Prevent Watch

Free speech and the Prevent duty in Higher Education

The government’s zeal to promote a culture war within universities has exposed a contradiction between free speech and the Prevent duty, writes Prof. John Holmwood.

The Office for Students (OfS) is currently caught up in the crossfire of a government-inspired ‘culture-war’ on universities. This has included passage of the Higher Education (Freedom of Speech) Act in May 2023 to address an alleged ‘no platforming’ of right-wing and gender-critical speakers.

The OfS has now published its proposals for an independent complaints process as required by the Act. This will come into force in August 2024.

Because the Act was sparse in details, it has gone back to Part A1 of the Higher Education and Research Act 2017 (HERA) and its definitions of academic freedom and outline of protections afforded to staff and students, including those deriving from Article 10.1 of the European Convention on Human Rights (itself currently in the cross-hairs of the hard right wing – the so-called ‘five families’ – of the conservative party).

So, what is new? Very little, except that HERA provided no easy mechanism for redress for anyone complaining that their rights to free speech had been denied.

This is clear in the way in which universities since October 7th have restricted meetings and protests calling for a ceasefire in Gaza (and, indeed, have been called upon to do so by Conservative politicians who have otherwise strongly supported the new Act).

This is despite existing obligations to support free speech, which universities and their representative organisations had argued would suffice when criticising the new Act.

What the OfS now proposes is simple in outline. It is that complainants should initially seek a response from the institution against which they have a complaint. This must be dealt with within 30 days. If there is no satisfactory resolution, the complaint may be taken further through the OfS.

The defence of free speech is robust: “in formulating our proposals, we have taken the view that freedom of speech and academic freedom provide a necessary context for advancing new ideas, encouraging productive debate and challenging conventional wisdom, and that these are essential characteristics of quality higher education provision. We consider that our proposals advance the aim that all providers and relevant students’ unions secure freedom of speech within the law for students, staff and visiting speakers” (Annex C, para 9).

However, speech is protected only in so far as it is lawful – “speech that amounts to unlawful harassment, victimisation or discrimination is not protected. Similarly, unlawful incitement of religious or racial hatred, or speech that is otherwise unlawful, is not protected” (Main text, para 9).

In this context, lawful free speech may be regarded by others as ‘offensive’, but that can be no basis for restriction.

Read more on the Council for the Defence of British Universities.

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Photo by Felicia Buitenwerf/Unsplash.

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