval in case it violates ‘safe space’ policy, The Telegraph, 20 October 2017
44 NUS ‘no platform’ policy goes ‘too far’ and threatens free speech, Peter Tatchell warns, The Independent, 25 April 2016
45 Q31 [Alexandra Tate, President, Reproductive and Sexual Health Society, King’s College London]; Barred academic Heather Brunskell-Evans warns of cowardice over trans issues, The Times, 23 November 2017
46 Baroness Deech (FSU0003); The UK Lawyers for Israel (FSU0033); The Board of Deputies of British Jews (FSU0035); The Academic Friends of Israel (FSU0071); The Union of Jewish Students (UJS) (FSU0080); Q48 [Wes Streeting MP]
47 The UK Lawyers for Israel (FSU0033); The Board of Deputies of British Jews (FSU0035); The Union of Jewish Students (UJS) (FSU0080); and The Academic Friends of Israel (FSU0071).
48 According to the written submission from Free Speech on Israel, two further events at the University of East London and Middlesex University that Richard Falk was due to speak at were cancelled. However, other reports have suggested that the events were cancelled for different reasons. UEL reportedly cancelled the event because procedures, including security paperwork, had not been adequately followed, while Middlesex University cancelled because of safety concerns, see UK Universities cancel talks by co-author of UN report accusing Israeli of apartheid regime, over security concerns, The Independent, 24 March 2017; Free Speech on Israel (FSU0030); and the Centre for Palestine Studies (FSU0090). See also Q42, in which Baroness Amos said that two or three events in the last year had been disrupted by pro-Israel protestors, although it was not clear whether these events were disrupted by students or members of the public.
49 Humanists UK and Humanist Students (FSU0019); Faith to Faithless (FSU0020); The Council of Ex Muslims of Britain (FSU0021); The National Secular Society (FSU0022); and the Index on Censorship (FSU0043)
50 Oxford Students for Life (FSU0018); Mr Michael Wee (FSU0042); and The Alliance of Pro-Life Students (FSU0063)
51 King’s College London Students’ Union, Libertarian society event, 6 March 2018
52 King’s College London Students’ Union, Libertarian society event, 6 March 2018, and King’s College London, Statement regarding Libertarian Society event, 6 March 2018
54 Index on Censorship (FSU0043) which states that “no platforming has been extended to other speakers who unions find offensive […] The student-led practice of no-platforming and its extension beyond fascist and racist groups and speakers is one of the highly mediatised reasons as to how free speech is being suppressed on campus.” See, the Universities and Colleges Christian Fellowship (UCCF) (FSU0039). See also an open letter signed by Peter Tatchell, Julie Bindel and Germain Greer in, We cannot allow censorship and silencing of individuals, The Guardian, 15 February 2015
57 York University Student Union (FSU0044); the University of Surrey Students’ Union (FSU0026); Warwick Students’ Union (FSU0094); and the University of Kent’s Student Union (FSU0040)
58 See, Warwick Students’ Union (FSU0094) which states “In the instance of speakers with problematic viewpoints (e.g. racist organisations, proponents of eugenics or Trans-Exclusionary Radical Feminists, who argue that Trans women do not have the right to be recognised or even exist as women), there exists a significant risk to marginalised groups, and both SUs and Universities have a responsibility to mitigate against this,” and written evidence from the University of Kent’s Student Union (FSU0040) which states “Trans women are subject to disproportionate violence and are at a high risk of dying by suicide. Around 40% of trans youth have attempted suicide. For these reasons, it is important to protect these students from words and people who attack their self-worth.”
61 Q31 [Alexandra Tate, President of the Reproductive and Sexual Health Society Kings College London];Baroness Ruth Deech (FSU0003); Dr Kevin Vaughan (FSU0004); Prebendary Peter Bannister (FSU0008)
62 See, written evidence from Miss Josephine Jackson, student at the University of Oxford in 2016 (FSU0016) which refers to a motion which Oxford University Student Union made in May 2014. The motion read: “OUSU resolve Never to platform any group or organisation which provides directional advice around abortion or explicitly stands against women’s right to choose.”; See Life (FSU0058) which discusses additional scrutiny by student union officers of Life Matters stalls at the freshers fayres of Brunel, Liverpool, and Bolton universities in 2017 and at Kings College London in 2018. See also, The Alliance of Pro-Life Students (FSU0063) and The Christian Action Research & Education (CARE) (FSU0045); Miss Rebecca Short, and Alliance of Pro-Life Students (FSU0076) which all mention the student union at Strathclyde University barring a group called ‘Strathclyde Life Action’ from forming a pro-life society. See also, The Alliance of Pro-Life Students (FSU0063) which mentions that in November 2017, the Protection of Unborn People Society at Glasgow University were denied affiliation with the student union because their aims did “did not align” with the ethos of the student union.
64 The Alliance of Pro-Life Students (FSU0063) which states that the KCL Life Ethics Society has to go through additional measures to gain approval for events and that “ two union officers [are] present at every event to ensure no safe space violation occurs.”
66 Miss Rebecca Short, Alliance of Pro-Life Students (FSU0076); Margaret Akers (FSU0065); Humanists UK and Humanist Students (FSU0019) which states that misinterpretation and misapplication of the PSED results in student unions censoring criticism or ridicule of a religion or belief, or of its adherents.
69 The Counterterrorism and Security Act 2015 states that ‘A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism.’ Schedule 6 of the Act lists ‘specified authorities’, and includes schools, most further and higher education bodies, NHS trusts and foundation trusts, local authorities, prisons, probation service providers, and the police.
70 HM Government, Prevent Duty Guidance: for higher education institutions in England and Wales, 12 March 2015, HM Government, Prevent Duty Guidance: for higher education institutions in Scotland, 12 March 2015
71 HM Government, Prevent Duty Guidance: for higher education institutions in England and Wales, 12 March 2015
72 Q26 [Helen Mountfield QC]. Universities UK (FSU0010) and Legal opinion for the National Union of Students , Christopher McCall, Maitland Chambers, and Raj Desai, Matrix Chambers, para 127
74 Edinburgh University Students’ Association (FSU0061). Also, see other evidence which criticised the broad definition of extremism: written evidence from the University of Sheffield Students’ Union (FSU0041); The University of Huddersfield Students’ Union (FSU0073); The Union of Brunel Students (FSU0032); Dr Kevin Vaughan (FSU0004); Ian Cram Professor of Comparative Constitutional Law, Leeds University (FSU0005)
75 HM Government, Counter-Extremism Strategy, October 2015, p 9. The same definition is adopted in the Prevent duty guidance for specified authorities in England and Wales, and in the separate guidance for specified authorities in Scotland.
76 Joint Committee on Human Rights, Second Report of Session 2016–17, Counter-Extremism, HL Paper 39/HC 105, p 30
77 Universities UK (FSU0010). Also, Professor Steven Greer, whose recent research suggested that the Prevent duty was compatible with human rights law, accepted that the inclusion of the term non-violent extremism in the guidance was problematic, see, Counter-Terrorist Law in British Universities: A Review of the “Prevent” Debate, Public Law, Vol. 2018, No. January, 01.01.2018, p 84–105, January 2017, p 85
79 See. R (Salman Butt) v Secretary of State for the Home Department  EWHC 1930 (Admin), para 30
80 See Department for Education and the Home Office (FSU0023) which states that another key indicator of whether the duty has impacted freedom of speech in universities includes that no higher education institution came forward in a judicial review into the lawfulness of the Prevent duty, to express concerns about difficulties in securing freedom of speech because of the duty. See also, Q55 (Professor Steven Greer, University of Bristol).
81 HEFCE, Analysis of Prevent annual reports from higher education providers for activity in 2015–16, 2017, p 30, states that in the year 2015–16, 147 events and 190 speakers were referred to the highest levels of approval required by the provider’s procedure. HEFCE’s submission to us states that “while providers are able to assure themselves that policies are being implemented in a way that is compatible with freedom of speech, it is more difficult to rule out the possibility that potential events or external speakers may have been deterred by the existence of these policies. However, we have no evidence that this is the case,” see written evidence from the Higher Education Funding Council for England (FSU0055).
84 Northumbria Students’ Union (FSU0013); The University of Edinburgh’s Student Association (FSU0061); Heriot-Watt University Student Union Executive Committee (FSU0024); and the University of Sussex Islamic society (FSU0083).
85 Paul Bowen QC: Informal meeting, 6 December 2017
92 Joint Committee on Human Rights, Second Report of Session 2016–17, Counter-Extremism, HL Paper 39/HC 105, para 50
93 Home Office, Individuals referred to and supported through the Prevent Programme, April 2015 to March 2016, 9 November 2017
95 For Scotland, Northern Ireland and Wales, see Chapter two.
96 See the University of Surrey Students’ Union (FSU0026) which says that the Charity Commission and the Prevent duty conflict most with the duty to secure freedom of speech, and, Jim Dickinson, Chief of Staff, UEA Students’ Union (FSU0002) which refers to “extensive guidance on student unions and universities to manage the risks associated with external speakers.” See also, Q13 [Alyaa Ebbiary]; Peter Baran, General Manager SOAS Students’ Union (FSU0048); See Q21 [Ben Ryan Theos Think Tank]; Q45 [Frida Gustafsson, University of Sussex]; Simon Perfect and Professor Alison Scott-Baumann, SOAS (FSU0074)
97 Charity Commission for England and Wales, Operational Guidance 48: Students’ unions - B3 2, Political activities and campaigning, Commenting on public issues, para. 2.2
98 Charity Commission for England and Wales, Operational Guidance OG48 B3, 2. Political Activities and Campaigning, 2.2. Commenting on Public Issues, 2001
99 Legal opinion for the National Union of Students, Christopher McCall, Maitland Chambers, and Raj Desai, Matrix Chambers, p 11
100 See Q21 [Andrew Copson, Humanists UK and Ben Ryan Theos Think Tank]; and Q29 where Helen Mountfield QC said that, “The Charity Commission has guidance for student unions that says that offices of student unions should not comment publicly on issues that do not affect the welfare of students. Again, I do not think that is right [...] the main charitable object of most student unions is to promote education and the interests of students. It depends on the precise deeds setting them up, but most would also say that they promote or provide a platform for education and debate of controversial ideas. The Charity Commission’s view is that that expression of opinion goes beyond the student union’s charitable objects and I think that rather depends on the way in which the opinion is presented. I think it goes too far and may suppress speech that is actually lawful and within the student union’s charitable objects;” and Q48 [Wes Streeting MP]; and further supplementary written evidence from Simon Perfect, and Professor Alison Scott-Baumann [FSU0099] which said “some officers wanted to comment on ‘political’ issues (such as government austerity measures), which they felt their students cared about, but refrained from doing so to adhere to the charity rules.”
103 See, Charity Commission for England and Wales, Compliance toolkit: Protecting Charities from hard. Protecting Charities from Harm, Chapter 5: Protecting Charities from abuse for extremist purposes, 2013, which states that “The trustees must be able to show that an activity is in furtherance of the charity’s purposes. Even if this can be shown, expressing or promoting extreme, partisan or controversial views on a particular issue as part of that activity may compromise the charity’s integrity, purposes or public trust and confidence in it. It may pose or result in risks to the charity’s operations and other activities, or safety of its staff and volunteers…”
104 Charity Commission for England and Wales, Compliance Toolkit: Protecting Charities from Harm, Chapter 5: Protecting Charities from abuse for extremist purposes, p 25
105 See, Charity Commission for England and Wales, Compliance toolkit: Protecting Charities from hard. Protecting Charities from Harm, Chapter 5: Protecting Charities from abuse for extremist purposes, 2013, p 16
109 See, Q84 [Mr Jacob Rees-Mogg MP], “I think that the students like pushing the boundaries of freedom of speech but that other places try to stop it.”
110 Charity Commission for England and Wales, Compliance toolkit: Protecting Charities from hard. Protecting Charities from Harm, Chapter 5: Protecting Charities from abuse for extremist purposes, 2013, p 11
115 See Q13 [Ben Ryan from Theos Think Tank]. Yusuf Hassan from FOSIS said “As an Islamic society president you have to do the amount of bureaucracy required of a part-time job just to sustain the society. As an Islamic society, you have to fill in an excessive number of forms.”
116 HEPI analysed 20 higher education institution’s codes of practice on freedom of speech. The vast majority of these were in England and Wales as it is in these jurisdictions that the requirement to have a code applies. The University of Edinburgh has a policy on speakers and events, and so it was included in the sample. It should also be noted that most universities have chosen to entitle their free speech policies as a ‘code of practice’, but some institutions have different names. See, Higher Education Policy Institute, An analysis of UK university free speech policies prepared for the Joint Committee for Human Rights, Dr Diana Beech, Director of Policy and Advocacy, Higher Education Policy Institute, 9 February 2018
117 HEPI’s analysis states that longer policy documents are not necessarily more arduous or complicated, but tend to contain additional material of assistance to event organisers, including flowcharts, relevant legislation and sample application forms, while the inclusion of process flowcharts can help event organisers to visualise what is required of them in a step-by-step way, See, Higher Education Policy Institute, An analysis of UK university free speech policies prepared for the Joint Committee for Human Rights, Dr Diana Beech, Director of Policy and Advocacy, Higher Education Policy Institute, 9 February 2018, p 35
118 Higher Education Policy Institute, An analysis of UK university free speech policies prepared for the Joint Committee for Human Rights, Dr Diana Beech, Director of Policy and Advocacy, Higher Education Policy Institute, 9 February 2018, p 20
119 Higher Education Policy Institute, An analysis of UK university free speech policies prepared for the Joint Committee for Human Rights, Dr Diana Beech, Director of Policy and Advocacy, Higher Education Policy Institute, 9 February 2018, p 19
120 Higher Education Policy Institute, An analysis of UK university free speech policies prepared for the Joint Committee for Human Rights, Dr Diana Beech, Director of Policy and Advocacy, Higher Education Policy Institute, 9 February 2018, p 15
Published: 27 March 2018 by authority of the House of Commons and House of Lords