Freedom of speech in universities – is there a problem?

The debate around freedom of speech in universities has become increasingly heated in recent years in part due to a small number of high-profile incidents involving the banning of well-known speakers from campuses. Concerns have also been raised about universities allegedly curtailing freedom of speech through ‘no-platform’ policies and ‘safe spaces’ and it has been suggested that higher education providers are permitting a general atmosphere of intolerance towards differing opinions.

There is some evidence to suggest that some staff and students of all political persuasions self-censor their views on campus and online, but research has found that most UK students do not think that free speech nor academic freedom is under threat in their university.

Official figures by the Office for Students show that only a tiny proportion of events or speakers on university campuses have been cancelled in recent years, and these incidents have occurred at only a very small number of HEPs.

The legal framework around freedom of speech is complicated. The Education (No. 2) Act 1986 section 43(1) requires higher education establishments to take reasonably practicable steps to ensure that freedom of speech is protected and the Education Reform Act 1988 s202 protects academic inquiry. But freedom of speech is only protected within the law and certain statutory duties such as the Prevent Duty and public order legislation may curtail freedom of speech.

The Conservative election manifesto 2019 contained a commitment to “strengthen academic freedom and free speech in universities and continue to focus on raising standards” and on 17 February 2021 the government published a policy paper containing proposals to strengthen freedom of speech in higher education. The paper proposes:

• creating a Free Speech and Academic Freedom Champion to champion free speech, investigate infringements of free speech and recommend redress
• requiring the Office for Students (OfS) to introduce a new, registration condition on free speech with the power to impose sanctions for breaches
• strengthening section 43 of the Education (No. 2) Act 1986 to include a duty on HEPs to ‘actively promote’ freedom of speech
• extending the s43 duty to apply directly to SUs
• introducing a statutory tort for breach of the duty, enabling individuals to seek legal redress
• widening and enhancing academic freedom protections
• setting minimum standards for free speech codes of practice

There has been a lot of comment on these proposals and many of the responses stated that universities are committed to free speech and questioned the government’s decision to focus on this issue at a time when staff and students are coping with the consequences of the Covid-19 pandemic.