In the first of a series of articles, James Murray considers the way in which academics are protected by law to promote controversial and often politically sensitive ideas and theories.
But where is the line drawn between the exercise of Academic Freedom of Speech and the general right of expression available to everyone? How, in the digital age of social media and instant communication, can legitimate academic research be distinguished from material that may not conform to the standards of intellectual rigour that academic protection requires?
Universities are required to uphold the principle of Academic Freedom of Speech. As James Murray explains, some recent high-profile cases show that this can be a challenging duty to discharge in light of other, potentially conflicting, legal obligations.
The “chilling effect” of threats to freedom of speech in universities
During the course of this year there have been several high profile cases – most recently involving Dr Jordan Peterson – that have led some to argue that Academic Freedom of Speech is under threat in the UK. This is an argument which matters. Ideas which challenge the prevailing orthodoxies of society, and suffer for it, can change the way we look at the universe – one need only think of Galileo, Isaac Newton or Charles Darwin.
The House of Commons/House of Lords Joint Committee on Human Rights has published a report which suggests phenomena such as trigger warnings, safe spaces, and no-platforming could also be a threat in that they have a “chilling effect” on freedom of speech in universities.
One side of the debate assert that academics must have absolute freedom to challenge orthodoxies and put forward unpopular or offensive views. The other side counter that some topics are simply so toxic that discussion of them should not be allowed, even in the university environment.
These threats to their freedom have led the academy to reflect deeply upon what Academic Freedom of Speech means, when and to whom it applies, and what the limits of it are. It is important to clarify here that we are talking about a specialised subordinate of the more general right to freedom of expression and one which applies to small – but vital – subset of society when operating in their professional capacity as academics. It does not follow that if an academic is not entitled to this special level of protection that they are being silenced as a citizen – how could that be so in this modern internet age?
Academic Freedom of Speech brings with it a mark of quality which rightly affords the speaker and what they say a particular reverence and respect in society – it is a tremendous privilege which carries significant power, but with that comes responsibility. Just as a solicitor will face life-changing repercussions for abusing the special trust our society places in them, academics must accept the burdens alongside the benefits if they wish to claim a special status.
In January, the University and College Union (supported by Education International) made a submission to UNESCO and the ILO which alleged that the law in the UK provided insufficient protection for Academic Freedom of Speech, particularly when compared to (other) EU states. This suggests that the freedom is not well placed to withstand its current threats in the UK, but is that conclusion correct?
The English Law position
To begin to answer that question, we must first consider what the position is under English Law. The starting points for this are section 43 of the Education (No 2) Act 1986, and the Human Rights Act 1998. The former requires universities to take reasonably practicable steps to ensure freedom of speech within the law, which includes producing a code of practice in order to facilitate compliance with that duty. The latter requires public bodies to comply with the European Convention on Human Rights, which includes the right to freedom of expression under Article 10.
The Equality and Human Rights Commission have recently published a guide on the law concerning freedom of speech in the UK, specifically for universities and other institutions of higher education. This gives an overview of the law and guidance relevant to issues of free speech on campus. Unfortunately the guide does not examine in much detail the related, but still distinct, issue of academic freedom of speech. It defines that concept as such:
“Academic freedom relates to the intellectual independence of academics in respect of their work, including the freedom to undertake research activities, express their views, organise conferences and determine course content without interference.”
The guide notes that: “as part of their duties under Article 10 and the s.43 duty, [universities] must protect the freedom of expression of academics and staff”.
The Charity Commission (which regulates certain higher education institutions and students’ unions) has also recently updated its guidance on freedom of speech. While it recognises, “the important role that charities have in challenging traditional boundaries and ‘group-think’ as well as encouraging the free exchange of views and the educational benefits of such activities”, it similarly has almost nothing to say about academic freedom of speech specifically.
The lack of further commentary is perhaps to be expected given the absence of rules and guidance concerning this concept on the statute book or in the case law. Aside from the s43 duty, universities must have particular regard to academic freedom when implementing the ‘Prevent’ duty and the Office for Students (which regulates most universities) also has a duty to protect academic freedom in exercising its functions. However, there is little mention of the concept elsewhere.
Testing the boundaries
The uncertainty which this creates is particularly challenging for universities in light of recent high profile crises which have stress tested the boundaries of Academic Freedom of Speech – in particular Professor John Finnis and Dr Jordan Peterson.
To where then should universities turn when considering any similarly thorny issue with regard to Academic Freedom of Speech? The answer, at least initially, is likely to be their governing statutes and/or the s43 code of practice which they have been required to prepare. Many universities have enshrined adherence to academic freedom in wording which often broadly mirrors section 202(2)(a) of The Education Reform Act 1988. This required University Commissioners (a position which no longer exists) to:
“ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.”
At first glance, this may allay any concerns that academic freedom is particularly vulnerable to its threats, but note the crucial caveat “within the law”.
On the one hand, speech may be limited if it would amount to a criminal offence (such as stirring up racial hatred or provoking violence) – this is relatively clear, but amounts to a high bar given the necessary criminal burden of proof (and the international case law should still be considered – see below). On the other, there are civil law breaches, in particular the harassment provisions of the Equality Act 2010. These prevent behaviour which creates “an intimidating, hostile, degrading, humiliating or offensive environment”. Closely linked to this is the Public Sector Equality Duty, which requires universities to consider the need to eliminate discrimination and harassment, encourage good relations between those from different races, and to tackle prejudice.
For those familiar with the controversial speech of Professor Finnis in particular, it is within this interaction of academic freedom and the Equality Act where much of the confusion and difficulty lies. The explanatory notes to the Equality Act require tribunals and courts to balance Article 10 and academic freedom against the right not to be offended in deciding whether a person has been harassed, but this does not take us much further than a careful reading of the various legislation would have done.
The precise meaning of “within the law” is therefore far from clear and interpreting it poses a real conundrum for universities. The considerations in any particular case will be nuanced and fact sensitive, but the English case law provides little assistance in what could be a highly controversial judgment call for a university. A call which, if they get it wrong, can lead to significant reputational damage and expose them to a variety of legal claims, including under Article 10.
The view from Europe
Fortunately, the case law of the European Court of Human Rights (ECtHR) has considered fundamental issues concerning the nature of Academic Freedom of Speech. It is important to note that it is through the lens of this case law which the domestic law must be viewed. In particular, it will be a relevant consideration as to whether any breach of the Equality Act has actually occurred.
Any institution seeking a way forward on a complex issue concerning Academic Freedom of Speech would be wise to look beyond the English Law (and associated guidance) to the ECtHR in order to fully appreciate the legal framework which any such decision they must make sits within. Such considerations are particularly apposite given the potential tensions which may exist between the ECtHR case law on Article 10 and requirements under the Equality Act.
As such, before we can consider whether Academic Freedom of Speech in the UK can withstand its current threats, an understanding of the ECtHR case law is required. Our next blog will consider precisely that and ask whether this international law would help mitigate any such threats.
James Murray is an Associate in Taylor Vinters’ multi-disciplinary higher education team. The team advises a range of higher education providers, research institutes and learned societies on issues including: academic staff engagement and intellectual property; governance and regulation; and research ethics and integrity.
 S31 Counter-Terrorism and Security Act 2015
 S36 Higher Education and Research Act 2017