Discussion, Debate and Dissent

Gary Attle, Partner and Head of Education & Governance at Mills & Reeve LLP, on the importance of free speech and robust debate.

A new exhibition opens in September at the British Museum under the title: ‘I object’. The exhibition has been curated by Ian Hislop (editor of Private Eye) and aims to pull together a number of objects in the museum’s collection as examples of dissent. One item is a Babylonian brick, where the brick-maker has inscribed his name over the official mark of King Nebuchadnezzar.

Literature also helps to preserve evidence of dissent at key points in history. One of the most humbling books I have read this year is the narrative of the activities of the White Rose, the group of students and a professor at the University of Munich who organised a leafleting campaign encouraging opposition to the Third Reich. As those familiar with this incredibly courageous and peaceful protest will know, the dissent in this case was at significant personal cost to those involved.

In the appeal courts, judges are free to give dissenting judgments, if they feel it is necessary to do so. Three of the eleven judges of the UK Supreme Court gave dissenting judgments over whether Parliamentary approval was required for the UK to trigger Article 50 and commence the 2 year period for the UK to leave the European Union.

A free exchange of views – and dissent – also lies at the heart of institutional good governance. A governing body should ensure that there is an opportunity for robust debate amongst its members about key decisions that have to be taken collectively. It is in the discussion that a range of perspectives can be heard – and weighed – before reaching a collective decision. Each member of the governing body should bring their independent judgment to bear, be free to voice concerns in the discussion and, having listened and reflected, be free to vote for or against a proposal, rather than simply conform to the majority view. A governor’s dissent from the decision should be recorded in the minutes of the meeting.

Earlier this year, the Parliamentary Joint Committee on Human Rights (JCHR) published its report into Freedom of Speech in Universities. This followed evidence sessions involving many groups and individuals, most importantly student societies, Vice Chancellors, high-profile public speakers, government ministers and regulatory bodies. We contributed to the written and oral evidence about the law in this area.

The cross-party JCHR affirmed a number of constitutional principles and the importance of freedom of speech in a democratic society. It also concluded that there was no “wholesale censorship of debate in universities which media coverage has suggested”. However the JCHR highlighted a number of factors inhibiting freedom of speech:

  • intolerant attitudes, often incorrectly using the banner of ‘no platforming’ and ‘safe space’ policies;
  • incidents of unacceptable intimidatory behaviour by protesters intent on preventing free speech and debate;
  • unnecessary bureaucracy in organising events;
  • fear and confusion over what the Prevent duty entails;
  • regulatory complexity;
  • unduly complicated and cautious guidance from the Charity Commission;
  • concern by student unions not to infringe what they perceive to be restrictions.

The JCHR also took the initiative in publishing guidance to universities, student unions and student societies about how freedom of speech must be “within the law” in a democratic society.

The Minister, Sam Gyimah MP, has responded by confirming that further guidance will be published. This is awaited.

The new higher education regulator, the Office for Students, requires as a condition of registration for the new public Register of English Higher Education Providers under the Higher Education and Research Act 2017 that an institution’s governing documents uphold certain public interest principles, one of which is that “the governing body takes such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider.”

Some topics which will be raised and debated over the coming months will be controversial. The Joint Committee on Human Rights sums it up well:

“In an ideal world, debate would take place in a respectful and orderly fashion. However, provided speech is legal, the right to speak freely includes saying things which may shock or offend others.”

The challenge is where the lines should be drawn. Crucially, attention to the facts, full context and relevant legal frameworks will be of fundamental importance.