Securing free speech
Restricting or regulating speech
In some instances, providers may have in place, or wish to put in place, measures that restrict or regulate speech. They may need to put in place a policy (for example on student conduct) or take a decision in response to something that has happened (for example, an article that a member of staff has written).
Where they do this, they need to assess whether the measure complies with their free speech duties. The following three-step approach may be helpful.
1. Is the speech ‘within the law’?
Speech is ‘within the law’ if it is not prohibited by law.
So providers should first consider if the measure restricts lawful speech. This means that they will need to consider any relevant laws. The following is a short list of some laws that may be relevant. The list is not exhaustive.
- Public Order Act 1986
- Protection from Harassment Act 1997
- Terrorism Act 2000
- Malicious Communications Act 1988
- Communications Act 2003
- Terrorism Act 2006
- Equality Act 2010
2. Are there any ‘reasonably practicable steps’ to secure the speech?
Providers must take reasonably practicable steps to secure freedom of speech within the law.
The particular circumstances will be important in considering whether a step is reasonably practicable. Reasonably practicable steps may include positive steps – doing something – and negative steps – refraining from doing something.
Some factors are likely to be relevant when deciding whether a step is reasonably practicable:
If a step is unlawful, then taking it would not be a reasonably practicable step. For example:
- Prevent duty
Under the Counter-Terrorism and Security Act 2015, providers and constituent institutions must have due regard to the need to prevent people from being drawn into terrorism (the ‘Prevent duty’). Relevant legislation specifically states that, in complying with the Prevent duty, universities and colleges must have ‘particular regard’ to the duty to ensure freedom of speech and to the importance of academic freedom.
- Public sector equality duty
Under the Equality Act 2010, providers must also comply with the public sector equality duty. This requires providers to ‘have due regard to’ the need to eliminating discrimination, harassment and victimisation, and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and those who do not.
Providers will likely need to consider whether steps to secure free speech interfere with the essential functions of higher education. If they interfere with these functions (learning, teaching, research, or administrative functions or resources necessary for learning, teaching or research), then the steps are less likely to be reasonably practicable. For instance, if a campus protest at a certain time and place prevents teaching or learning, then it is unlikely to be reasonably practicable to permit it to take place then and there.
Where a provider or constituent institution restricts free speech to make sure its essential functions continue, we would expect it, wherever possible, to restrict the time, place and manner of the speech rather than lawful points of view.
Concerns about physical safety are also relevant to whether steps are reasonably practicable. If speech would directly cause a specific danger, then taking steps to secure it is less likely to be reasonably practicable. But if the speech only has an unspecific and indirect link to concerns about physical safety, this is unlikely to be relevant.
Other factors are more likely to be irrelevant when deciding whether a step is reasonably practicable.
The viewpoint that the speech expresses is more likely to be irrelevant. This includes whether or not the viewpoint:
- aligns with the provider’s aims or values
- is controversial or offensive
- meets with the approval of external or internal groups at the provider.
The impact of speech on the reputation of a provider is also more likely to be irrelevant.
3. Are any restrictions ‘prescribed by law’ and proportionate under the European Convention on Human Rights?
If a provider cannot take reasonably practicable steps, then it must make sure that any restriction is in line with Article 10 of the European Convention on Human Rights.
Article 10(2) sets out that ‘an interference’ – or a restriction on free speech – must be ‘prescribed by law’ and also 'proportionate'.
Both these terms have particular meanings.
An interference is 'prescribed by law' if:
- there is a specific domestic English legal rule or regime which authorises the interference;
- the person who is affected by the interference must have adequate access to the rule in question; and
- the rule is formulated with sufficient precision to enable the affected person to foresee the circumstances in which the law would or might be applied and the likely consequences that might follow.
To assess whether a measure is 'proportionate', providers must consider:
- whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
- whether the measure is rationally connected to the objective,
- whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
- whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
In practice, this means that it is difficult to restrict speech in a higher education context.
Any regulations or restrictions should:
- Use legal definitions where these are available.
- Incorporate objective tests where appropriate, for instance in relation to harassment.
- Avoid vague language or undefined terms.
- Include clear, adequate and effective ‘safeguard’ statements protecting academic freedom and freedom of speech within the law (for instance, to the effect that where a policy conflicts with academic freedom, the latter prevails).
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