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From no-platforming to mass protests – where does the law sit on what is happening in our universities? Azeem Suterwalla reports
Free speech in universities, or, arguably, the lack thereof, is back in the spotlight. At the end of July, it was reported that the new Labour government was considering stopping the further commencement of the Higher Education (Freedom of Speech) Act 2023, so as to consider options, including its repeal. While the 2023 Act received Royal Assent on 11 May 2023, a number of its key provisions have not yet been brought into force. The 2023 Act had been, in large part, the product of the previous Conservative government’s concern that academics, students or visiting students, were increasingly being subjected to ‘no-platforming’, or ‘cancelling’. Since then, the issue of free speech at universities has arguably heightened, with a number of high-profile protests against the war in Gaza taking place on campuses across the UK.
The present situation raises issues, which, while they may appear inter-related, should be treated distinctly. On the one hand, the ability of universities to protect academic free speech is a vital one. The 2023 Act states that ‘academic freedom’ means the freedom within the law – (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions. On the other, and in theory, that right should not necessarily conflict with the ability of individuals to engage in lawful protest, be it in relation to the war in Gaza, or on other issues.
There are already a number of important legal obligations on universities to promote free speech, outside of the 2023 Act. First, the right to freedom of speech is a fundamental one provided for under the common law: see, for example, the decision of the High Court in R (Harry Miller) v The College of Policing and The Chief Constable of Humberside [2020] EWHC 225 (Admin) for a restatement of well-established principles. Second, s 43 of the Education (No.2) Act 1986 already provides a statutory obligation upon universities to ensure freedom of speech. And third, universities, by virtue of being public bodies subject to the Human Rights Act 1998, are required to comply with the Article 10 of the European Convention on Human Rights.
The afore-mentioned legal duties are enforceable by way of judicial review and an individual, or organisation, is already able to bring a claim alleging that a university is acting in breach of those duties. While damages would not be awarded as of right, were it to be shown that there had been a breach of Article 10 ECHR, a claimant would have a persuasive case for compensation under s 8 of the Human Rights Act.
The 2023 Act is intended to go further. If brought into force, it will require higher education providers to promote (rather than merely ‘secure’ as per s 43 of the 1986 Act) freedom of speech and academic freedom. The Act’s definition of academic freedom extends to ensuring that the individual exercising it does so without being at risk of being adversely affected. Being adversely affected is defined as the academic staff member losing their job or privileges at the provider, or a reduction in the likelihood of the individual securing promotion or a different job at the provider. Perhaps most notably, if brought into force, the 2023 Act creates a new statutory tort, such that an individual (which includes university staff, students and visiting speakers) can bring civil proceedings against a university or a student’s union, for breach of the duties of freedom of speech and academic freedom, which has caused them to sustain loss (pecuniary or non-pecuniary). However, a claim for damages can only be brought once the individual has pursued their complaint through the Office of Students or Office of the Independent Adjudicator for Higher Education complaints scheme. It is noteworthy that this restriction does not prevent an individual seeking an injunction.
The 2023 Act will also apply directly to student unions, not just universities, requiring them to take steps, that having particular regard to the importance of freedom of speech, are reasonably practicable for them to take in order to achieve the objective of freedom of speech within the law, including for university staff and visiting speakers. However, as a university is already obligated to ensure that a student union within it complies with the principles of free speech (see s 43(4) of the 1986 Act), it is unclear to what extent the 2023 Act would really make a difference. Whether the 2023 Act, if implemented, will lead universities going from a situation of alleged ‘no-platforming’ (and there is a great deal of debate as to the extent that is actually happening) to permitting any and all to address university audiences, despite the risks that poses in respect of hate speech or radicalisation, is clearly an open question. If student unions and/or universities are to operate under a new regime of fear of paying out compensation, will this not lead to them agreeing to free speech by those who may pose a significant risk of causing harm to others?
And what of the right to free speech of those who disagree with the views of those the new legislation is intended to protect? It is not difficult to conceive of circumstances where there will be a direct and controversial conflict between the views of a particular academic or visiting speaker exercising their ‘academic freedom’, as defined under the 2023 Act, and students wishing to exercise their freedom of speech to disagree with their views. While the Act obliges a university to ensure that the academic or speaker is, effectively, able to attend and give their talk, it is silent on how that talk is to be given, i.e. there is nothing in the Act which sheds light on the extent to which students are permitted to ‘disrupt’ that talk, in exercise of their right of freedom of speech. Perhaps it was felt that it was impossible to legislate for such scenarios and each case will have to be dealt with in its own way. The risk, however, is that where there had previously been ‘no-platforming’, going forwards there simply may be disruption at and within such events. It may be thought that, as difficult as that might be to manage, that represents a balance of competing rights.
As to lawful protest more generally, the High Court’s recent decisions relating to the student protests against the war in Gaza (including at Birmingham and Nottingham Universities) make clear that this right does not extend to ongoing encampments on university land. That is not altogether surprising, as the right to lawful protest cannot be equated with a right to occupy someone else’s property or land. And arguments made that the encampments should be permitted to remain because of the universities’ obligation (under the existing regime) to protect students’ freedom of speech have been rejected, because the law extends only to ‘taking such steps as are reasonably practicable to ensure that freedom of speech within the law is secured’. The limits of the obligation – i.e. steps that are reasonably practicable – is a feature which remains within the 2023 Act, and therefore even with the heightened duty to have particular regard to the importance of freedom of speech, it is difficult to see how the recent High Court decisions may have been decided differently had they been considering the 2023 Act. Whether the encampment protests continue, or similar such protests spring up in their place, displays the limits of the law. Whether students choose to continue to protest (with the issue then arising as to how they go about doing so) is a matter beyond the law, and will, ultimately, be resolved in the political sphere.
Azeem Suterwalla is a leading junior at Monckton Chambers. He specialises in public law, public procurement, competition and information law. He is a member of the Attorney General’s A Panel of Junior Counsel to the Crown.
Free speech in universities, or, arguably, the lack thereof, is back in the spotlight. At the end of July, it was reported that the new Labour government was considering stopping the further commencement of the Higher Education (Freedom of Speech) Act 2023, so as to consider options, including its repeal. While the 2023 Act received Royal Assent on 11 May 2023, a number of its key provisions have not yet been brought into force. The 2023 Act had been, in large part, the product of the previous Conservative government’s concern that academics, students or visiting students, were increasingly being subjected to ‘no-platforming’, or ‘cancelling’. Since then, the issue of free speech at universities has arguably heightened, with a number of high-profile protests against the war in Gaza taking place on campuses across the UK.
The present situation raises issues, which, while they may appear inter-related, should be treated distinctly. On the one hand, the ability of universities to protect academic free speech is a vital one. The 2023 Act states that ‘academic freedom’ means the freedom within the law – (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions. On the other, and in theory, that right should not necessarily conflict with the ability of individuals to engage in lawful protest, be it in relation to the war in Gaza, or on other issues.
There are already a number of important legal obligations on universities to promote free speech, outside of the 2023 Act. First, the right to freedom of speech is a fundamental one provided for under the common law: see, for example, the decision of the High Court in R (Harry Miller) v The College of Policing and The Chief Constable of Humberside [2020] EWHC 225 (Admin) for a restatement of well-established principles. Second, s 43 of the Education (No.2) Act 1986 already provides a statutory obligation upon universities to ensure freedom of speech. And third, universities, by virtue of being public bodies subject to the Human Rights Act 1998, are required to comply with the Article 10 of the European Convention on Human Rights.
The afore-mentioned legal duties are enforceable by way of judicial review and an individual, or organisation, is already able to bring a claim alleging that a university is acting in breach of those duties. While damages would not be awarded as of right, were it to be shown that there had been a breach of Article 10 ECHR, a claimant would have a persuasive case for compensation under s 8 of the Human Rights Act.
The 2023 Act is intended to go further. If brought into force, it will require higher education providers to promote (rather than merely ‘secure’ as per s 43 of the 1986 Act) freedom of speech and academic freedom. The Act’s definition of academic freedom extends to ensuring that the individual exercising it does so without being at risk of being adversely affected. Being adversely affected is defined as the academic staff member losing their job or privileges at the provider, or a reduction in the likelihood of the individual securing promotion or a different job at the provider. Perhaps most notably, if brought into force, the 2023 Act creates a new statutory tort, such that an individual (which includes university staff, students and visiting speakers) can bring civil proceedings against a university or a student’s union, for breach of the duties of freedom of speech and academic freedom, which has caused them to sustain loss (pecuniary or non-pecuniary). However, a claim for damages can only be brought once the individual has pursued their complaint through the Office of Students or Office of the Independent Adjudicator for Higher Education complaints scheme. It is noteworthy that this restriction does not prevent an individual seeking an injunction.
The 2023 Act will also apply directly to student unions, not just universities, requiring them to take steps, that having particular regard to the importance of freedom of speech, are reasonably practicable for them to take in order to achieve the objective of freedom of speech within the law, including for university staff and visiting speakers. However, as a university is already obligated to ensure that a student union within it complies with the principles of free speech (see s 43(4) of the 1986 Act), it is unclear to what extent the 2023 Act would really make a difference. Whether the 2023 Act, if implemented, will lead universities going from a situation of alleged ‘no-platforming’ (and there is a great deal of debate as to the extent that is actually happening) to permitting any and all to address university audiences, despite the risks that poses in respect of hate speech or radicalisation, is clearly an open question. If student unions and/or universities are to operate under a new regime of fear of paying out compensation, will this not lead to them agreeing to free speech by those who may pose a significant risk of causing harm to others?
And what of the right to free speech of those who disagree with the views of those the new legislation is intended to protect? It is not difficult to conceive of circumstances where there will be a direct and controversial conflict between the views of a particular academic or visiting speaker exercising their ‘academic freedom’, as defined under the 2023 Act, and students wishing to exercise their freedom of speech to disagree with their views. While the Act obliges a university to ensure that the academic or speaker is, effectively, able to attend and give their talk, it is silent on how that talk is to be given, i.e. there is nothing in the Act which sheds light on the extent to which students are permitted to ‘disrupt’ that talk, in exercise of their right of freedom of speech. Perhaps it was felt that it was impossible to legislate for such scenarios and each case will have to be dealt with in its own way. The risk, however, is that where there had previously been ‘no-platforming’, going forwards there simply may be disruption at and within such events. It may be thought that, as difficult as that might be to manage, that represents a balance of competing rights.
As to lawful protest more generally, the High Court’s recent decisions relating to the student protests against the war in Gaza (including at Birmingham and Nottingham Universities) make clear that this right does not extend to ongoing encampments on university land. That is not altogether surprising, as the right to lawful protest cannot be equated with a right to occupy someone else’s property or land. And arguments made that the encampments should be permitted to remain because of the universities’ obligation (under the existing regime) to protect students’ freedom of speech have been rejected, because the law extends only to ‘taking such steps as are reasonably practicable to ensure that freedom of speech within the law is secured’. The limits of the obligation – i.e. steps that are reasonably practicable – is a feature which remains within the 2023 Act, and therefore even with the heightened duty to have particular regard to the importance of freedom of speech, it is difficult to see how the recent High Court decisions may have been decided differently had they been considering the 2023 Act. Whether the encampment protests continue, or similar such protests spring up in their place, displays the limits of the law. Whether students choose to continue to protest (with the issue then arising as to how they go about doing so) is a matter beyond the law, and will, ultimately, be resolved in the political sphere.
From no-platforming to mass protests – where does the law sit on what is happening in our universities? Azeem Suterwalla reports
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