INTRODUCTION

1. Index on Censorship (“Index”) is a non-profit organisation that campaigns for and defends free expression worldwide, championing journalists and media workers, including through publication of censored work by writers and artists in its eponymous flagship magazine and on its website, and through the Mapping Media Freedom project and the annual Freedom of Expression Awards and Fellowship. Index seeks to raise awareness about threats to free expression and the values of free speech, and to promote debate around these issues, and is currently undertaking a project looking at the issue of free speech at colleges and universities around the world. Index approaches freedom of expression at the level of principle, without affiliation to a particular political viewpoint.

2. In this submission Index seeks to set out its experiences and note its concerns relevant to the Joint Committee on Human Rights’ (“the Committee”) call for evidence, and to express Index’s keen interest in this subject. This submission has been prepared by Index with assistance from Caoilfhionn Gallagher QC, Jonathan Price and Keina Yoshida, barristers at Doughty Street Chambers. Index is willing to give oral evidence if the Committee would find that of assistance, and / or to provide more detail underpinning the summary provided in this short evidence.

3. Index has become increasingly concerned at the suppression of free speech in universities.  It considers that free speech is curbed by Government legislation, such as that underpinning the Prevent programme, but also that it has been curtailed by institutions and students themselves. A new vocabulary has emerged, including words such as “safe spaces”, “micro-aggression”, and “trigger warnings” to describe practices which have been developed in universities to navigate the difficult question of bullying and inclusion. At the same time, students’ unions have followed their US counterparts by attempting to restrict some forms of speech on campus which they find offensive, which is sometimes referred to as “no-platforming”. It is important to note that demonstrating against speakers and no-platforming have been practiced in the UK since the 1960s. The British anti-apartheid movement, for instance, targeted students’ unions in the 1960s and in 1970 the NUS called for a total cultural, sporting and academic boycott. The policy of no-platforming developed in the 1970s to stop racist and fascist speakers, and debates around its use continue today. The historical context is important as it demonstrates that debates around academic freedom and free expression on campus have a long tradition in the UK. It also contextualizes the growing concerns about restrictions of freedom of expression on campus.

4. Index strongly believes that university campuses are important spaces where views should be debated, opposed and challenged and that the limits to free speech on campus are indicative of restrictions to freedom of speech in society more generally. It is greatly troubled by the evidence that free speech is being suppressed in universities, contrary to the statutory duties of universities and to international human rights standards. In the context of this jurisdiction, Index has drawn attention to the incoherence of the Government’s approach to freedom of expression and has questioned whether the duties imposed on universities, such as monitoring students under the Prevent programme, are compatible with the statutory duty under the Education Act 1986. It has also questioned whether free speech is in jeopardy following a number of concrete incidents at universities across the country.

a) Is Freedom of Speech on Campus in Jeopardy?

5. Index has gathered empirical evidence of restrictions on free speech on campus. Index strongly defends freedom of speech, which means the right to question, disagree with and even condemn what others say. There is a difference between censure and censorship and this is an important line to draw. Freedom of speech on campus is complicated by the number and variety of actors involved (including students, academic staff, administrators, student union, government, the media) and by the spaces affected (in the classroom, on campus, on websites or social media pages set up by university students, student union spaces, student clubs, etc).

6. Speech must be countered with speech so that ideas are explored, viewpoints challenged, and arguments refined. No-platforming, which seeks to stop certain people speaking on the grounds that speakers hold views that are offensive, goes against this principle. The NUS has a policy that states that unions “have a right to refuse individuals and groups who threaten the safe environment students’ unions provide for their members.” This builds on a policy adopted in 1974 to combat the influence of “openly racist and fascist organisations” and names six individuals and groups where representatives are prevented from sharing a platform. One of these organisations, Al-Muhajiron is a proscribed terror organisation under UK law.  Individual university unions and student groups are not bound by this list and can decide their own. In reality no platforming has been extended to other speakers who unions find offensive. For example, Julie Bindel was no-platformed by Manchester Students Union for her views on trans men and women, and there have been calls at universities to no-platform Germaine Greer and Peter Tatchell. The student-led practice of no-platforming and its extension beyond fascist and racist groups and speakers is one of the highly mediatised reasons as to how free speech is being suppressed on campus.

7. In addition to no-platforming, speakers and students have cited a number of other reasons which contribute to suppression of freedom of speech on campus:

1. Safe space policies: One of the predominant arguments for safe spaces is that these spaces enhance freedom of speech for minority groups, whose voices are usually undermined by traditional and dominant narratives. However, there are examples of how these policies have resulted in the chilling of free speech on campus or the disrupting of events, for example, Maryam Namazie’s speech at Goldsmiths in 2015.

2. Certain speakers and events have been cancelled in the UK due to safety concerns. For example, Middlesex University took the decision to cancel Richard Falk’s  planned lecture on its campus due to safety concerns. This follows a cancelled conference on the legitimacy of the state of Israel at Southampton University. The High Court dismissed a challenge to that cancellation. The event had to take place in Ireland.  Both Israeli and pro-Palestinian speaking events have been closed down on university campuses and some of these events have been hosted elsewhere.

3. Index has also found that universities have become risk averse. Universities have worried for instance about how a fancy dress party where someone wears a Nazi uniform might go against their equality policies, upset the wider student body and discourage minority students from applying. Student opposition to controversial speakers has also led universities to err on the side of caution.

4. We have also found that the student union of City University has attempted to ban tabloid newspapers on campus, and some universities have commercial bans on selling tabloid newspapers.

8. While there are genuine debates going on in British universities about balancing the role of free speech and the protection of minorities, some elements of the press and media have been quick to criticise “censorious students” and have misreported the facts, for example a Telegraph article claimed that UCL students had started a campaign to remove references to the Victorian scientist Sir Francis Galton, however it turned out that this narrative was unfounded.

              b) Prevent: creating incoherence on campus

9. A significant way in which freedom of expression is impeded on campus is through the Government’s Prevent duty. This duty interacts with Section 43 of the Education (No 2) Act 1986 which governs free speech on campus today. Section 43 places a statutory duty on the higher education sector to uphold freedom of speech in their institutions as far as is practical within the law.  Higher education institutions also have to adhere to the Public Order Act 1986 which contains provisions on the prevention of racial and religious hatred. Universities and colleges must also comply with the Equality Act 2010 which prevents discrimination, and the 1998 Human Rights Act which further enshrines freedom of speech.

10. Furthermore, students’ unions are governed by the 1994 Education Act which restricts their campaigning ability. Students’ unions are also now educational charities which imposes further legal obligations on balanced speaker panels and the kinds of activities which they can undertake.

11. Academic Freedom is also a fundamental right enshrined in European human rights law. Article 13 of the Charter of Fundamental Rights of the European Union expressly enumerates this right. The Council of Europe has issued guidance in the form of Recommendation 1762 (2006), in which it has stated that “academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction” and that “history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation”. Universities are thus recognised as an important bastion of debate, intellect and freedom of expression and the European Court of Human Rights has reiterated on a number of cases the academics expressing informed opinions within their area of expertise falls within the utmost protection under Article 10, even where their remarks are offensive.[1]

12. The above legislation and standards should guarantee rights to free speech on UK campuses, whilst giving powers to university authorities and students’ unions to limit speech, but in circumstances which ought to be the exception and not the norm. In addition to the legislation above, there is a statutory duty on universities to tackle radicalisation in general through the Counter Terrorism and Security Act 2015. The guidance includes this catch all phrase that universities must make sure their students or staff are not “drawn into terrorism, which includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit. It is condition of funding that all further education and independent training providers must comply with relevant legislation and any statutory responsibilities associated with the delivery of education and safeguarding of learners”.

13. Although debates on freedom of expression are not new, the Prevent duty creates a new and limiting dimension to speech on campus. Index considers that the Prevent duty fails to adequately protect freedom of expression and disproportionately affects and infringes the rights of students and academics on campus.

15 December 2017