The current conflict between Israel and Gaza means it is incumbent on college leaders to familiarise themselves with the legal framework around issues of discrimination, extremism and freedom of speech as they impact campus life.
Colleges have a statutory duty to take reasonably practicable steps to ensure freedom of speech within the law for staff, students and visiting speakers. This is in addition to their duty as public authorities to act in a manner compatible with the European Convention of Human Rights, including the qualified right to freedom of expression.
Neither of these duties were mentioned in the education secretary’s letter to colleges, which focused on duties to prevent harm and ensure safety. This may be because the letter was also addressed to schools, which operate under a different statutory context. Rather than being restricted by concepts of harm and safety, free speech obligations permit colleges to intervene where speech is unlawful, including by taking disciplinary action where proportionate.
Words and context will always be highly relevant, but there are a range of ways in which campus speech could potentially be unlawful.
Hamas is a proscribed organisation under the Terrorism Act 2000. Students and staff may be at risk of committing a range offences by speaking in support of it. These include inviting support for Hamas or expressing supportive opinions regardless of whether these might encourage others to support it. Arranging meetings and protests that appear to support Hamas or its activities is also unlawful. Other offences include glorifying terrorist events that have already occurred.
Colleges may be at risk of breaching their Prevent duty if they don’t take steps to ensure such offences do not occur. The Prevent guidance extends to exposure to non-violent extremism, so colleges may be required to act where speech strays close to support for Hamas or violence more generally.
Incitement and harassment
Speech about the conflict could amount to a public order offence such as incitement to racial or religious hatred or causing harassment, alarm and distress. Similarly, online speech could amount to a communications offence.
Colleges can also intervene where speech constitutes unlawful harassment under the Equality Act. This is unwanted conduct related to a protected characteristic (such as race or religion) that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Where conduct is intended to harass by targeting individuals or groups, then the decision to take action should be straightforward. More problematic is where protest or debate is claimed to have the effect of harassing individuals.
In these cases, the law applies a three-point test:
- Whether the individual experienced the conduct as harassment
- The circumstances in which the conduct occurred. For example, it will be relevant that the speech relates to matters of public interest and is taking place in a setting where the aim is to advance knowledge
- Whether it is reasonable for the conduct to be perceived as harassment given the fundamental importance of freedom of expression – a right that extends to ideas that disturb or offend.
Where colleges are aware of campus tensions, the public sector equality duty to foster good relations may require them to intervene proactively to ensure all groups feel supported and able to participate effectively in campus life. Colleges may want to consider issuing guidance on freedom of speech, emphasising their duty to uphold it while highlighting the risks of criminal offences or unlawful harassment.
Speech which transgresses the guidance should be investigated quickly and proportionate action taken where appropriate to ensure the parameters of lawful free speech are respected. Staff and students who feel marginalised or vilified should be offered appropriate support. The aim should be to enable students and staff to discuss matters of public interest freely and robustly without exposing themselves, others or the college to the consequences of unlawful speech.
Given the complexity of the legal position, colleges may understandably be concerned that they will face complaints and potentially legal or regulatory challenge whatever they do. The key will be to demonstrate that decisions were made reasonably, taking all the evidence and responsibilities into account.