Freedom of Speech: Unpicking the Proposed Policy

You may have recently heard that the government has been discussing something called freedom of speech in relation particularly to universities and students’ unions. But what is freedom of speech and how will the government’s proposal affect us at Royal Holloway? I’ve pulled together this blog to tell you what we know so far.

In May, the Higher Education (Freedom of Speech) Bill was published by the government and has since been making its way through the parliamentary processes. The bill seeks to implement a range of measures aimed at strengthening and extending existing legislation on freedom of speech and academic freedom in higher education. For those policy geeks out there, it primarily amends the Higher Education and Research Act 2017 but it also makes amendments to the Counter-Terrorism and Security Act 2015, the Higher Education Act 2004 and the Education (No. 2) Act 1986.

So what is freedom of speech?

Freedom of speech can be broadly defined as the freedom to express beliefs, views and ideas without adverse consequences. In the policy paper produced by the government in advance of the bill, the government recognises that freedom of speech is a human right but it is not absolutely given in all circumstances. Significantly, the right to free speech in higher education (under section 43) applies only to free speech within the law.

This in itself is tricky as there is no specific law or single definition of ‘hate speech’. The most relevant legislation which covers this is contained within the Public Order Act 1986 which defines hate speech as “threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress.” However, there are different legal definitions around the types of hatred incited and not all would be criminalised in the same way.

In the policy paper, the government states that “potential for offence caused by speech should not in itself be used to prevent lawful freedom of speech, but equally freedom of speech should not be used as an excuse not to tackle instances of unlawful harassment or to offer a platform for speech that is unlawful, including speech which incites violence.”

Simple, right?

What, when, why?

It’s currently unclear when the bill is expected to come into force or how much might change but it is clear that, if it passes, it will fundamentally change the way that students’ unions across the country must operate in relation to freedom of speech and we will need to be ready for this.

There is no doubt that it is a controversial piece of legislation in the higher education sector and there is currently much uncertainty around how some of the requirements can be practicably applied. For example, in its current guise, it places significant importance on universities and students’ unions to ensure that guest speaker events go ahead, irrespective of resource requirements, and individuals have the right to seek compensation through the courts if it is deemed that freedom of speech duties have been breached. Essentially, we may be bound to run an event even if we consider it to be too financially costly to run in a safe way.  

It also sets out that if a speaker suffers “adverse consequences” at the hands of any staff, students or members of the public, the University or Students’ Union could be considered to have breached its duty to secure their free speech. However, those objecting are also entitled to exercise their freedom of speech without adverse consequences, and so universities and students’ unions are placed in a tricky situation if they do or do not take action to curtail protest against a planned speaker.

For those of you interested in the wider higher education sector, the bill also means that students’ unions would have to be regulated by the Office for Students (OfS) in respect of freedom of speech (over and above the Charity Commission, who we currently report to as a charity). It is currently unclear at present how this might actually work in practice. 

What does this mean for RHSU?

Whether we as the Students’ Union or students as a democratic body agree with the new bill or not, we will be legally compelled as a charitable organisation to follow the law when it is passed. To ensure we comply with the law on hate speech we would have an obligation to prohibit hate speech and incitement, but equally, we also would have a legal obligation to promote and support freedom of speech. In essence, it is currently very confusing and unclear where those lines would be drawn.

As we know, freedom of speech and no platforming is an incredibly emotive subject for many students and as a Union, we have seen passionate debate on both sides of the table over the last few years. In 2019 an invitation to a controversial speaker by one of our student groups invoked a referendum on whether or not the Students’ Union should introduce a ‘No Platforming for Hate Speech’ policy.

The results of this referendum show that opinion amongst the student body is clearly divided, with 54% of students voting in favour of such a policy and 46% against. As a result, the No Platforming for Hate Speech Policy was passed. This new bill would require some unpicking of this Policy to ensure legal compliance, despite it being democratically mandated by the student body. This would need to be done through the Union’s Board of Trustees who have the power to overrule decisions made by referenda on the grounds of financial or legal requirements.

As a Students’ Union, we will be working very closely with the University and with the student body over the next 12 months to ensure that we are both able to comply with the new law when it is implemented, and also protect our students from harm and unlawful hate speech.

If you have any questions about the freedom of speech bill, or our current policy, please contact me at president@su.rhul.ac.uk.