Higher education providers are open environments where academic freedom and freedom of speech are fundamental to their functioning; where debate, challenge and dissent are not only permitted but expected, and where controversial and offensive ideas are likely to be advanced.
But all freedoms have limits imposed by law in order to protect the rights and freedoms of others. When making decisions around freedom of speech and external speakers, providers should have clear policies and procedures in place and take into account contextual factors.
Regulating Freedom of Speech
English and Welsh HE providers have a legal duty to protect freedom of speech within the law under s.43 Education Act (2) 1986. This requires them to publish a Code of Practice setting out the procedures to be followed by members, students and employees for upholding free speech.
In England, Office for Students (OfS) regulates Higher Education Providers (HEPs). The Higher Education and Research Act 2017 (HERA) extended the existing freedom of speech duty to all providers registered with the OfS.
OfS’s approach to regulation is outlined in the OfS's regulatory framework, which includes measures put in place to ensure that the governing body of a provider takes such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider. For a more general overview of the approach taken by OfS in this area, please see their page on freedom of speech.
The body responsible for the regulation of HEPs in Wales is the Higher Education Funding Council for Wales (HEFCW). However, though HEPs in Wales are s#mce_temp_url#ubject to the duty to uphold free speech outlined in s.43 Education Act (2) 1986, HEFCW has no regulatory role in ensuring freedom of speech, as outlined in Annex A of the EHRC’s guidance.
Most students’ unions are charities and are therefore regulated by the Charity Commission. For support on how student unions can comply with Charity Commission regulations concerning free speech, please read their guidance ‘Chapter 5 – Protecting charities from abuse for extremist purposes’.
In February 2019, the Equality and Human Rights Commission (EHRC) published a guide on freedom of expression for higher education providers and students’ unions in England and Wales. The downloadable PDF includes: information on relevant laws and legal issues; definitions for terms related to freedom of expression; and case studies around free speech.
For HE providers in need of a practical guide on composing or updating codes of practice relating to freedom of speech, in July 2018 the Higher Education Policy Institute (HEPI) published ‘Cracking the code: A practical guide for university free speech policies’.
In March 2018 the Joint Committee on Human Rights (JCHR) published ‘Free speech: guidance for universities and students organising events’. The guidance outlines the limitations on free speech in UK law, addresses issues around the communications of events or topics for debate, as well as providing further support.
Other helpful guidance includes:
- UUK guidance (2013): External speakers in higher education institutions
- UUK guidance (2011): Freedom of speech on campus: rights and responsibilities for UK universities
- NUS guidance (2018): Managing the risks associated with external speakers
The freedom of speech guidance published in February 2019 by the Equality and Human Rights Commission (EHRC) includes several case studies.
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