By its very nature, Academic Freedom of Speech is frequently a source of controversy, and a number of recent high profile cases have made it an even hotter topic.
In this article, we talk to James Murray, an employment lawyer and member of Taylor Vinters' higher education team, about the pressures on Academic Freedom of Speech and what both the law and academia could do to protect it.
What does Academic Freedom of Speech actually mean?
Academic Freedom of Speech is intended to ensure that academics have the freedom to express new ideas, even if they challenge orthodox and widely held points of view, since it fosters the discussion and exploration of concepts that can further human understanding.
Why do you feel it's vital to safeguard it?
Academics can propose ideas that push boundaries, question our beliefs and may even be considered by some to be heretical or offensive.
Without the protection of freedom of speech, Galileo was punished for sharing his radical concepts. Whilst Darwin was vilified by some for his theories, we can thank a more enlightened approach to freedom of speech for enabling him to share them and advance how we understand evolution and our place in the world.
Should we be worried about freedom of speech today?
A 2018 report by the House of Commons/House of Lords Joint Committee on Human Rights highlighted the 'chilling' effect on freedom of speech in universities. This has arisen from incidents such as trigger warnings and no platforming, when academics with contentious points of view have faced campaigns to prevent them from taking positions in universities or sharing their theories as guest speakers.
There are two sides to this argument. One says that freedom of speech should allow academics to present challenging ideas, even if people find those ideas unpleasant or deeply offensive. The other side suggests some concepts go too far beyond acceptable limits to be discussed. Holocaust denial is an example that is often cited.
This is a difficult line to tread. Academics and universities are committed to advancing human knowledge, and raising obstacles to freedom of speech could be seen as thwarting progress to greater understanding. Yet Academic Freedom of Speech is a responsibility as well as a right, and care must be taken to ensure it isn't corrupted for immoral or unethical purposes.
That fact that groups such as the Free Speech Union have implemented social media campaigns and crowdfunded legal action to fight what they see as attacks by institutions on academic free speech, suggests that it has become vulnerable.
Doesn't English law protect it?
Yes, but perhaps not as effectively as it might. It's a question of definition - or the lack of it.
Without going into the full legal detail, Section 43 of the Education Act 1986 requires universities to take reasonably practical steps to ensure freedom of speech within the law, including each one establishing its own Code of Practice (COP) to ensure compliance. The Human Rights Act 1998 requires public bodies to comply with the European Convention on Human Rights (ECHR), including its Article 10 right to freedom of expression.
In addition, in 2019 the Equality and Human Rights commission published a guide on freedom of speech, specifically for UK universities and higher education institutions. However, it doesn't give detailed guidance on Academic Freedom of Speech. Nor did the previous year's guidance from the Charity Commission (which regulates some higher education institutions and students' unions).
Faced with this lack of detail and having to deal with trigger warning and no platform disputes, many universities have relied on their own governing statues and codes of practice, and the wording from the 1988 Education Reform Act, which says they must:
"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 key phrase here is "within the law". Universities have to be careful to balance academic freedom with the requirements of legislation such as the 2010 Equality Act, which protects against discrimination and harassment. When deciding to appoint a professor or invite a speaker who is known or alleged to have views that many may find offensive, degrading or likely to incite hatred, they face a tough judgement call. The 'wrong' choice could be very damaging, both to their reputation and in legal claims.
What can universities do?
They'd do well to look to the European Court of Human Rights (ECtHR) which has considered Academic Freedom of Speech more closely and provides more specific answers.
Essentially, it states that academics should enjoy protection if their comments are within their sphere of research and based on their professional expertise and competence. Those comments will not necessarily infringe the human rights of others (as set out in the ECHR) even if the same comments would be an infringement if a non-academic made them.
Balanced against this, is the requirement that academics should still comply with established standards of research ethics and integrity. They could also lose the protection of Academic Freedom of Speech by making certain statements that contravene ECtHR policy, particularly in areas such as racial superiority, Nazism and holocaust denial.
This is fair and just. Allowing academics to make any remarks or research any topics they wished would undermine trust in the principle of Academic Freedom of Speech.
So universities do have a benchmark they can rely on?
Decisions which spark controversies, such as those involving Professor Selina Todd and Dr Jordan Peterson, often come down to how universities, and their detractors, have interpreted the law. By and large, the ECtHR and ECHR positions are very helpful in informing those decisions - but there's a risk that could now be lost.
Post-Brexit politics may still prompt the UK Government to leave the ECHR, jeopardising the ECtHR's case law protection for academics unless it is specifically incorporated into UK legislation. However, the Government made a manifesto pledge to 'strengthen academic freedom and free speech in universities' so we can hope they feel this aspect of the ECtHR law aligns with that.
What else could do the Government do?
Fulfilling this manifesto pledge would also give the Government the opportunity to improve legal certainty around Academic Freedom of Speech.
For example, Section 43 of the Education Act (which I mentioned earlier) is ambiguous in many respects and since a lot of universities base their Code of Practice (COP) on it, their regulations around Academic Freedom of Speech are ambiguous too. The Government could tighten up Section 43, particularly by including a much more explicit reference to Academic Freedom of Speech and setting out stronger protection for it.
There could also be more prescriptive legislation for COPs, plus legislation ensuring that colleges currently regulated by the Charities Commission are also subject to the same Section 43 requirements as the rest of the higher education sector (now overseen by the Office for Students). COPs could also be made binding on student unions, and the Equality Act amended to include academic freedom in decisions on harassment.
Finally, it would be useful to standardise the internal rules across institutions, with a statutory academic freedom clause for all academics' contracts (whether they are teaching or researching), which could also be used to define a code for disputes and tribunals.
What are you hopes for Academic Freedom of Speech?
With all the high profile coverage of recent disputes over Academic Freedom of Speech, it's an ideal time to eliminate the ambiguity and provide clearer definition. This will benefit both those who believe they are defending freedom of speech and those who feel it is being abused.
There's both a need and opportunity for the law to be brought up to date. Whatever political debate that might involve, the overriding consideration must be that the role of Academic Freedom of Speech in expressing, discussing and promoting new ideas, must be protected.
Find out more
This question and answer session is based on James Murray's Submission to the UN Special Rapporteur, which explores the legal arguments around Academic Freedom of Speech and in much greater detail. If you would like advice on Academic Freedom of Speech, please contact James here.
Submission to the UN Special Rapporteur
Academic Freedom of Speech is a fundamental pillar of academic freedom and a subset of the general right to freedom of expression, in particular under Article 10 of the European Convention on Human Rights (ECHR). The Council of Europe and the European Court of Human Rights have both expressly endorsed the importance of Academic Freedom of Speech to democratic society.
Article originally published on 30 April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.