Monday, 9 February 2015


The online magazine Spiked published recently its ranking of freedom of speech on campus: an addition to the plethora of league tables relating to universities and one which deserves a closer look.

The Spiked ranking judges institutions on a traffic light system, and its judgements meld the policies and practices of universities with those of their associated Students’ Union. Each partner – the university and the students’ union – is individually scored; the two overall scores are then aggregated, with a ‘better’ score in some circumstances mitigating a worse score. (It’s a pessimist’s approach: the outcomes seem to me to drive scores down not up. But maybe that was Spiked’s intention…)

Universities are scored on policies such as Codes of Practice on freedom of speech, and on email and behaviour policies. Students’ Unions are additionally scored on any specific ‘bans’ that they have in place (for instance, decisions not to stock ‘lads mags’ in Students’ Union shops); any instances of speakers or societies being banned, and any general ‘no platform’ policies. Spiked assert that they are only judging instances where action is taken beyond what the law requires.

The law in this area is complicated and contradictory. (Normal disclaimer: I’m not a lawyer, and the following is for discussion, not to be relied upon in any specific legal action.)

Three areas are particularly relevant.

Freedom of Speech: universities have obligations set out in section 43 of the Education (No 2) Act 1986:
"(1) 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.
(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with —
(a) the beliefs or views of that individual or of any member of that body; or
(b) the policy or objectives of that body..."
The Act covers Students’ Union premises, whether or not these are owned by the university and whether or not the Students Union has a substantial affiliation to the University. Existing Codes of Practice for Freedom of Speech stem from this legislative requirement.

The Human Rights Act 1998 additionally contains provisions relating to the freedom of thought and expression.

Equalities: The Equality Act 2012, and in particular the Public Sector Equality Duty which came into force in April 2011 (s149 of the Act), requires that universities, in carrying out their functions,
"… have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
The relevant protected characteristics are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Eliminating discrimination means making sure that possessing one or more protected characteristics does not become the basis for less favourable treatment.

Advancing equality of opportunity means removing or minimising disadvantages which arise from and are connected to a protected characteristic; pro-actively meeting the distinct needs of people with a protected characteristic; and encouraging participation in public life or any other activity by people who share a protected characteristic where participation in public life or that activity is disproportionately low.

Fostering good relations means tackling prejudice and promoting understanding.

These are positive duties: universities must actively take steps to promote them, not simply ensure that they are not breached.

Security: Legislation relating to crimes against people and property are not specifically focused on universities, but activities within universities have caused particular interest, in relation to animal rights; political extremism and campaigning of many persuasions; and radicalism inspired by religion, again of many different persuasions. The most relevant legislation is s1 of the Terrorism Act 2006:
"(1) This section applies to a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.
(2) A person commits an offence if—
(a) he publishes a statement to which this section applies or causes another to publish such a statement; and
(b) at the time he publishes it or causes it to be published, he—
(i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or
(ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.
(3) For the purposes of this section, the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement which —
(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and
(b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances."
The Public Order Act 1986 also has relevant sections relating to behaviour which threatens individuals and which could give rise to violence or disorder.

Additionally, many universities have clauses in their charter or statues, or instrument and articles of government, which provide for academic staff to have academic freedom within the law.

Enough of the law lesson!  What this shows is that universities have a duty to ensure freedom of speech, and simultaneously a positive duty to foster good relations, which in the real world means watching what is said. I’m not sure that when Spiked say they only score when institutions go beyond the law, they are really being fair.

This, I think, is one of the problems with the Spiked ranking: universities are balancing conflicting legislative requirements. This means, inevitably, rules and policies which allow for individual judgment to be exercised (treating each case on its own merits is one of the hallmarks of good administration). And this can look very like arbitrariness. So university rules which allow for the exercise of discretion in, for example, disciplinary codes, may have a positive aspect.

It’s also the case that some of the issues that Spiked flagged – email policies which contained penalties for offensive language or behaviour – seem to me more like sensible rules which help manage the use of such systems. Universities, don’t forget, are communities, and even though the autonomy in judicial matters which was enjoyed by medieval universities is a thing of the past, a lot of community problems are mediated by university authorities. A few rules help no end in this task.

And then moving on to Students’ Unions. It’s necessary to look at the specifics. When one reads that a university has “banned the Sun” what has really happened tends to be more like, the students’ union shop has decided not to stock it. Now, last time I looked, a retailer was at liberty to choose what they sold. And if a shopkeeper (which is what students’ unions are in this case) decides not to sell something, well, so be it. Those who want to buy will go elsewhere. If a bookshop doesn’t have the book I want it isn’t censorship.

Finally, Spiked identify cases where Students’ Unions refuse a platform for speakers. This is where there begins to be some substance to their critique. It’s a perfectly legitimate debate to argue that only by exposing ‘bad’ ideas to criticism can they be defeated. It’s also perfectly legitimate to argue that by denying ‘bad’ ideas the oxygen of publicity, they are more quickly suppressed, and that no matter how much one argues, there will always be cussed folk who want to hold and promote a discredited view.

Which of these is right? I’m not going to get drawn into that. But the key point is that it is clearly a political argument. Nothing wrong with that, but the Spiked rankings need to be understood not as evidence of the need for moral panic, but as a position (and a pretty thorough libertarian position at that) in a political discourse. And in the current environment, where there are big issues at stake around surveillance in universities, I’m not sure it’s the most productive line to take.

But that’s just what I think, and I’m entitled to say it too!

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