Free speech and the Prevent duty in higher education

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.  To his credit, the director for academic free speech at the OfS, Arif Ahmed, has vigorously defended the rights of those protesting within the law against the actions of Israel. Those inclined to take offence should consider that the Act provides for their free speech, too. Thus, “some groups who share protected characteristics may consider that they will be negatively affected by the lawful expression of views that they find offensive. However, our proposed approach to operating the free speech complaints scheme may support those groups to put forward their counter views (within the law), and that may be a positive effect” (Annex C, para 10). 

So far, so straightforward. However, there is one area where universities are required to intervene to restrict speech that is lawful, which the government regards as offensive and to be ‘extreme’. This involves the Prevent Duty that was introduced in 2015. 

All public authorities – including schools and institutions of higher education – have a statutory duty to pay due regard to individuals at risk of radicalisation. Staff are required to undertake training to identify the signs of radicalisation and to report individuals – students and colleagues – to their institution’s Prevent safeguarding team. The latter will discuss these concerns with counter-terrorism police officers (usually including interviews with the individual identified as potentially at risk) for possible referral to an external local Prevent Panel for consideration for intervention through a Channel de-radicalisation programme. In addition, universities are required to have measures in place to monitor external speakers invited onto campus, and to deny a platform to any that may be judged to be ‘extreme’. 

To be clear, all the signs of radicalisation identified under Prevent involve lawful ideas and behaviour. Even in those cases – around 10% of those that reach an external Prevent Panel (there are no data collected on those who are reviewed for a possible Prevent referral) – that are deemed to warrant a Channel intervention, no laws have been broken. Nor is there any evidence that lawfully-held views believed to be extremist are an indication that an individual may go on to commit terrorist offences – the only evidence that is adduced involves individuals who have been convicted of non-violent terrorist offences. In other words, worrying signs derived from limited research on a prison population are being used to identify problems in the general population, and young people in particular. 

The OfS proposals do not mention the Prevent Duty, but there is a major conflict between it and the Act. It is a conflict that has been unresolved since HERA, when universities should have been refusing to implement Prevent. In paying ‘due regard’ to the Prevent Duty in the light of their statutory obligation to uphold free speech, they should have given priority to the latter.

There is an echo of this consideration in the OfS proposals. For example, paragraph 57 states that they considered a definition of a visiting speaker to “those who had been approved under the approvals process. However, a refusal to approve an invitation may itself give rise to questions about whether there has been a breach of a duty to secure free speech within the law. We therefore discounted this option.” 

In other words, but without explicitly saying so, the OfS has declared the existing architecture within universities for monitoring visiting speakers to be potentially flawed with respect to the requirement to uphold free speech. 

Alongside the two years taken to introduce the Act, the government has also undertaken a review of Prevent under William Shawcross. It reported in February 2023. All of its recommendations have been accepted by government. Their main thrust is to reduce the focus on right-wing extremism to give greater focus to so-called ‘Islamist’ extremism. This is a position lobbied for by the right-wing think tank Policy Exchange, alongside their advocacy of measures to protect right-wing speech within universities. They have called for a register of Muslim-led civil society organisations they deem to be ‘extremist’ and for there to be restrictions on engagement with them by public authorities or those in receipt of public funds.

The Shawcross review acknowledged that there was evidence that Prevent had a chilling effect on Muslim students who were led to ‘self-censor’. However, it argued that the problem derived not from Prevent itself, but from misinformation spread by ‘anti-Prevent’ campaigns on campus (para 6.250). Recommendation 33 stated that there should be “specific measures to counter the anti-Prevent campaign at universities. Higher and further education co-ordinators should work closely with institutional safeguarding leads to co-ordinate activities for students and staff which directly take-on and challenge disinformation about Prevent. The Department for Education should develop a network of speakers who are able to speak to students and staff about counter-radicalisation work and its benefits.”  

There is no legal definition of extremism, and no independent statutory body to provide oversight of Prevent. Instead, the responsibility for defining extremism belongs with a Commission for Countering Extremism operating under the Home Secretary (it used to be an independent body, but its status was changed in May 2023, in line with recommendations from the Shawcross Report).

William Shawcross’s words are revealing, “The campaign against Prevent has included some civil liberties groups and activists who seemingly, as a matter of principle, oppose a state-run scheme to counter specific ideas, attitudes, and non-criminal behaviours, no matter how light touch the scheme’s methods” (para 6.250). Of course, the principle that is in play is precisely that of free speech and the expression of lawful views, which the OfS has bound itself to uphold. 

How might this contradiction be resolved? As I have suggested, the OfS is publicly reticent about Prevent. This likely means that they are relying on the Department for Education and the Home Office to resolve it prior to the Act coming into force in August next year. 

The largest proportion of referrals to Prevent (around 30%) come from schools. In that sense, home students come into higher education ‘pre-chilled’. Shawcross argued that the proportion of referrals from higher education was lower than expected. However, because Prevent exists in the pre-criminal space, there is no means of requiring any individual to cooperate with it. Schools have the authority to act in loco parentis, but universities do not. Staff can be mandated to receive Prevent training, but no student or member of staff need cooperate with safeguarding measures applied to them under Prevent. Indeed, under the Act, they would have recourse to the claim that their right to freedom of speech was being denied.

In schools, one ‘solution’ has been to incorporate Prevent, and an associated ‘undertaking to uphold fundamental British values’, into pupil and parent contracts (this is currently the position of some academies run by universities). Can we anticipate that universities will require cooperation with Prevent as part of their student contracts, in order to make non-compliance a disciplinary offence? If the OfS were to act consistently with how it proposes to address existing visiting speaker protocols, this would be ruled out. 

The government’s zeal to promote a culture war within universities has inadvertently exposed the illiberal nature of its own Prevent strategy. But it is now stuck with a contradiction between it and its ostensible commitment to free speech. It is a contradiction that has existed since the Prevent Duty was introduced. There have been some well-advertised issues of free speech highlighted at individual universities, but it has taken careful drafting of the complaints procedure by the OfS to bring to the surface the institutionalised ‘no platforming’ that Prevent represents. 

The loose threads of the government’s headline-grabbing approach to policy making are starting to unravel. Whoever is responsible at the OfS for drafting their proposals has a very fine eye for detail. They have also spotted that the definition of a ‘higher education provider’ (since the Education Reform Act 1988) includes sixth-form and further education colleges, in so far as they provide a higher qualification (such as a university foundation course). 

In this context, it is not only students on a specific higher course that are covered by the Act, but all students at the provider. Thus, paragraphs 54 and 55 state, “our proposed definition of ‘student’ is not limited to higher education students. This is because the Act does not include any such limitation. Some providers may have students aged 11 to 16 (Key stage 3 and 4), or 16 to 18 years (Key stage 5), or adults enrolled on further education or community learning programmes. In our view, any student engaged in study or research could suffer adverse consequences because their institution has breached its duty to secure free speech within the law. Therefore, we consider that any such person should be able to make a free speech complaint.

Universities UK opposed the Act, largely regarding it as unnecessary and an encroachment on institutional autonomy. This was especially directed at the idea that the complaints mechanism would be backed by a statutory tort and a remedy in the courts. The current proposals are silent about how that would work. 

Nonetheless, it seems clear that the legislation has revealed a serious problem of free speech different from that identified by government. It is one that has also been suppressed by the commitment of universities to a corporate form of institutional autonomy that provides complainants with no external body to which appeal can be made.  There is a need for an independent scrutiny mechanism for all institutional activities – whether that be the government’s own Prevent strategy, the operation of free speech within universities, or, may I add, research governance and misconduct.

 

John Holmwood is emeritus professor of sociology at the University of Nottingham. Together with Dr Layla Aitlhadj, he is the author of The People’s Review of Prevent and the Response to the Shawcross Report. In the interest of transparency, he declares that he is identified by Policy Exchange as the point at which the ‘hard left’ and ‘radical Islam’ meet.