Andrew Tettenborn is a professor of commercial law and a writer.
Politics is a bit like big game hunting. If you have a beast you want to bring down, as often as not you only get one shot at it before events move on. This is exactly the case with free speech in universities. The Government has commendably committed to legal reforms to ensure that students, student societies and professors have the right (and also the practical ability, which is not quite the same thing) to say what they like within the law. They must now get it right.
The present duty to respect free speech within the law, introduced by Margaret Thatcher in 1986 to deal with student mobs preventing (normally Tory) MPs from speaking, sounds good. University administrators can (and do) sanctimoniously trumpet their support for it; so also do bodies like the Equality and Human Rights Commission in its advice to colleges.
But it doesn’t actually work very well. Universities still regularly maintain blanket bans on speech that is sexist, racist, homophobic or whatever. Take a lecturer hauled before management for liking a Tweet, signing a letter or making a statement on social media. It’s often discreetly made clear that if they don’t tone down their comments they won’t be promoted and may be first in the queue for redundancy, and there’s not much they can do.
If a student society is denied a platform or booking (or registration with the SU), the prospect of being told that it can, at vast expense, seek an injunction or a judicial review is hardly very comforting, or very effective at making sure it is actually able to make itself heard. Again, if a class of students is threatened that what they say on Facebook may lead to disciplinary proceedings if it causes outrage to an interest group, they are most likely to hunker down. And so on. Things aren’t right.
The Government plans to do four things. It will extend the duty to respect free speech to cover student unions (which control many facilities available to students) as well as universities. It will make universities’ registration and entitlement to registration conditional on such respect and allow support to be withdrawn if it is not present. It intends to ensure that all academics’ contracts protect their right to engage in free speech within the institution without fear for their employment and promotion prospects; and it will give a legal right to students and academics to sue for damages if their right to free speech is wrongly curtailed.
This is several steps in the right direction. The prospect of liability in damages and loss of government support has a wholesome ability to scare university bigwigs, with their inflated salaries and their view of themselves as captains of industry and the institutions they run as profit centres. And the strengthening of academics’ contractual free speech rights within the institution can only be an advance, especially for younger teachers faced with overbearing administrators (sorry: line managers) threatening disciplinary proceedings.
But these proposals probably don’t go far enough. The Free Speech Union has been concerned with this issue ever since its foundation, and has considerable experience in dealing with such problems on the ground. And while as an organisation it has not stated any formal position on these plans, informal soundings among a number of people connected with it have shown widespread agreement that at least three further things remain to be done.
First, internal free speech is all very good; but we need for a degree of protection for academics’ lawful extramural political speech as well. Except where their pronouncements can be proved directly and substantially to damage a university’s interests over and above its general desire to protect its reputation, institutions should be forbidden to interfere with what they say in a private capacity. If complaints are made to a university by third parties about what one of its academics has said (an increasingly common way of silencing people these days), it should at the very least be under an obligation to stand back and decline to get involved.
Second, any protection for free speech is apt to be undermined by an insidious provision in the Equality Act 2010 (s.26, since you asked), outlawing any conduct seen as violating any other worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It needs to be made clear that in so far as speech is protected as free speech, this provision does not apply. A university must not be allowed to take away with one hand what it has given with the other.
Third, we must not forget students. They need specific protection for their lawful political speech, both within and outside the university. Even where posts on social media cause controversy or prove offensive to other students, they should not be able to be made the subject of disciplinary proceedings under speech codes or other regulations.
One more thing. To cement the protection of free speech and deal with the problem of selective “no-platforming”, in my view there is a need for yet a further provision. Universities and student unions, in so far as they make rooms and other facilities available to student bodies for meetings and talks, must be specifically required not to discriminate on the basis of the views held by such bodies or likely to be expressed at the event, unless they can show that such views are actually unlawful.
In other words, if an institution chooses not to allow political meetings at all on its premises, that is fine: as a private, albeit charitable, organisation that is its prerogative. But if it chooses to permit them, it should not be permitted to be selective in the views it allows to be expressed.
As we said earlier, the Government has a wonderful opportunity to preserve freedom on university campuses. But it’s one that, given the ways of politics, may not present itself again for some time. Gavin Williamson can’t afford another reform that goes off at half-cock. We must do things properly this time.