Terror bill: Bid to ease campus freedom fears
Last week more than 500 professors signed an open letter to The Guardian to voice a deeply held concern that the bill would place “an unlawful and enforceable duty on educational institutions and staff”.
Under the rewording, when implementing the new law, universities must pay “particular regard” to their duty, under the 1986 Education Act, to secure freedom of speech.
The draft bill lists universities as one of a number of specified authorities which in the exercise of their functions “must… have due regard to the need to prevent people from being drawn into terrorism”.
How the ‘duty to prevent’ is to be implemented is set out in binding guidance accompanying the bill which, in a further concession, ministers have said will have to be approved by a vote in both Houses of Parliament before becoming law.
However, a legal opinion sought by the University and College Union from Robert Moretto QC found that it was “difficult… to square” the ‘Prevent’ duty with academic freedom enshrined in the 1986 Education Act.
The bill would give the Home Secretary ultimate authority to take legal action to enforce a ban on speakers on campus if universities failed to carry out their duty under the law.
Universities UK had urged the government to additionally make any use of such power subject to appropriate scrutiny by Parliament, by requiring a report be issued by the Home Secretary to Parliament.
“Any use of this power would constitute a significant incursion into the running of an independent and autonomously governed institution,” it said in a briefing paper.
In their letter the professors said the principle of academic freedom is enshrined in the Education (No. 2) Act 1986, which places a duty on universities and colleges to “ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.
But the new legislation would place a statutory duty on those same institutions to prevent students being drawn into terrorism.
“We share the concern raised by the joint committee on human rights about how this duty would work alongside existing requirements to ensure freedom of speech.”
The professors said the proposed legislation was both unnecessary and ill-conceived and called on the government to urgently rethink its proposals.
Measures universities are expected to take include giving at least two weeks’ notice of the booking of public speakers and events to allow for checks to be made; advance notice of the content of the event, and sight of any presentations or footage to be broadcast; establishing a system for assessing the risks of any event and any required mitigating action such as guaranteeing an opposing viewpoint or having someone in the audience monitor the event; and establishing a mechanism for managing incidents or instances where off-campus events of concern are promoted on campus.
They would also have to consider filtering of online content to prevent people being drawn into terrorism, and have “clear policies and procedures for students and staff working on sensitive or extremism-related research”.
Looking for clarity
In the House of Lords on Wednesday, the cross-bencher Baronness O’Loan said universities are looking for clarity and an explicit statement in law that, in the context of higher education, freedom of speech and academic freedom within the law carry greater weight then the duty to prevent.
Lord Bates, for the Government, said the government amendment specifies that universities, when implementing their duty to prevent, must have “particular regard” to the duty imposed by ‘the duty to secure freedom of speech’ set down in section 43(1) 15 of the Education (No. 2) Act 1986 (freedom of speech in universities).
The Education Act says there is a duty to ensure, as far as reasonably practicable, that the use of any premises of the institution is not denied to any individual or body of persons on any ground connected with the beliefs or views of that individual or any member of that body, or the policy objectives of that body.
In addition the Home Secretary must have “particular regard” to the same duty when issuing guidance with regard to the duty to prevent or when using his or her power to direct universities in their performance of their duty to prevent where they have failed to uphold it.
Lord Bates said the use of the phrase “particular regard”, as opposed to “due regard” in the previous version of the bill, elevates the freedom of speech consideration among all the considerations that must be borne in mind.
Baroness Kennedy of The Shaws, a Labour peer and former chair of the British Council, who is principal of Mansfield College, Oxford, said the duty to prevent should not be created for adult learning institutions because “they are where the great debates happen – the exchange of ideas – and they are the crucible in which people formulate ideas and in which ideas can be challenged”.
She argued that the bill as amended created parity between the duty to prevent and the duty to uphold academic freedom, where the latter should have primacy.
She cited concern that constraints are already being felt by universities – that if, for example, someone seeks to invite in a speaker on Islam, for comparative religion, some universities become very sensitive and anxious.
“If there is an invitation to a speaker on Islamic studies or the history of religion, anxiety is expressed and often the support of the police is encouraged and advice is sought from external sources. So the chilling effect is very worrying for the academic world.”
Universities failed to win support from the Opposition front bench to have them exempted from the duty to prevent.
The Bill is expected to be voted on by MPs on Monday.