From being taught respect for statues to respecting a statutory tort, there is always something going on in Britain’s universities. The new tort that the education secretary wants parliament to create would allow individuals to claim compensation from higher education colleges that had failed to support free speech. Introducing his proposals last month, Gavin Williamson said they were needed because some education providers had actively encroached on freedom of expression.
Section 43 of the Education (No 2) Act 1986 requires those who run higher educational establishments to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers’. That includes making sure that speakers are not excluded from college or student union premises because of their views or beliefs.
Failure to comply with these duties can be challenged by way of judicial review. But that is not a practicable solution for most people. Claims cannot be brought against student unions because they are not public bodies. Damages are not awarded unless there is another cause of action.
So the government is proposing a new tort that would allow compensation claims by individuals who have suffered loss because of a breach of the section 43 duty. Claimants could include students who had been suspended or expelled from courses because of their views; organisers of a cancelled event; visiting speakers who had been disinvited or ‘no-platformed’; and academic staff disciplined because of their views. The duty to secure free speech would be extended to student union organisers.
Some people may find it hard to distinguish between remarks that must be protected and comments that should not be permitted
Freedom of expression rightly protects remarks that offend, shock or disturb. But speech that incites hatred, harassment or violence may not be ‘within the law’, as section 43 puts it. The government says a balance must be struck. But that is the wrong metaphor: it is a line that must be drawn. Student leaders, college authorities and, if necessary, the courts will have to decide whether or not specific remarks were lawful. They do not have to be balanced against other comments made by the same individual or by others.
How, then, can we draw the line between lawful and unlawful speech? Take antisemitism, currently a major concern in some colleges and universities.
Professor David Miller (pictured), a sociology lecturer at the University of Bristol, has accused the university’s Jewish society and the Union of Jewish Students of taking part in a ‘campaign of censorship’ that ‘renders Arab and Muslim students, as well as anti-Zionist Jewish students, particularly unsafe’. Calling for ‘the end of Zionism’, Miller asserted that Jewish students were being used as ‘political pawns by a violent, racist foreign regime’.
Calls for Miller’s dismissal came from the Board of Deputies of British Jews, among others. In response, the university said it was speaking to students and academics’ representatives about how it could address student concerns while protecting the rights of staff. ‘We do not endorse the comments made by Professor Miller about our Jewish students,’ the university added.
The Jewish Chronicle said that Miller had no place on any campus. ‘When academics move from research and inquiry, however controversial, to what amounts to intimidation, attacking one group of students, a line is crossed.’
But Stephen Pollard, the newspaper’s editor, also defended the right of an Oxford college to allow the filmmaker Ken Loach to speak about his work. The Board of Deputies had argued that Loach’s invitation should have been withdrawn because of his known views.
The distinction between opinions and intimidation was well made in a powerful and erudite foreword to the government’s proposals that appears above Williamson’s signature. ‘A shocking finding from a recent study by King’s College London was that a quarter of students saw violence as an acceptable response to some forms of speech,’ it says, ‘and indeed we have seen this played out in the appalling scenes in London, when Jewish societies invited speakers who other students did not approve of.’ On the other hand, the foreword adds, views that were widely criticised in their time as deeply offensive and immoral are now firmly accepted as established wisdom.
The Law Commission is currently considering the boundaries of free speech as part of a wider review of hate crime. But the government’s law reform advisers are not proposing significant changes to the test for criminal behaviour, which catches words, behaviour or material that are intended or likely to stir up hatred – as opposed to merely hurting someone’s feelings or giving offence.
Some people may find it hard to distinguish between remarks that must be protected and comments that should not be permitted. Drawing the line between claims that can be refuted and harassment that intimidates others may require careful analysis. But is that really too much to expect of a university?