Universities’ counterterrorism duty: the legal view

Late on 15 July, without any fanfare, the much-debated and long-awaited guidance for universities and colleges on how to deal with events involving external speakers was published by the Home Office.

The guidance is subject to parliamentary approval, which, if granted, will lead to a commencement order bringing into force the duty to have due regard to the need to prevent people from being drawn into terrorism for providers of further and higher education.

For both higher education and further education, the guidance is very similar in relation to external speakers. The higher education version identifies the Universities UK 2013 guidance on hosting external speakers and the Charity Commission guidance on the same topic as useful resources.

The new guidance acknowledges the need to balance decisions relating to external speaker events with wider legal duties in relation to freedom of speech (applicable, with some exemptions, to both FE and HE institutions) and academic freedom (applicable only to a narrow subsection of HE institutions). I return to this below.

Having name-checked the “freedoms”, the guidance does not offer much further comfort to institutions worried about striking that difficult balance. Any speaker who plans to encourage terrorism or support for proscribed organisations should not be allowed on the basis that these are criminal offences.

Speakers with extremist views (whether violent or non-violent) who risk drawing people into terrorism should not be allowed unless the risk can be “fully mitigated” by, for example, allowing opposing views to be put at the same event. Unless “full mitigation” can be achieved, the event should not be allowed to proceed.

The test is of full mitigation rather than risk reduction – an onerous standard to meet. Given that the ultimate sanctions for failing to comply with the duty include court orders and penalties for contempt of court, institutions may be inclined to err on the side of caution when deciding if risks have been “fully mitigated”.

The legal position in terms of which institutions are subject to free speech and academic freedom duties is (eventually, and please do forgive the unusually high number of statutory references before I get to the point) an interesting one.

The Education (No 2) Act 1986 duty to ensure, so far as is reasonably practicable, freedom of speech for members, students, employees and visiting speakers applies to: universities; FE colleges; sixth-form colleges; and other HE and FE institutions designated by the secretary of state to receive grant funding from relevant funding agencies.

The academic freedom duty in the Education Reform Act 1988 applies to pre-92 universities. Post-92 universities have a “mirror” provision in their articles of government, but this is not referred to in the Counter-Terrorism and Security Act 2015.

Thus, neither duty applies to private training providers or to alternative HE providers designated for student support or with their own degree-awarding powers. Both these groups are nonetheless caught by the duty to have regard to the need to prevent people being drawn into terrorism.

So we may see an emerging hierarchy of responses to the counterterrorism duty. Very broadly:

• For private training providers and alternative providers of HE, the duty to have due regard to the need to prevent people being drawn into terrorism is unfettered by any considerations of freedom of speech or academic freedom.

• All universities, FE and sixth-form colleges and designated institutions will, in discharging the duty to have due regard to the need to prevent people from being drawn into terrorism, have to have particular regard to the need to ensure, so far as is reasonably practicable, freedom of speech for members, students, employees and visiting speakers.

• All pre-92 universities will in addition have to have particular regard to the importance of academic staff having the freedom within the law to 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 the privileges they may have at their institutions.

This raises the possibility of exactly the same course, conduct, speaker or activity being treated differently, not because of some institution-specific assessment of risk (which is to be expected and understandable), but simply because of the type of institution it is.

This may create an added complexity both to demonstrating compliance and indeed monitoring compliance. 

It is important also to remember that as a result of the Human Rights Act 1998, all legislation must be read and given effect in a way that is compatible with the rights guaranteed by the European Convention on Human Rights. 

This includes the right to freedom of expression (ie, the right to impart and receive information and ideas). An even further complexity is created, therefore, because a court charged with enforcing the new duty will need to take account of this right irrespective of the category of institution against which the duty is being enforced.

Smita Jamdar is a partner and head of education at law firm Shakespeare Martineau. This blog was originally posted on the firm’s website.