PAGolitical and press interest in what happens in universities is intense and the freedom of speech issue is at the centre of the culture wars being fought by this government. Antagonism by the press and some right-leaning thinktanks towards so-called “woke warriors” means that what is discussed on campus – and who is invited or disinvited to speak to students – has become a major political issue.
The stereotypical view that universities are political monocultures and that debate is stifled is not one that we recognise. Bastante, students are struggling with a very different type of university experience to the one they expected: online learning, major financial difficulties and mental health issues. Lots of virtual meetings are still going ahead – usually with a wide range of guest speakers with views across the spectrum, and often from around the globe.
Yet even with the many challenges posed by Covid-19, the highly politicised approach to discussing freedom of expression at universities, which has been stoked by the government, will not be going away soon. El mes pasado, Gavin Williamson, the embattled secretary of state for education, wrote to the Office for Students (OFS) about his confected concerns and quickly followed this up with a policy paper on free speech and academic freedom largely culled from previous Policy Exchange papers. There is to be no consultation about it; a sledgehammer of legislation is on its way.
Mr Williamson suggests that there is growing evidence of a “chilling effect” on campuses which means that cultural, religious or political views cannot be expressed without fear of repercussions. The evidence cited is scant. Su magic solution is to create a “free speech and academic freedom champion” to investigate infringements and to require the OFS to regulate universities (y, por primera vez, student unions) – with the power to impose fines and to require universities actively to “promote” freedom of speech.
Most worryingly, the paper proposes that a statutory tort for breach of the duty be introduced which would allow individuals – lecturers and students and, no doubt, pressure groups – to seek legal redress for the loss they have suffered as a result of breach of rights and freedoms. Loss is undefined but would no doubt include injury to feelings awards, which could be substantial. Universities would be involved in drawn out and expensive litigation.
De hecho, there are provisions galore already. los Prevent legislation, hate speech laws, la Counter Terrorism and Security Act 2015 and laws of slander already cover the area in terms of higher education. Human rights protections to guarantee freedom of speech should not be overlooked.
Ironically enough the government paper states, “The existing legal framework has been criticised [by the Joint Committee on Human Rights (JCHR) in their 2018 report on Freedom of Speech in Universities] as being overly complex” – but the government proposes to make it considerably more complicated. It also refers to the need for institutional autonomy, while the proposals would curb that.
Sensational press coverage about cancelled invitations to, entre otros, Amber Rudd, Germaine Greer y Peter Tatchell, has caused outrage and confusion in the sector. En efecto, it was this confusion that triggered the Equality and Human Rights Commission’s work in relation to freedom of expression in universities in 2019. After consulting with students unions and university bodies, the commission produced a practical manual setting out the law, as well as case studies to address no-platforming concerns and to be clear about the limited circumstances in which meetings can be cancelled – where there are actual or threatened acts of harassment, discrimination or hate speech.
The EHRC guidance is now being widely used, and universities and student groups are looking at how the guidance should be implemented in individual universities. De hecho, constructive work is being undertaken by some leaders of students’ unions to address the many accusations that debate is being shut down at universities. Recommendations include a call for a new student code to be introduced by student unions to enshrine the principles of free speech and allowing the creation of a safe environment for exchanges of views. They have also discussed the importance of creating a partnership with universities to establish a process by which any concerns about particular speakers might be addressed.
We welcome the opportunities for further development of the draft code by students’ unions and leadership teams of universities to create a clearer and a proportionate way forward. In our view, the current legal framework makes Williamson’s proposals both unnecessary and unnecessarily provocative at a very difficult time.
We believe that further politicising this already contested area by creating new legal obligations for universities, students’ unions and the OFS is not the responsible way forward. At a time when virtually all meetings do actually go ahead and institutions are working hard to get back to normal as we emerge from the pandemic, the government should focus on the most significant challenges for higher education – how to address financial shortfalls for both universities and students to enable the sector to flourish.
We deplore the cancelling of any meetings which are lawful, but these issues will not be helped by further legislation or litigation.