Operating a 'no-platforming' policy could grate with universities' legal obligation to take ‘reasonably practicable’ steps to ensure freedom of speech within the law for their members, students, employees and visiting speakers, the guidance, published by the Equality and Human Rights Commission (EHRC) on Monday, said. The legal duty is set out under section 43 (s.43) of the Education Act 1986.
"Policies not to invite certain individuals or groups may be adopted by trustees, for example, to protect the reputation of the SU (students union), the welfare of students, and to prevent funds being used for a purpose which is not in the public benefit," the guidance said. "However, if a student group or member of staff invited a speaker from an organisation that is subject to a ‘no-platform’ policy and the SU, their officials or other students attempt to stop them from speaking, the HEP (higher education provider) must decide whether the speech is protected by the s.43 duty. If so, the HEP has a legal duty to take steps to enable them to speak."
"SUs should be aware that creating a ban for certain groups or named individuals, could breach a HEP’s s.43 code of practice and undermine the right to freedom of expression. In relation to named individuals, SUs should be cautious about the risk of liability for defamation, which could place it in breach of charity law obligations by exposing its assets and reputation to risk," it said.
The new guidance is relevant to higher education providers and students' unions in England and Wales. It was developed by the EHRC in partnership with a range of other bodies, including the UK government, the Charity Commission, the Office for Students, the Commission for Countering Extremism, the National Union of Students (NUS) and Universities UK.
The guidance was prompted following concerns over censorship. Student groups have previously pointed to 'no platforming' and 'safe space' policies as reasons to refuse invitations to certain speakers to their events. In a report by the Joint Committee on Human Rights at the UK parliament, concerns were raised with existing guidance, and former universities minister Sam Gyimah subsequently held a summit with bodies from across the sector, with the EHRC then tasked to lead on the development of new guidance.
The new guidance has said that, while 'no-platforming' may be illegal, universities can issue warnings about the type of discussion likely to arise at events.
"By warning event attendees about the nature of views that may be expressed, trigger warnings may help to facilitate free speech by enabling balanced debate to take place without causing harassment," the guidance said. "People who might find the views offensive or distressing can make an informed decision to stay or leave. Although trigger warnings may lead certain students to choose to opt-out of debate or discussions, the action is not stopping anything being discussed by those who want to attend."
In addition, it is also not unlawful to create 'safe spaces' on campus in which people with "protected characteristics" can express views "free from harassment and discrimination", although "care should be taken when applying any policies in a ‘blanket manner’, for example, across campus, to make sure they do not restrict freedom of expression", the guidance said.
The new guidance clarified that the legal presumption is in favour of freedom of expression, and that an event should be hosted unless there are no reasonable options for running it. In this respect it said universities should take account of areas of law which may serve to limit freedom of expression, including anti-terrorism, public order, public safety and unlawful discrimination laws.
Universities must balance the right to protest against the right for an event, which is the subject of protest, to proceed, according to the guidance.
Universities law expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com, said there had been considerable confusion created in the sector by previous guidance, and this was perceived to be stifling free speech. He said the new guidance was an attempt to address the issue.
"The EHRC’s guidance is a positive step in trying to address a continuing perception that there is a free speech crisis in the higher education sector, and that this is driven by complexity of conflicting regulations and a failure on the part of institutions to tackle the use of no-platforming and safe spaces by student unions to restrict debate on campus," Sladdin said. "The emphasis of the guidance on these issues and the relationship which exists between the students union and the higher education provider in managing freedom of expression indicates that this is seen as a key issue by EHRC and the Department for Education."
"This also explains why the EHRC guidance stresses that the legal presumption must always be towards the promotion of freedom of speech, unless other legal obligations which place a statutory limit on the rights of free speech or expression apply, in order to avoid any ambiguity about the balance to be struck when there is no clear evidence to suggest that a speech will be unlawful or that there are reasonably practicable steps which can be taken to mitigate any risks arising," he said.
Sladdin said, though, that what is still unclear is whether the issues covered by the guidance are as widespread as we are led to believe. A paper published by the Office for Students board in September 2018 suggested that there is limited evidence that higher education providers are failing to tackle these issues and that in the majority students were willing to engage respectfully in exercising their rights. Sladdin said the findings accord with his own experience gained in advising institutions on this issue.
"What is likely to be of more assistance in the guidance are the more limited sections dealing with the practicalities involved in ensuring that an event can proceed safely and at what point a protest against an event becomes an unlawful infringement of the rights of others," Sladdin said. "These 'on the ground' issues often have to be dealt with as events unfold on the day, and in my experience can unfairly create the perception that rights of expression are being curtailed."