LSE Freedom Of Speech Briefing

1. LSE Freedom Of Speech Briefing Julian Sladdin 29 March 2017

2. Why am I here ?! • Freedom of speech part of democratic rights in UK and protected by Human Rights Act • Universities have particular legal obligations to promote free speech both for academics and students • Covers student unions and events on campus or premises used by university or the SU • Free speech may not be entirely a free for all!

3. Crisis….What crisis? • “Academia’s lurch to the left raises concerns for campus free speech.” (The Times 2 March 2017) • “Students can’t be allowed to curb free speech”. (The Times 13 Feb. 2017) • “Student Union ‘tries to gag own leaders”. (The Times 10 March 2017) • “More than 9 in 10 UK universities restrict free speech on campus, report claims”. (Independent 13 Feb. 2017) • “At some British universities freedom of speech comes at a price.” (Huffington Post 8 March 2017) • Jo Johnson letter to UUK – 21 March 2017

4. Crisis, what crisis…?! • Why is freedom of speech a big issue for HE? • What duties does an HE have? • How does Prevent affect this? • How does this affect the SU? • How does it work in practice? • This should be simple……shouldn’t it?

5. What do we mean by free speech in HE context? • Section 202, Education Reform Act 1988 • “Academic staff have freedom within the lawto 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 institution”. • Section 43, Education Act 1986 • “Persons concerned in the government of an institution in the higher or further education sector have a duty to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers.”

6. How does the HE Duty Work in Practice? • Section 43, Education Act 1986 • “This includes the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with - (a) the beliefs or views of that individual or any member of that body; or (b) the policy or objectives of that body.” • Universities must issue and keep up to date a code of practice setting out: • (a) the procedures to be followed when organizing meetings or other activities; and • (b) the conduct required • Ensure compliance with the code of practice.

7. What Does, “…So Far As Reasonably Practicable…” ,Mean? (1) • R v University of Liverpool, Ex parte Caesar-Gordon [1990]is the only case (and hence leading case) on the interpretation and application of section 43 by universities, specifically in relation to guest speakers. • Judicial review of the University of Liverpool’s decisions to withdraw permission for a meeting to be addressed by a South African diplomat in 1988 for fears about public order at the meeting and in the surrounding residential areas (Toxeth, high ethnic minority). • Security had liaised with Merseyside Police force which had advised against hosting the event.

8. What Does, “…So Far As Reasonably Practicable…” ,Mean? (2) • On the true construction of section 43 university was not entitled to take into account threats of public disorder outside the university precincts by persons not within its control. • But, section 43 is qualified. The university was not acting ultra vires in imposing conditions restricting publicity and admission to meetings and in reserving the right to charge the association with the costs of security where such conditions were considered necessary in the interests of free speech and good order • “Had they confined their reasons when refusing permission for the meetings to take place to the risk of disorder on university premises and among university members, it may be that no objection could have been taken … Where, however, the threat was of public disorder without the university, then, unless the threat was posed by members of the university, the matter was, in our opinion, entirely for the police”.

9. Other Considerations for HEIs • HEIs’ commitment to freedom of speech and the advancement of knowledge means that they represent an arena for challenging extremist views and ideologies. • Further, young people continue to make up a disproportionately high number of those arrested in the UK for terrorist-related offences and of those who are travelling to join terrorist organisations in Syria and Iraq.

10. However….is freedom of expression not a fundamental right ? • Article 10 of the European Convention of Human Rights • Incorporated into UK law by the Human Rights Act 1988 • Everyone has the right to freedom of expression. Includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. • Extends to expression of views which may shock or disturb or offend deeply held views or beliefs of others

11. Can a fundamental right be qualified? • The exercise of these freedoms, since it carries with it duties and responsibilities, 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. • Limitations must be: • clearly set out in law • Necessary in a democratic society • Proportionate and for a legitimate aim • Discrimination, harassment and inciting hatred/violence need to be balanced against rights of individual

12. Free speech not qualified when…? • Should not curtail rights simply because others find statements offensive or insulting • Even deeply held beliefs, opinions and ideas should not be immune from criticism or satire • Democracy depends on people being able to express, debate and criticise opposing viewpoints • However….all depends on factual matrix and context! • Some important restrictions which HEIs must be aware of….

13. Permitted Restrictions • The Public Meetings Act 1908 • The Public Order Act 1986- criminal offences that can be committed by speech and conduct such as fear or provocation of violence, or causing harassment, alarm, or distress. • Terrorism Act 2000/2006- define criminal activities of inciting acts of terrorism, glorification of terrorism, and disseminating terrorist publications belonging to or supporting proscribed organisations. • Racial & Religious Hatred Act 2006- make it an offence to possess, publish or distribute material which is threatening, where the intention is to stir up religious or racial hatred. • Counter Terrorism and Security Act 2015 – Prevent agenda • Protection of reputation (Defamation Act 2013) and avoiding discrimination and harassment (Equality Act 2010)

14. Treason….?! • Key legislation qualifying rights still includes: • Treason Act 1351 • Still valid, but in 2004, the House of Lords was asked to clarify whether the Treason Felony Act 1848 could be used to prosecute the Guardian for publishing articles advocating a republican form of government. • Lord Scott: “it is plain as a pike staff … that no one who advocates the peaceful abolition of the monarchy and its replacement by a republican form of government is at risk of prosecution”

15. Not a health and safety issue, surely? • Health and Safety legislation (obligation to ensure the health and safety and welfare of its employees, non-University employed staff and students; risk assessments).

16. So what guidance is out there? • “Promoting Good Campus Relations: Dealing with Hate Crimes and Intolerance” (UUK 2005) • “Promoting Good Campus Relations , Fostering Shared Values and Preventing Violent Extremism in Universities and Higher Education Colleges ( DfIUS 2007) • Universities UK: “Freedom of Speech on Campus: Rights and Responsibilities in UK Universities” (2011). • “Promoting Good Relations on Campus : A Guide For Higher and Further Education” (Equality Challenge Unit March 2013) • “External Speakers in Higher Education” (UUK 2013) • “Gender Segregation at Events and Meetings “ (EHRC 2014)

17. Counter-Terrorism and Security Act 2015 Section 26(1) of the Counter-Terrorism and Security Act 2015 imposes a duty on “specified authorities”, when exercising their functions, tohave due regard to the need to prevent people from being drawn into terrorism. This duty came into force for HEI’s on 21 September 2015.

18. What do the terms mean? Prevent Guidance Definitions:- • Terrorism • Extremism • Radicalisation • Safeguarding • Vulnerability

19. Anti- semitism - defined • The definition agreed by the International Holocaust Remembrance Alliance (“IHRA”) was adopted by the UK in 2016.  It states: • “Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities”. • General message from the Universities Minister stresses that institutions must have ‘robust’ policies in place to comply with the law and ‘investigate and swiftly address hate crime, including any anti-Semitic incidents that are reported’ and warning that events (i.e. Israel Apartheid Week) must be ‘properly handled’,toensure that our values, expectations and laws are not violated’.

20. Anti-semitism practical issues • Definition itself is not legally binding. • An earlier version of the definition was used by police in the UK and forms part of the National Police Chief’s Council Hate Crime Manual for officers.  • The definition can now be used as a tool for criminal justice agencies and other public bodies, such as councils and universities. • Additional caveats were recommended to the Government to ensure that freedom of speech is maintained.  However, the Government did not adopt these and decided that: “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic” (already within the definition) was sufficient. • Criticism of Israel similar to that levelled against any other country would not be regarded as anti-Semitic under the IHRA definition However anything beyond this (would likely fall within the scope of the definition. • ‘Zionism’ as a concept is still a topic for academic and political debate.

21. Managing Events/Speakers • Key issues to consider at the outset when a request is received or complaint made: • Is the speaker likely to incite/stir up racial or religious hatred and how? • Is the speaker’s attendance/conduct likely to discriminate against staff or students, or lead to an environment that is intimidating, hostile, degrading, humiliating or offensive? • Is it likely to cause others to fear that violence will be used against them? • Is the speaker’s presence likely to cause public disorder or threat to safety on campus? • Is there likely to be a threat to public safety as a result of the speaker’s presence on campus? • LSE will need to make sure decision is reasonable and proportionate as the rights of individuals may be restricted.

22. Regulating speakers • In order to answer these questions, also consider the following contextual areas: • the speaker’s history and the organisation they represent • the impact such a visit will have on campus • the impact such a visit will have on community relations and the wider community • guidance documents in the LSE such as race equality policy and harassment etc. • Any Prevent considerations?

23. LSE Code of Practice • Introduced under Education (no 2) Act 1986 S.43 • Sets out rights and restrictions • Sets out terms of Free Speech Group • Sets out procedures for event booking • Sets out requirements of LSE sponsor of events • Sets out discussions that will take place and possible conditions • Sets out conduct expected at events • Sets out appeals process • Sets out sanctions for breach

24. LSE Website Guidance • Controversy, Security and Free Speech • helpful practical guidance • Advice on planning • Advice on chairing • Advice on access and security • LSE – Public Events Initial Security Risk Assessment Questionnaire

25. Partnership • LSE Free Speech Group • LSESU • LSESU societies • LSE security • The Police • BIS Prevent coordinator – where appropriate

26. Students’ Union and Societies • Have regard to the Code of Practice on Free Speech, and LSE Statutory duties (including Prevent duty) in the context of LSESU’s relationship and interactions with the LSE and LSESU societies. • You need to clearly communicate and agree the policies setting out the activities that are or are not allowed to take place on campus and any policies regarding online activity directly related to the LSE. • LSESU must police events in conjunction with LSE

27. Student and Staff Awareness • Prevent Duty • Action Plan • Policies • Process for reporting concerns

28. Your Role In Free Speech • Every day- management of societies and events • Supporting Events • Reporting Internally • Liaision with LSE • Liaision with students – awareness/good practice

29. Supporting Events: Pre-event • Balance of Freedoms v risk of unlawful/illegal acts • Event policies and procedures for speakers and events to apply to all staff, students and visitors • Assessment and rating risks associated with any planned events • Mitigation of risk. Where appropriate and legal to do so, an institution should also have procedures in place for the sharing of information about speakers with other institutions and partners.

30. Supporting Events: The Event • Business as usual • Mitigations will be in place • Chair / agreed decision maker • Report concerns to Prevent co-ordinator

31. Your Role • No change day-to-day • Report any concerns • Decision makers will take it from there • Any questions?