Freedom of Speech: Universities

Jeremy Lefroy Excerpts

Thursday 17th May 2018 Westminster Hall

[Fiona Bruce (Congleton) (Con)]

This inquiry is one of the most important that we have undertaken in my three years on the Joint Committee on Human Rights. As we have heard, we received some very disturbing evidence. Free speech is indeed a foundation for democracy in society, and universities are places where many of tomorrow’s leaders learn how to explore ideas in a way that prepares them to engage in and influence wider society, so it is critical that free speech is secured in universities. A key part of all students’ education is the ability to engage in dialogue and contentious debate. Universities have a legal duty under the Education Act to secure freedom of speech within the law, both for students and for visiting speakers.

If we do not prepare students to engage in dialogue in an environment that promotes free speech, there is a serious danger that we will risk promoting extremism and factionalism within wider society. Only by understanding different views and beliefs and by, as one of our witnesses said, countering bad ideas with good ones, will we build community cohesion and break down prejudice and discrimination in wider society, which, at worst, as we know, can lead to violent disturbances within our local communities. That is something that none of us wants. Indeed, it is one of the purposes of the Prevent strategy. It is ironic that the strategy is in many ways defeating one of its key objectives in the way that it is applied at universities. I will come on to that in more detail shortly.

For the record, I will set the legal scene, which the Committee is now well versed in. Article 9 of the European convention on human rights states that,

“Everyone has the right to freedom of thought, conscience and religion.”

Article 10 sets out the right to freedom of speech and a right to,

“hold opinions and to receive and impart information and ideas without interference by public authority”,

and this

“can extend to the right to say things which may...disturb the listener”,

and which the listener might find offensive or even shocking. Free speech is not an absolute right. There are limitations on it to ensure that it is not exercised in a way that causes harm to others by, for example, inciting murder, violence or terrorism or stirring up racial hatred or hatred for other groups, or if it is defamatory or malicious or constitutes harassment. We found that within university settings the inhibitions and restrictions on free speech went much further than that. A number of factors were limiting free speech at universities. I will summarise them briefly, and go into detail about some of them.

As we have heard, there were incidents of unacceptable intimidatory behaviour by protesters intent on preventing free speech and debate. Unnecessary bureaucracy was imposed on those organising events. There was some confusion about what the Prevent duty entailed; for example, some students were frightened about the possibility of being reported for organising or attending events, and of being investigated, as a result, as potentially involved in extremism, which might draw people into terrorism. There was considerable confusion about that.

Other factors were regulatory complexity and confusion, confusion over the Charity Commission guidelines, and unduly complicated and cautious guidance from the Charity Commission itself about what student unions could or could not do in organising events and permitting speakers to attend. Safe space policies were often incorrectly used. Indeed, we did not find the concept of safe space policies helpful at all. It was applied too broadly and vaguely. We found that student unions were inconsistent in the way they applied the regulations on allowing them to hold events at the student union. The different types of group might include faith groups, groups with non-religious views, or groups with views on the Israel-Palestine conflict, right-wing or left-wing views, pro-life or anti-abortion views, and views on transgender issues or Islamophobia. There were many minority views and beliefs—a huge swathe. University authorities’ oversight of the issue, under the legal duty to secure free speech that I mentioned, was inadequate. Another matter of concern was the chilling effect—an undercurrent of restraint among students, both as to their speech as individuals and as to the large number of events either not held at all or inhibited, and of which there was no report, although students wanted them to be held.

Members of the Committee are not aware of one reason why I was concerned to hold the inquiry, which is a personal experience I had at one university. I shall try, in giving examples, not to name the particular university, as I think that might be unhelpful. I had been asked to speak about work I had done in Parliament —so, ironically, it was all in Hansard—on sex discrimination in relation to abortion. I was speaking in a room slightly smaller than this Chamber. The back wall was entirely glass windows and on the other side of it was a large courtyard or quad. To my right was one pop-up banner describing the organisation that had invited me to speak—the university Life organisation, on which two small feet were depicted. After I began to speak about what I had done in Parliament, which is on the public record, a university official in uniform came into the room and said, “Your event is causing offence.” There was a startled silence in the room, particularly from me. The official said, “It is causing offence to the students who are sitting in the bar on the other side of the quad.” They could not possibly have heard a word I was saying. It could only have been the sight of the banner. I was certainly saying nothing unlawful at all. We came to a compromise in the end. The official suggested that if we drew the giant curtains across the back of the room, so that the students in the bar could not see what was going on, we could carry on with the event and I could finish my speech. I know that that is not the only time when there has been an endeavour to put restrictions on parliamentarians at universities.

I was concerned about the issue and pleased about the inquiry, because I think the chilling effect and unreported inhibition of speech is far wider than we recognise. Often the chilling effect inhibits students with minority views, and that emboldens students who want to silence or censor views they consider wrong or offensive. I was more convinced about the resultant chilling effect by evidence from Professor Adam Tickell, the vice-chancellor of the University of Sussex. He said he had been unaware of the scale of the problem:

“It was only in preparation for this session that I became aware of the cases”.

Those cases included students being interviewed by Prevent officers, students subsequently telling the student union president that they were afraid to speak their minds, and Muslim students saying they were afraid to go to their campus prayer room. That is evidence from one of our witnesses that there is more to the issue than the public have been aware of for some time.

I join the Committee Chairman, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), in thanking the Minister for the interest he has taken in the issue. He told the Committee that just as important as the evidence of restrictions is

“what is hard to measure: the large number of events that do not happen at all, either because organisers are worried about obstruction or because the overzealous enforcement of rules makes them seem more trouble than they are worth.”

He added that,

“some of this is quite difficult to gather evidence for.”

I thank the Universities Minister for the lead that he is giving, and for the fact that he told the Committee that he would hold a

“summit to thrash out not only where the responsibilities lie but to make sure that they do not cut across each other and in so doing achieve the opposite of what all these guidelines are meant to achieve, which is to promote free speech.”

I should be interested if the Minister would today update the House on what he is doing to take forward what he said, and how he expects to tackle the issue in the coming months. It has become clear to me as we have examined the issue that it will not be resolved purely by the publication of our report, however important the Committee may think it. We have highlighted an issue that will take considerable tackling by a number of organisations and bodies.

I want to talk in a little more detail about the Charity Commission.

[Jeremy Lefroy (Stafford) (Con)]

My hon. Friend makes a powerful case, and I am most grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Chair of the Committee, for the way she led the inquiry.

Does my hon. Friend agree that perhaps universities and, indeed, student unions could take a more proactive role and encourage debate, rather than waiting for debates to come up, and seeing whether they are lawful and whether they should go ahead? They could perhaps take a more overt stance. The range of issues debated in universities is often pretty narrow. I look at the range of debate here and the global concerns about the problems of youth unemployment or, for example, the situation in the Democratic Republic of the Congo over the last 10 to 20 years, where 6 million people have been killed or died as a result of civil unrest and other disturbances. I rarely see debates in universities on these incredibly important matters. They tend to be confined, albeit on important issues, to a fairly narrow range.

[Fiona Bruce]

The hon. Gentleman makes a pertinent point, as always. I will refer back to it in a moment in relation to the Charity Commission’s guidelines. The actual wording of clause 43 of the Education (No. 2) Act 1986 imposes an obligation on university governing bodies to take

“such steps as are reasonably practicable to ensure that freedom of speech within the law is secured”

on both university and students union premises. I have written underneath, “proactive”. This is a proactive clause. It requires them to take steps to secure free speech, so I entirely agree. It does not help, for example, when, as charities, students unions have been told that they can devote resources to or campaign only on issues that further their charitable purposes. The Charity Commission has interpreted this—I think, and our Committee agrees —in a far too narrow way. The Charity Commission guidance for students unions indicated that it would consider it acceptable for charitable students unions to comment on

“street lighting near the campus”

because the issue affects students as students, and therefore fulfils their charitable purposes. The Charity Commission would consider it unacceptable for students unions to comment publicly on issues that do not directly affect the welfare of students as students, such as,

“the treatment of political prisoners in a foreign country.”

That is the Charity Commission’s own example, illustrating the point raised by my hon. Friend the Member for Stafford.

The Minister told our Committee that the Charity Commission guidance should

“go further and facilitate the promotion of free speech. It should be giving students’ unions the permission to host debates about controversial issues and expose students to a wide range of viewpoints. That should be the core purpose.”

That is quite right. It is not just preferable that free speech is promoted and protected in universities. It should be a prerequisite for any university that is going to achieve its educational purposes. I am pleased that the Charity Commission has acknowledged as much this week and has announced in response to our report that it will create new guidance in this area. Helen Stephenson, chief executive of the Charity Commission said yesterday:

“charitable students’ unions, universities and other higher education providers can challenge traditional boundaries, encourage the free exchange of views and host speakers with a range of opinions, including those who might be controversial or divide opinion.

These activities are entirely in line with their aims to promote education.”

That is a pleasing response to our report.

[Jeremy Lefroy]

I believe this year is the 200th anniversary of the birth of Karl Marx. He was born in Trier in Germany. He was effectively expelled from Germany because he was the editor of a newspaper that exercised the right of free speech. For those students perhaps slightly to the left of some of us here today, I point to the example of Karl Marx, who was the victim of university or town authorities in Trier, because he wanted to exercise free speech. From whatever political point we look at it, free speech is absolutely vital to secure the rights of individual citizens, as he was trying to do in that case.

[Fiona Bruce]

That is an excellent example. I hope it will also encourage students to the right of Karl Marx, because I have spoken to a number of students who have recently said, “I wouldn’t admit to being a conservative on campus.”

Our Committee concluded that the concept of safe spaces, having been extended to entire university campuses, is unhelpful. It is not only unhelpful. If minority views are supressed across the whole campus, but they are not views that are promoting terrorism or inciting the kind of activity I referred to earlier, the concept is actually against the law, impinging on the right to free speech under article 10 of the European convention on human rights. A number of students unions tried to argue in evidence to us that it was necessary to limit speakers who cause harm through speech—harm caused because people might find speech disturbing or upsetting. As our report says, however, this is counter or detrimental to free speech. Regarding safe spaces, we say:

“Whilst there must be opportunities for genuinely sensitive and confidential discussions in university settings, and whilst the original intention behind safe space policies may have been to ensure that minority or vulnerable groups can feel secure, in practice the concept of safe spaces has proved problematic, often marginalising the views of minority groups. They need to co-exist with and respect free speech. They cannot cover the whole of the university or university life without impinging on rights to free speech…When that happens, people are moving from the need to have a “safe space” to seeking to prevent the free speech of those whose views they disagree with. Minority groups or individuals holding unpopular opinions which are within the law should not be shut down nor be subject to undue additional scrutiny by students’ unions or universities.”

I hope that university authorities will take careful note of that.

On the Prevent strategy, we had quite some evidence. I want to reiterate what the guidance says. As our report states, under the Counter-Terrorism and Security Act 2015, the guidance states that higher education bodies,

“when deciding whether or not to host a particular speaker…should consider carefully whether the views being expressed…constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups.”

Those are important words—“risk drawing people into terrorism or are shared by terrorist groups”—if a little wide, but the issue of terrorism is critical. The guidance goes on:

“In these circumstances the event should not be allowed to proceed except where”

the educational bodies

“are entirely convinced that such risk can be fully mitigated”.

That is the legal position, but I will also cite some of the evidence we received about that and about hate speech.

An organisation called CARE, Christian Action Research and Education, stated:

“One common occurrence is that certain speakers who are perceived as ‘extremist’ are being denied the chance to speak at universities, to discuss their ideas, and have their ideas challenged by others in an open debate. First, this drives any such ideas underground. Second, the definition of extremism, as identified in the Counter Extremism Strategy…is very broad, incorporates non-violent as well as violent forms of extremism, and does not necessarily relate back to the concept of terrorism. In his recent judgment in the case of Mr Salman Butt, Ouseley J confirmed that the Prevent duty is a duty to prevent people from being drawn into terrorism and does not refer to all forms of extremism…Nonetheless, no steps have been taken by the Government to confirm the correct interpretation and scope of the definition of what constitutes ‘extremism’ and its impact on the Prevent duty.”

Some student groups, for example, have been prevented from holding events because the Church from which the speaker comes is considered fundamentalist or, in other words, extreme. Such an individual has not the slightest intention of drawing people into terrorism. I ask the Minister and his colleagues to look again at the counter-extremism strategy to ensure that its broad definition of extremism, which has been used by some universities, is not used to prevent free speech at universities.

Hate speech results from the use of threatening, abusive or insulting words, or the displaying of written material that is threatening, abusive or insulting and therefore intended to cause the person harassment, alarm or distress, or to stir up racial hatred. Although that is the definition of hate speech, and, as we were told in evidence,

“it is meant to be used narrowly in relation to any speech that fulfils the particulars under the Public Order Act 1986…over time, the phrase has become embedded into everyday language to describe any statement that some may find ‘offensive’.”

At universities, there is an increasing tendency to conflate offensive speech with hate speech, which

“has resulted in a far greater willingness to countenance censorship.”

Several pieces of evidence to our inquiry showed that that was the case. As a result of those common misunderstandings, freedom of speech at universities has suffered. I would be grateful if the Minister looked at CARE’s evidence to the inquiry in particular, so that an appropriate application can be made in universities.

I will give a few examples of the kinds of issues that were mentioned to us in evidence. We were told of a university that introduced “emotional risk assessments” in December 2016 that were used in an “invasive and heavy-handed way”. They have resulted in the students’ association telling student groups

“what they can and can’t do and say”.

In some cases, all of a student group’s activities, including weekly meetings, events and emails, that were to be sent to outside students or speakers had to be approved in advance by the students association. That meant that one or two people in the students’association office could basically make the operations of that student group impossible. For example, they rejected events because they were “too provocative” and they would not allow discussions that made specific reference to the Manchester terrorist attack or Hurricane Gregory, in case those specific incidents of suffering caused upset.

Another group was not allowed to have a stand at a freshers’ fair unless it was unmanned. A group at another university was told that it had to provide the name of any invited speaker, the topic and an outline of their talk 21 days in advance of the event.

We were told that at other universities there was a culture not only of safe spaces and hurtful speech but of trigger warnings:

“Students are encouraged to catastrophise when they hear something controversial or challenging rather than to engage with new ideas robustly.”

That is hardly a preparation for the world of work.

An ethics society was told that it could not hold an event because it would be asking for volunteers during it, and that contravened university policy guidelines. On further inspection, it was found that no such guidelines existed within the union or the university. Another group was told that it would be refused affiliation with the students union on the grounds that it was

“violating union policies regarding discrimination and equal opportunity”,

but on reading the union policy, no such violation was found. Several groups, particularly pro-life groups, were prevented from holding events or exhibiting material at freshers’ fairs that, on further investigation, was found to be used in primary schools and in further education material.

There are real problems for many groups in arranging external speakers and organising events. The Alliance of Pro-Life Students said that,

“pro-life societies are often given undue burden to host events”

and are

“subject to mediations to which other societies are not”.

Humanist groups said that student unions and universities,

“repeatedly shut down expressive conduct deemed by them to be wrong, offensive, or harmful, particularly with regards to criticism of religious beliefs”.

Such groups told us that,

“student unions were making arbitrary decisions about the views to which students should be exposed.”

They say that “many student unions” do not have clear or coherent democratic policies in place, which means that voting in a certain way, or no-platforming, or getting

“safe space policies into official union policy is surprisingly easy. If unions had better guidelines for democratic policies, and their union officials faced actual sanctions for disregarding freedom of speech, the union, and therefore the university environments, would become both more democratic and more open to diverse viewpoints.”

As I have said before, the issue will not be resolved overnight. I am encouraged that the Minister is determined to address it. It is clear that since our report more instances have come to light. For example, a colleague on the Committee received an email from UK Lawyers for Israel this week that expressed a number of concerns about specific policies on university campuses, including ticketing requirements and restrictions on advertising. It says that, although our report mentions that some pro-Israel events were disrupted, that happens on many occasions. The impact of such disruptions can be not only burdensome regulations and requirements for future events; the cost, time and administrative burden, and the need to protect people from hostile protests leaves students who run such societies exhausted and put off from hosting events. In an echo of another of our comments, UK Lawyers for Israel said that universities must impose penalties on students who incite, encourage or participate in the disruption of meetings.

It is a very full report; there is much more to it. I thank the Minister for his interest and look forward to his response and future action.