Balancing Freedom of Speech with Other University Obligations: A Practical Guide

Universities play a crucial role in fostering critical debate and encouraging diverse perspectives. However, they must also navigate competing obligations, including legal, ethical, and operational responsibilities. This article explores how universities can balance these duties, focusing on proactive measures to uphold freedom of speech while ensuring inclusivity, safety, and respect for all.

The Freedom of Speech Duty

Universities in the UK have a legal duty to 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 ensuring, so far as is reasonably practicable, that access to university premises is not denied to any individual or group on any ground connected with the beliefs or views of that individual or group; or the policy or objectives of that group.

Unlawful speech is not protected e.g. speech that amounts to harassment, victimisation or discrimination, speech that incites religious or racial hatred or speech that encourages terrorism.

In addition, most higher education providers registered with the Office for Students (OfS) are public bodies under the Human Rights Act 1998 and as such are required to respect freedom of expression as outlined in the European Convention on Human Rights (ECHR). This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The exercise of this right however, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The freedom of speech duty of universities was set to be further enhanced and regulated pursuant to the Higher Education (Freedom of Speech) Act which became law in 2023. However, due to concerns from vulnerable groups about how the rules might harm student welfare, the UK government stopped the implementation of that Act. The Education Secretary will consider options for the Act, including repeal, in the longer term.

Other Key Obligations

Universities must also comply with other legal duties and have various operational responsibilities, which may intersect with freedom of speech. Key obligations include:

  1. Prevent duty: universities must have due regard to the need to prevent individuals from being drawn into terrorism. Some examples of issues in this area are – inviting speakers with controversial or extremist views may raise concerns under the Prevent duty, events focusing on politically sensitive or polarising topics might create tensions or risks of radicalization, activism on campus may become radical, oppressive or violent;
  2. health and safety: universities must ensure, so far as is reasonably practicable, the health, safety and welfare at work of all university employees and to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in the university’s employment who may be affected thereby are not thereby exposed to risks to their health or safety. Some examples of where health and safety risks are having to be assessed and managed are – protests and counterprotests on campus, encampments, events where controversial speakers attend or where controversial topics are debated;
  3. Equality Act 2010 duties: universities must have due regard to the need to (i) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Equality Act, (ii) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and (iii) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. In fulfilling these duties, universities must be mindful that certain types of speech or behaviour can breach these obligations. For example, speech may amount to harassment if it has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person because of, or connected to, one or more of the person’s relevant protected characteristics (for these purposes – age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);
  4. public order offences: whilst universities are not law enforcement bodies, they should be mindful of public order laws and take reasonable steps to prevent the exercise of freedom of speech rights (e.g. lawful protests) from escalating into incitement, violence or disorder.

Balancing Competing Obligations

There is no fixed hierarchy between the above duties. Every case must be judged on its facts. Universities need to demonstrate that they have conscientiously considered the various duties at play and reached a reasonable judgement on whether there are grounds to interfere with the speech in question. Any restrictions on the freedom of speech that a university wants to impose should be reasonable and proportionate.

Proactive Measures for Universities

While decisions to restrict freedom of speech will depend on the facts of each case, universities can proactively take steps to prevent issues and make them easier to manage when they arise.

  1. Policies review: conduct a comprehensive review of all relevant policies and procedures (look beyond any codes on freedom of speech to health and safety policies, student regulations and student and staff disciplinary procedures) in order to:
    • identify lack of clarity – might you need some definitions or examples of unacceptable behaviour. Ensure that policies, codes, and procedures are clearly written and accessible to both young students from diverse backgrounds and seasoned academic and support staff alike;
    • ensure that your commitment to uphold freedom of speech is clearly stated and be clear about universities having freedom to expose students to a range of thoughts and ideas, however controversial; even if some content offends students with protected characteristics (or otherwise), this will not make it unlawful unless it is delivered in a way which results in unlawful harassment or is otherwise unlawful (this view is held by the OfS, the Equality and Human Rights Commission and the European Court of Human Rights);
    • identify and address any gaps – universities are generally not short of policies and procedures but consider if some targeted practical guidelines may help e.g.:
      • guidelines on debating controversial issues – you may wish to encourage organisers of debates to set clear expectations for respectful and constructive dialogue in advance of events. This could include providing guidance on maintaining a supportive environment for all participants and outlining how concerns, such as potentially unlawful speech, can be reported and addressed appropriately;
      • non-exhaustive guidelines for protests – you may wish to provide clear guidelines to support the right to peaceful protest while maintaining the effective functioning of the campus. For example, it could be helpful to clarify that while peaceful demonstrations in designated outdoor areas of the campus are welcome, encampments or prolonged occupations inside university buildings may not be permitted due to considerations such as health and safety, access needs, and the continuity of university operations;
      • social media guidelines for students and staff;
    • ensure alignment – is there any duplication or misalignment, are the policies and guidelines expressly linked to the university’s disciplinary procedures (i.e. do they state that failure to follow them, may constitute misconduct under the university’s disciplinary procedures and that the university may take action under those procedures);
    • consider if benchmarking vis-à-vis other universities in any areas may be helpful – you may identify best practice your institution may want to adopt.
  1. Resources review: assess whether the university has sufficient and appropriately qualified staff to effectively (and promptly) address issues or questions as they arise. For example, are there enough staff with the necessary expertise to investigate complaints, evaluate queries or requests related to proposed events, conduct thorough risk assessments, and manage security arrangements where required.
  1. Consultation and approvals:
    • the reviews outlined above could be completed effectively by a working group with representation from different stakeholder groups (including the student community). This group could also recommend opening up specific points for wider consultation;
    • any recommendations or proposed changes following the reviews may require governing body approval (or other internal approvals) prior to implementation depending on the governance structure of the university. 
  1. Implementation and training: 
    • create a dedicated webpage from which all relevant policies, procedures, guidelines etc. can be accessed easily;
    • publicise these resources through internal communications;
    • roll out training for staff and students on freedom of speech rights and responsibilities;
    • embed freedom of speech topics into the curriculum to build understanding;
    • clearly outline how issues can be reported and how the university will respond, fostering trust in its processes;
    • acknowledge that navigating complex issues may not always lead to perfect outcomes. Where mistakes occur, be transparent about them, share insights gained, and take proactive steps to self-correct. This openness fosters trust and demonstrates a commitment to continuous improvement. 
  1. Pastoral support:
    • provide safe spaces for staff and students such as multicultural centres, multi-faith prayer rooms or meditation spaces;
    • offer counselling with advisors specialising in religious, ethical, or political belief systems;
    • consider offering hotlines and peer support for personal or academic concerns;
    • liaise with your student union to identify and fill gaps in support. 
  1. Broader initiatives:
    • reaffirm your university’s commitment to upholding freedom of speech through senior leadership messaging;
    • articulate a clear vision for your university’s role in navigating freedom of speech and inclusivity. For example, aspire to be a leader in fostering open dialogue, critical thinking, and respectful engagement in an increasingly polarised world, where individuals may be reluctant to engage with opposing views;
    • remind the community of any institutional positions that are not negotiable e.g. maintaining institutional neutrality on political issues;
    • create initiatives to bring together people with diverse views;
    • harness the power of storytelling by encouraging individuals to share their personal experiences and perspectives, creating opportunities for connection and understanding beyond merely debating controversial topics;
    • ensure debates, panels, and workshops are thoughtfully moderated to promote respectful dialogue and constructive engagement. Aim for diverse representation to avoid situations where discussions become unbalanced, or where participants feel singled out or overwhelmed by opposing perspectives. A skilled moderator can help maintain fairness and ensure all voices are heard;
    • maintain regular dialogue with diverse groups to stay informed about current concerns and proactively address them.
  1. Monitoring and revising:
    • monitor for legal precedents and guidance in this area (as well as the experience of other universities);
    • periodically update policies to ensure they continue to reflect current law and best practice.

Conclusion

Balancing competing rights and responsibilities is undeniably challenging, but it is vital for creating an environment where diverse ideas, critical thinking, and respectful debate can thrive. With a proactive and holistic strategy, universities can successfully navigate this complex terrain, fostering a culture that upholds freedom of speech while ensuring inclusivity, safety, and mutual respect for all.

If you want to know more or need assistance, contact Milena Radoycheva.

This article is a general summary of the law as at the date of publication and does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice.

© MR&T Advisory, 1 December 2024

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