Helga Law Journal - 01.01.2021, Page 184

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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right to assembly and association ‘cover the right to peaceful protest.’348
Although important in all settings, these rights are especially significant within
the context of universities, ‘where education and learning are advanced through
dialogue and debate.’349 Both rights underpin ‘academic freedom,’350 reinforcing
the notion that ‘universities must continue to be places where difficult topics are
discussed and where people, however controversial their views, should be
allowed to speak within the law, and their views challenged openly.’351
However, there have been repeated and high-profile claims that freedom of
speech in universities is under attack,352 with warnings of ‘a “creeping culture of
censorship” on university campuses.’353 Moreover, the media have reported
controversies over speakers at universities, or about academics, with concerns
that legal speech is being intentionally impeded by ‘masked protest, intimidatory
filming [and] physical disruption.’354 Parliamentarians and the Government have
raised concerns, with a recent report into freedom of speech in universities by
Parliament’s Joint Committee on Human Rights (‘JCHR’) illustrating ‘serious
concerns over barriers to free speech.’355
Against this backdrop, these sections examine the role and responsibilities
that universities and student unions in England have regarding promoting
freedom of speech and the right to protest within and outside their campuses. It
will first assess the legal framework governing freedom of speech and the right
to protest in universities. Following this examination, it will evaluate the extent
to which these rights are being complied with at universities, concluding that a
number of factors are limiting freedom of speech and the right to protest on
university campuses. These inhibiting factors will be analysed in greater depth to
demonstrate how institutions are failing to fulfil their role and responsibilities in
promoting freedom of speech and the right to protest. Finally, these sections
conclude that the ‘complex web’356 of regulations and guidance currently

348 'Free Speech: Guidance for Universities and Students Organising Events' (Publications.parliament.uk,
2018) <https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/589/589-annex.pdf>
accessed 1 June 2018.
349 'Freedom of Speech in Universities' (Publications.parliament.uk, 2018)
<https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/589/58902.htm> accessed 1
June 2018.
350 Ibid.
351 'Free Speech in Universities' (Universitiesuk.ac.uk, 2018)
<https://www.universitiesuk.ac.uk/news/Pages/Free-speech-in-universities.aspx> accessed 1 June
2018.
352 (n 3.)
353 'Intolerance' Risk to Campus Free Speech' (BBC News, 2018)
<http://www.bbc.co.uk/news/education-43544546> accessed 1 June 2018.
354 ibid.
355 'Serious Barriers Limit Free Speech in Universities - News From Parliament' (UK Parliament, 2018)
<https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-
committee/news-parliament-2017/freedom-of-speech-universities-report-17-19/> accessed 1 June
2018.
356 'Letter From Minister Of State For Universities To The Chair Regarding Free Speech Summit'
(Parliament.uk, 2018) <https://www.parliament.uk/documents/joint-committees/human-
rights/correspondence/2017-19/SG-Letter-free-speech-summit.pdf> accessed 1 June 2018.
governing free speech and the right to protest on university campuses be
‘replaced by one clear set of guidelines for both students and institutions.’ 357
Above all, such guidance should outline ‘core principles’358 for securing and
upholding free speech and the right to protest, provide clarity and prevent
‘“bureaucrats or wreckers on campus”’359 from blocking ‘discussion of
unfashionable views.’360 Only then can ‘universities, student unions and students
can move forward’361 in a manner which gives due importance to the promotion
of freedom of speech and the right to protest.
As a starting point, it is important to note that these sections have been
deliberately selective in focusing on concerns over barriers to free speech and the
right to protest in universities in England. This is because evidence ‘suggested
that there were more acute concerns’362 relating to free speech and the right to
protest in universities in England than Wales, Scotland and Northern Ireland.
Moreover, the regulatory system ‘operates differently in each jurisdiction, with
different regulators for universities and student unions.’363 Universities in
Scotland and Northern Ireland have ‘different obligations’364 to uphold
principles of free speech than do universities in England and Wales.
8.2 The Legal and Regulatory Framework
8.2.1 Competing Duties
Universities and student unions are ‘subject to a number of sometimes
conflicting duties under the law’365 which have the ‘potential to interfere’366 with
freedom of speech and the right to protest. Under section 43 of the Education
(No.2) Act 1986, universities have a legal obligation ‘to secure free speech within
the law.’367 Moreover, this provision ‘does not require universities to allow or
facilitate speakers to break the law through inciting violence, inciting racial
hatred, or glorifying acts of terrorism.’368 Additionally, the duty ‘requires
institutions to issue and update a code of practice setting out the procedures to
be followed by members, students and employees for the upholding of freedom

357 Richard Adams, 'Universities Minister: One Set Of Guidelines On Free Speech Needed' (the
Guardian, 2018) <https://www.theguardian.com/education/2018/may/03/universities-minister-
one-set-of-guidelines-free-speech-campus> accessed 1 June 2018.
358 ibid.
359 ibid.
360 ibid.
361 (n 3).
362 ibid.
363 ibid.
364 ibid.
365 ibid.
366 ibid.
367 Education (No.2) Act 1986, s 43.
368 (n 3).