Professor Alison Scott-Baumann is currently leading an AHRC research project on Islam on campus in relation to gender, radicalisation and interreligious understanding in British higher education. Here, with Research Assistant Simon Perfect, who is researching student unions and the Charity Commission, she explains the three core issues when discussing freedom of speech on campus.
What happens when there are conflicting views?
A controversial figure has been invited to speak at SOAS by SOAS students. In this case, as representative of the Israeli government he holds the power in any situation that relates to the occupied territories. He will present a policy-led viewpoint based upon a particular view of Israel. He will not represent the views of Palestinians.
This poses legal and ethical dilemmas for the university management. On the legal side, they are required to uphold freedom of speech within the law on its premises as far as is reasonably practicable(1). But under charity law, they must also protect the university’s reputation(2) – in this case a lose-lose situation, because either upholding or rejecting the request for this speaker will inevitably damage the university’s reputation in the eyes of different sections of the public. This creates tension between acting in accordance with the views of the (presumed) majority of students and staff (rejecting the speaker request) and protecting the rights of the minority of supportive students to participate fully in university life and have their interests represented.
Where do we go from here? There should be a balanced approach if we are to ensure fairness. This can only be achieved by running a series of events, after he has spoken at SOAS, to make the facts accessible, despite the fact that the website Safe Campus Communities recently listed ‘contentious’ topics: “Vocal support for Palestine”, “Opposition to Israeli settlements in Gaza”, “Criticism of wars in the Middle East” “Rise of terrorism as a result of foreign policy” and “Opposition to Prevent”. Safe Campus Communities is the name of the website set up by Universities UK to provide sector guidance on Prevent, the counter-terror package. The website contains assertions that freedom of speech around such topics must be allowed, protected and exercised. However, the topic list indicates risks in being interested in such matters and the ignorance of these topics does not inspire confidence (there are no Israeli settlements in Gaza)(3). Asking universities to be wary of discussion of settlements goes against the legal protection of free speech.
If this speaker is given a platform at SOAS and given a hearing, politely and calmly, we can move on to the next step, which is to say ‘we have heard you and now we will continue to arrange to hear other viewpoints.’ If those subsequent arrangements are cancelled, then we will have no balanced position on this issue. If this talk is cancelled because of safety risks, the speaker will have been denied a voice, which is what happens constantly to Palestinians. Let us hear him.
How can we move forward in the interests of all parties and especially in the interests of those without a voice?
On many British university campuses free speech has become increasingly difficult when it can be labelled and dismissed as ‘political’ , ‘religious’, ‘Islamist’, ‘anti-Semitic’ or related to ‘identity and sexuality.’ (4) This was discussed in a recent high-level conference on freedom of speech in universities, organised by the Centre of Islamic Studies at SOAS and St George’s House, Windsor (see report here). The participants identified a “pincer movement” threatening freedom of speech – emanating from both government policy (supportive of Israel and Prevent) and from student utopian hopes (idealism about no-platforming) (5).
There are big external players involved in a university’s decision-making on issues to do with freedom of speech, including HEFCE and the Charity Commission – the latter of which has been investigating some students’ unions over accusations that they are inviting anti-Semitic external speakers, or are crossing the line into discriminatory and ‘overly political’ activity by supporting the Boycott, Divestment and Sanctions movement. (We are researching the Charity Commission’s role in this and our preliminary findings can be found here, chapter 6.) (6)
There is therefore an urgent need to work with students and staff to investigate how recent government policies and student activism are affecting freedoms at universities: are they justified or are they causing unacceptable danger to critical academic enquiry? We can and must, for the sake of Palestine and Israel, continue to arrange future meetings, as SOAS does so well, to educate.
It also seems likely that the rules of engagement regarding freedom of speech are becoming increasingly uncertain, and that clarity of definitions and protocols is much needed. In the future it is necessary to consider whether it is right and reasonable to invite a senior representative of a foreign power to express the contested views of his government on a university campus, with no counter view officially presented.
We must work, united, as university communities to develop our ability to detect false, legally suspect or overly emotive arguments and how to respond to them constructively. SOAS has a national and international role to play; we have the staff and students of all faiths and of none, who can guide the university sector in protecting and modulating two contrasting privileges: the right to speak one’s mind and our responsibility to others, especially those who are allowed no voice.
What is the legal position of free speech on campus?
Institutions of higher education must ensure that, as far as reasonably practicable, freedom of speech within the law is ensured for all students, staff and visiting speakers and the use of university premises is not denied to anyone on any ground connected with their beliefs, views, policy or objectives (7). This positive and proactive legal duty instructs the university governing body to uphold freedom of speech. Within the European Convention on Human Rights, Articles 9, 10 and 11 guarantee, respectively, the right to freedom of thought, conscience and religion, including the right to manifest one’s religion or beliefs; the right to freedom of expression; and the right to freedom of assembly and association. Article 10 includes the right to “impart information and ideas without interference by public authority”. These rights can be constrained only under limited circumstances. (8)
A further legal factor is that universities, and separately, students’ unions, are charities and subject to charity law. Charity trustees are required to protect the reputation of their charity, and in the case of requests for external speakers who may be deemed ‘controversial’, they need to demonstrate that they have considered how to mitigate the risk that hosting the speaker will bring the charity into disrepute. (9)
Despite the strength of the law to back free speech, there is evidence to suggest that British universities are experiencing a curtailing of freedom of speech and academic freedoms. An essential element in free speech is having the right to challenge another person’s views, and this is only possible when there is free and open debate.
(1) Education (No. 2) Act (1986). London: HMSO, s. 43(1, 2). The Education (No. 2) Act’s requirement for universities to uphold freedom of speech is on the university governing body, rather than on students’ unions. However, it is currently unclear whether a students’ union would count legally as a public authority subject to the European Convention on Human Rights; if so, then the union would be required to uphold freedom of expression under Article 10 of the Convention.
(2) See Charity Commission for England and Wales (2015) The Essential Trustee: What You Need to Know, What You Need to Do (CC3). London: Charity Commission. https://www.gov.uk/government/publications/theessential-trustee-what-you-need-to-know-cc3; http://www.bbc.co.uk/news/uk-39719314
(3) http://www.safecampuscommunities.ac.uk/ Exchanging knowledge. Helping prevent violent extremism and radicalisation
(4) In relation to this, the IHRA definition of anti-semitism, which has been adopted by the UK government, has been seen by some as problematic – see an opinion from lawyer Hugh Tomlinson QC: http://freespeechonisrael.org.uk/ihra-opinion/
(7) Education (No. 2) Act (1986). London: HMSO, s. 43(1, 2).
(8) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) arts. 9-11.
(9) Charity Commission for England and Wales (2015) The Essential Trustee.