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Freedom of speechUniversities UK conference

Implementing the new Prevent statutory duty

22 June 2015Gary Attle, Partner, Head of Education & Governance

gary.attle@mills-reeve.com

01223 222394

Article 10(1) European Convention on Human Rights

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.”

Article 10(2) ECHR“The exercise of these freedoms, since it comes 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 reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Section 43(1) Education (No 2) Act 1986

“Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.”

Section 43(2) Education (No 2) Act 1986“The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as 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.”

Section 202(2) Education Reform Act 1988“In exercising those functions, the [University] Commissioners shall have regard to the need –

(a) to ensure that academic staff have 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 privileges they may have at their institutions.”

Freedom of speech – within the law

o an ‘essential foundation of a democratic society’o includes

– political and religious views– controversial and unpopular opinions– radical ideas and dissenting voices– minority opinions as well as the majority view– statements which ‘offend, shock or disturb’

Freedom of speech – outside the lawBreach of public order/criminal offences including:

o course of conduct amounting to harassmento malicious communicationso threats of violence / harassment, alarm or distresso threatening or abusive words or behaviour

– with intent to stir up racial hatred or a likelihood of doing soo threatening words or behaviour

– with intent to stir up religious hatred*, or– with intent to stir up hatred on grounds of sexual orientation*

* express statutory protection for freedom of expression

Freedom of speech – outside the law

Breach of the Equality Act 2010

o discrimination o harassment *o victimisationo public sector equality duty

*includes unwanted conduct related to a relevant protected characteristic which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person

Freedom of speech – outside the law

Breach of charity law

o activities not in furtherance of charitable purposeso public interest requiremento rules on political campaigning

Freedom of speech – outside the law

Breach of terrorism legislation, including

o inviting support for a proscribed organisationo encouraging terrorism including glorifying terrorismo disseminating terrorist materialo providing instruction or training in terrorist skills

Section 1(1) Terrorism Act 2000“(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b)* the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.”* This condition is not required if the use or threat involves the use of firearms or explosives.

Section 1(2) Terrorism Act 2000

“(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.”

Freedom of speech

Within the law Outside the law

eg radical ideas eg terrorist offences

Section 26(1) Counter-Terrorism and Security Act 2015

“A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism.”

Section 31 Counter-Terrorism and Security Act 2015“(2) When carrying out the duty imposed by s26(1), a specified authority to which this section applies -

(a) must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty;

(b) must have particular regard to the importance of academic freedom, if it is the proprietor or

governing body of a qualifying institution.”

Prevent Duty Guidance (England and Wales) 2015 – paragraph 8

“The Prevent strategy was explicitly changed in 2011 to deal with all forms of terrorism and with non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists then exploit. It also made clear that preventing people becoming terrorists or supporting terrorism requires challenge to extremist ideas where they are used to legitimise terrorism and are shared by terrorist groups.“

Prevent Duty Guidance (England and Wales) 2015 – paragraph 7

“The Government has defined extremism in the Prevent strategy as: “vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces.”

Freedom of speech

Within the law Outside the law

eg radical ideas eg terrorist offences

risk to public safety risk of being drawn into terrorism

UUK guidance

Speaker building blocks

What to expect next?

Significant changes from the original version – less prescriptive, less

onerous

Removal of 14 day notice requirement

Removal of requirement to see all presentations

in advance of events

Likely to be requirement to manage speaker risks effectively and evidence

this

Intention is for external speaker content to be

confirmed before 21/07/15

Draft text must be approved by Parliament

and commencement order then laid for the

Prevent duty