In March, The Times reported that universities minister Jo Johnson MP had written to the chief executive of Universities UK, a representative body, drawing attention to their legal duties to promote the freedom of speech. Mr Johnson may have had his brother, Boris, in mind: in the heat of the Brexit campaign, he was “no platformed” at Kings College London after he authored a column referring to Barack Obama’s Kenyan ancestry.

No platforming is the policy of refusing to allow certain individuals to speak. It is one of a variety of measures adopted by some universities that critics say have had a chilling effect on freedom of speech; safe spaces, trigger warnings, academic boycotts, are others.

Section 43 of the Education Act 1986 provides that every individual involved in the government of a university must take “such steps as are reasonably practicable” to ensure that freedom of speech within the law is secured for students, employees, and visiting speakers. This includes the duty to ensure that the use of any premises of the university is not denied to anyone on any ground connected with the beliefs or views of that individual or of any member of that body, or their policy or objectives. Section 202 of the Education Reform Act 1988 provides that university commissioners must have regard to the need to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions. The first line of the first section of the new Higher Education and Research Bill, which had its third reading in the House of Lords on 4 April 2017, provides that “UK universities are autonomous institutions and must uphold the principles of academic freedom and freedom of speech.” The second provides that they “must ensure that they promote freedom of thought and expression.”

Even on the current law, we consider that universities which permit no platforming, especially in its more extreme manifestations, might not be said to be discharging their legal duty to do all that is reasonably practicable to ensure freedom of speech within the law. Universities should use their disciplinary powers against students who try to prevent certain individuals from speaking; disrupt organised attempts to intimidate controversial speakers; withdraw funding from events or groups that run contrary to these principles, and prohibit them from using university premises; and actively promote tolerance of challenging ideas as an essential of university culture. When the Bill receives Royal Assent later this year, the law will be firmly on the side of freedom of speech.

Already though, when these issues have been considered by the courts, they have outpaced public opinion in defending the rights of educational institutions to offend. In December 2013 there was an outcry when it was suggested by Universities UK that religious speakers on university campuses could require gender segregation in their lecture halls. But in a recent judgment (X School v HM Chief Inspector of Education, Children’s Services and Skills), Mr Justice Jay held that there was nothing wrong with gender dividing an otherwise co-educational school.

There are a number of factors tending to pull in the opposite direction. First, it is only freedom of speech “within the law” that must be promoted. But that is a high threshold: it only excludes incitement or other forms of criminal speech, defamation, or unjustified invasions of privacy. Second, the right to protest against a controversial speaker is an aspect of the freedom of speech, which must be protected. Universities UK advise that students are well within their rights to draft petitions and stage peaceful protest, but that where the actions of protestors move to systematic attempts to prevent a speaker being able to access a venue, or to shout down or entirely disrupt an event, or to intimidate speakers and event attendees, universities are able to use disciplinary measures against students or staff to secure freedom of speech. We think that that strikes the balance correctly. Third, there is the inherent difficulty in engineering cultural change, especially through legislation. But, as the conscience of the nation, universities may be best placed to achieve it.

By Fenella Morris QC and Ben Tankel of 39 Essex Chambers.

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