13 Mar 2020

Universities seem to be getting it wrong when it comes to dealing with freedom of speech and, particularly, academic freedom of speech – a subset of the general concept which pervades the very essence and purpose of the academy.

In this blog, I want to focus on one of the core pieces of legislation which governs the law in this area: the duties under s43 of the Education (No. 2) Act 1986. I also want to discuss some ideas for legislative changes which the Government may wish to consider in order to enhance the protection for free speech on campus in line with the commitment in their 2019 manifesto.

Section 43 is central to many of the recent controversies around ‘no platforming’ of speakers, including prominent academics who were due to speak on issues which fell squarely within their professional expertise and competence, thereby triggering the higher level of protection afforded to academic speech under Human Rights law. Further clarity on these duties is very timely – last month saw the launch of a new Free Speech Union, which (among other things) intends to put pressure on academic institutions where it perceives that there has been a breach of its members’ rights to speak freely. At the time of writing, the FSU has already written letters in relation to the treatment of Amber Rudd and Professor Selina Todd.

What universities are getting wrong

Section 43(1) requires:

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.”

Further, “with a view to facilitating the discharge” of that s43(1) duty, relevant establishments must “issue and keep up to date a code of practice” which sets out the procedures for organising and conducting meetings in respect of which the duty is engaged.

The vast majority of relevant institutions will have, no doubt, put codes of practices (“COPs”) in place after s43 was introduced – the question is whether they have been adequately keeping such COPs up to date in line with their duty to do so. I do have serious doubts as to whether that is the case and, consequently, whether institutions have COPs in place which can actually allow them to properly facilitate the discharge of the s43(1) duty.

One of the main reasons for my doubts is the fact that various parts of the s43(1) duty have been subject to change and development over the years and that even a brief consideration of some leading institutions’ COPs suggests that they have not been updated in line with such changes, as I set out below.

First, the meaning of “within the law” is constantly being nuanced both by statute and case law. Since 1986, various statutes have come into force which have had an impact upon this key qualification of the duty – of primary importance are the Equality Act 2010 (“EA”),  the Human Rights Act 1998 (“HRA”) and the Counter-Terrorism and Security Act 2015 (“CTSA”):

  • As I’ve set out in detail in a previous blog, there is a rich seam of case law from the European Court of Human Rights (as given effect by the HRA) concerning academic freedom of speech which has a direct and fundamental effect on how “within the law” should be interpreted in an academic context.

As recent guidance, including from the Equalities and Human Rights Commission on freedom of expression in universities, makes no meaningful mention of the case law around academic freedom of speech, it would come as no surprise to see omissions in an institution’s COP – unfortunately that is no excuse for not complying with the law.

  • The EA also has an impact (as I set out here) – for instance the public sector equality duty and the prohibitions on discrimination and harassment. In the explanatory notes which accompany the EA, it was explained that institutions must “balance the rights of freedom of expression…and of academic freedom against the right not to be offended in deciding whether a person has been harassed”.
  • Last, there is also the often controversial ‘Prevent’ duty contained in the CTSA. When exercising that duty, institutions must have particular regard to “the duty to ensure freedom of speech” and “the importance of academic freedom”.

If a COP takes no account of the impact of the above, in particular the enhanced protections for academic freedom of speech, then arguably it is not compliant with the s43 duties.

Second, the actual wording of s43 was changed with effect from 1 August 2019 to coincide with the launch of the new Office for Students regulatory body, which itself has various obligations to ensure academic freedom is properly protected when exercising its functions.

A small point – some institutions extract the wording of s43 into their COPs, which means they are now no longer up to date.

A larger point – the wording concerning to which establishments in England the s43 duties apply has changed. The duties no longer apply generally to any university (including any university college or college within a university) but rather to (among others) any higher education provider registered by the OfS. This is an unfortunate change as it creates an argument that certain independent institutions, such as the Oxford and Cambridge colleges (which are predominantly not currently on the OfS register), have been inadvertently excluded from the application of the s43 duties.

In the case of the Oxbridge colleges, they probably would still be caught in some sense as they are generally involved in the governance of their wider universities (which are on the OfS register) and have incorporated the s43 duties into their own governing statutes and ordinances. However, the ambiguity is unhelpful and creates arguments as to how precisely the s43 duties apply in particular contexts, e.g. is it just in the context of the Colleges hosting University wide events and facilitating the University in complying with its duties? Legal advice is almost certainly needed by the colleges to assist the interpretation of their duties on any given set of facts.

How to fix it – universities

The above is important to academic institutions, not only because they must of course comply properly with their various legal duties, but also because their COPs (and any associated policies) will be coming under increasing scrutiny and pressure from academics and pressure groups such as the FSU.

It is imperative, therefore, that their COPs and policies are up to date and robust enough to deal with what are often highly controversial and well publicised challenges relating to (academic) freedom of speech and ‘no platforming’. To that end, the first step must be an urgent review of their COP to ensure that it is fit for purpose.

Institutions may also want to review and update related procedures, e.g. in relation to room bookings, with the s43 duties specifically in mind, in order to head off being involved in future controversies and avoid costly and embarrassing breaches of their legal duties.

How to fix it – new legislation

There are reports in the media that the Government is now looking at introducing new legislation to protect freedom of speech on campus, but how exactly would that be achieved? A recent Policy Exchange report made some useful contributions to that question. My suggestions are as follows:

1. Plug gaps in existing legislation. The current legislation, including the s43 as set out above, does have some gaps which can be remedied in new law:

  • As well as the point made above about their potential application to the Oxbridge Colleges, there is the point made by others elsewhere that there is no direct application of the duties to student unions, groups using an institution’s premises and other student groups affiliated to institutions. Extension of the application of the duties is an obvious fix, although in reality, one must consider effective compliance and enforcement. The application of free speech duties to student unions could be achieved by amending s.22 of the Education Act 1994. The Act currently provides that universities must bring free speech COPs ‘to the attention of all students’. A more effective safeguard would be to make the COP binding on student unions in any agreement between a student union and its host university. Institutions need to have ultimate oversight of the latter two groups at least – they have meaningful ‘skin in the game’ as far as compliance is concerned, as well as deeper pockets and reputations to protect.
  • Related to that is the need to give the s43 duties more ‘teeth’ – this could be done by giving additional enforcement powers to the OfS. For example, the power to impose significant fines for non-compliance and other sanctions related to their functions as degree awarding bodies with access to public funds.
  • An explicit statutory reference to academic freedom of speech (as is the case in the CTSA and the explanatory notes to the EA) should be included and even stronger protection afforded to it. As noted above, this is a subset of the more general speech right. It would create a two tiered duty (helpful for Professor Todd, but perhaps not for Ms Rudd), but my view is that approach is correct as a matter of existing law but also principle. The definition of academic freedom as contained in s202(2)(a) of the Education Reform Act 1988 might be a sensible starting point.
  • The legislation could be more prescriptive as to what COPs should contain – see above, but also they could include details of what action must be taken against relevant student groups who have breached their duties (e.g. withdrawing permission for an entire event to be hosted and limiting future funding). Subordinate legislation, or perhaps statutory guidance, could set out standards for the ‘reasonably practicable’ steps that universities must take in relation to security for speaking events and rescinding invitations to speakers.
  • The relevant statutory provisions of EA could be amended so that the explanatory notes are put on a statutory footing and institutions (and tribunals) are expressly required to consider academic freedom when deciding whether it is appropriate to conclude that harassment has occurred in the circumstances of any particular case. This could be supported by appropriate references to new and existing duties relating to freedom of speech and academic freedom.

2. A statutory academic freedom clause. The current approach is for institutions to have their own set of statutes and ordinances which prescribe the circumstances in which, and reasons for which, an academic can be dismissed and the procedures which must be followed before doing so (e.g. rights to legal representations, hearings before governing bodies of fellow academics, etc.).  Such internal rules do often make it very difficult to dismiss academics; however the issue is that they are inconsistent across the sector as a whole and sometimes effectively non-existent. This is a particular problem with regard to the exclusion of certain types of academics from an academic statute’s application at one institution but not at another – this is sometimes the case with early career academics who often only have short term contracts and are engaged on an indeterminate employment status.

An obvious solution would be to regularise these internal rules across all institutions, however I would suggest that a better approach would be to modernise the system as a whole. Historically academic statutes were introduced to protect academics and their tenure long before the development of employment law and the protections introduced in the  Employment Rights Act 1996.

In the context of protecting free speech, a better approach may be to incorporate a statutory academic freedom clause, by automatic operation of law, into the contracts of academics (whether they be formerly classed as employees or workers under employment law, and whether their contractual duties involve teaching or research) to replace the protection of the academic statutes. Any dismissal in breach of such a clause could be made automatically unfair without the need for 2 years of qualifying service (I appreciate that not all academics may be classed as workers or employees, e.g. end of career emeritus professor winding down their work, but such a clause would of course build upon the existing rules protecting academic freedom of speech). Alongside this, academics could be protected from being subjected to a detriment because of protected speech. This would include disadvantages short of dismissal such as failure to promote or confer other benefits. Further, the detriment provisions could bite on both individuals and employers in order to give a more rounded protection and direct consequences for those seeking to illegitimately undermine academics.

The advantages of this new approach would be to allow easier (and cheaper) enforcement of the rules in the employment tribunal, a more predictable and transparent application of the rules as the case law builds publicly available precedents, a move to openness away from the arcane procedures of the traditional university environment, and a greater opportunity for compensated exits (which are often not provided for in academic statutes). There are obvious advantages both to the institution and to the academic in having better clarity, transparency and process around these issues.

However, we do still need to appreciate that academics are in some ways a special case. In dealing with cases where the academic freedom clause is an issue, suitably qualified specialist wing members (e.g. eminent academics in the relevant field) could be appointed to assist the judge in determining whether the academic in question has, inter alia, lived up the relevant standards of research ethics and integrity (etc.).Both claimant academic and respondent institution would be able to appoint a wing member of their choice (subject to minimum, objective standards of qualifications and experience, etc.)

3. A statutory academic freedom employment code. In order to supplement the new academic freedom clause, such a code could set out key principles and objectives with which an institution must comply when dealing with the disciplining and dismissal of academics, including in relation to handling of misconduct investigations. Courts and tribunals would be required to consider the code in deciding academic cases and an unreasonable failure to follow it by an institution could lead to an uplift in compensation for the academic concerned (cf. the ACAS code on disciplinary action and grievances in the work place). This can be accompanied by persuasive guidance, including indicative behaviours of how the principles might be achieved in practice.

In respect of the above, the devil will be in the detail and those drafting the relevant legislation will face a challenge in dealing with the academic ‘edge’ cases. If the Government is going to legislate to give very high levels of statutory protection for academic freedom of speech, then the law must describe the point at which the protection is gained and when it is lost. Flagrant abuse of the system must be prevented and a suitable release valve for use in extremis must, in my view, be included to maintain public confidence in the system and the integrity of the freedom itself.

Not every single utterance by every academic should necessarily be protected at an enhanced level above and beyond their ordinary speech rights (which in line with the above would in any event be enhanced in an academic context) and there should be some appropriate qualifying criteria for what will be protected academic speech. For example:

  • the individual in question must be an academic. (Note: there is a debate to be had as to where line is drawn on that definition; and
  • the speech should be:
    • within their professional competence and expertise;
    • flow from that expertise; and
    • the underlying basis for it must meet suitable standards of research ethics and integrity (Note: I have drafted it in this way in an attempt to cover peer reviewed papers, but also extra mural communication of ideas (e.g. on Twitter) and value judgments).
  • Certain considerations can also be expressly excluded, e.g. actual or potential subjective hurt and offence, and/or reputation concerns of the academic’s institution.

It is hard to overstate the importance of academic freedom of speech given the breadth of ideas – almost invariably controversial in their time – which have been protected by it. Whatever one may think of the particular ideas which today are claiming its protection, it is fundamentally an apolitical protection: times change, politics change, ideas change – society’s commitment to academic freedom should not.

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.