STATEMENT OF BIRMINGHAM UCU ON THE UNIVERSITY OF BIRMINGHAM CODE OF PRACTICE ON FREEDOM OF SPEECH

INTRODUCTION 

1. In April 2024, the University announced that it had reviewed and updated its Code of Practice on Freedom of Speech (‘the Code’). It was not subject to consultation with UCU or UNISON. The purpose of this statement is to highlight a number of concerns that we have with the Code as it stands at present. 

2. In 2018, the Joint Committee on Human Rights reported: 

‘Some universities’ codes of practice on freedom of speech appear to inhibit free speech within the law rather than enhance it. While many policies are excellent, some are unclear, difficult to navigate, or impose bureaucratic hurdles which could deter students from holding events and inviting external speakers.’¹ 

The Code as it stands appears to be a perfect example of this problem. It is badly-drafted, difficult to follow, frequently ambiguous, vague, over-inclusive (at times absurdly so), unnecessarily burdensome and most likely unlawful. 

3. In highlighting the Code’s shortcomings, we mean to be constructive. We hope we can engage in productive discussions with the University with a view to remedying its defects. We cannot help but note, however, that it would have been better for all concerned had we been given the opportunity to raise these concerns before the Code came into force. 

4. We start by providing an overview of the legal background relating to freedom of expression and academic freedom in higher education, before detailing the concerns that we have in relation to various provisions in the Code. 

THE LEGAL BACKGROUND 

Summary 

5. Universities are subject to specific legal duties to secure freedom of speech and academic freedom and, as public bodies, are also bound to respect the rights to freedom of expression and freedom of assembly that staff, students and visitors enjoy under the European Convention on Human Rights. Restrictions on freedom of expression will be justified only on very limited grounds, for example where they are necessary in order to: 

• prevent disorder on university premises; 
• protect persons from an intimidating, hostile, degrading, humiliating or offensive environment based on their protected characteristics; 
• prevent the use of threatening, abusive or insulting words or behaviour with the intention of causing harassment, alarm or distress. 

6. Expression cannot be restricted solely on the basis that: 

• it might cause disorder in places other than on the university’s premises; 
• it is annoying, shocking, disturbing, offensive or insulting, or is likely to inflame community tensions; 
• it is critical of the university or potentially detrimental to the university’s commercial interests. 

7. The burden on justifying restrictions on freedom of expression lies on the university, and must be based on evidence, not mere assertion. 

8. A requirement that notification be given of intended events may be justified, but where a demonstration or event is organised as an immediate response to a political event, the absence of the requisite prior notice will not be an adequate reason for preventing the event from going ahead. 

9. Universities are under an obligation to have due regard to the need to prevent people from being drawn into terrorism, but in doing so they must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom. 

Education (No 2) Act 1986, section 42 

10. The right to freedom of speech in English and Welsh universities is given statutory protection by section 42 of the Education (No 2) Act 1986, which provides: 

(1) 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. 

(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is 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 of any member of that body; or 

(b) the policy or objectives of that body. 

Subsection (3) then goes on to require universities to have a Code of Practice on the procedures to be followed by members, students and employees in connection with the organisation of meetings and other activities.  

11. In R v UCL ex p Riniker Sedley J stated that while the principal purpose of s.43(1) is: 

‘to prevent the banning from campuses of speakers whose views might be unacceptable to a majority, or even a vocal minority, of either the student body or the teaching body or both or, come to that, of the governing body… its breadth is… somewhat larger and seeks the securing of freedom of speech in all respects’² 

12. In R v University of Liverpool ex p Caesar-Gordon, the Divisional Court held that, when deciding whether to permit a particular speaker or to place conditions on an event, universities are entitled to take into account the risk of disorder on university premises and among university members, but that they should not take into account any risk of public disorder outside the confines of the university by persons not within the university’s control.³ 

Education Reform Act 1988, section 202(2) 

13. Section 202(2) of the Education Reform Act 1988 provides that University Commissioners: 

‘shall have regard to the need… 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’

European Convention on Human Rights, article 10 

14. Article 10 of the ECHR enshrines the right to freedom of expression, in the following terms: 

1. 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. 
2. The exercise of these freedoms, since it carries 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 the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 

15. The ECtHR has repeatedly affirmed that article 10 protects not only expression which is favourably received, but that which offends, shocks or disturbs.⁴ It protects not only the substance of ideas or information expressed, but also the tone or manner in which they are conveyed, including the use of a polemical or provocative style.⁵ 

16. The level of protection afforded to various types of expression varies, with political expression attracting the highest degree of protection. Political expression includes not only discussion of political matters in the strict sense, but any form of communication on matters of public interest. For example, in Wille v Liechtenstein,⁶ an academic lecture on constitutional law was held to constitute political speech deserving of the highest level of protection. Interference with political expression will only be justified in exceptional circumstances.⁷ Furthermore, the Court has indicated that academic freedom enjoys particularly strong protection under Article 10.⁸ This freedom extends to academics’ freedom to express freely their views and opinions, even if controversial or unpopular. It also encompasses academics’ freedom to express a critical opinion about the institution or system in which they work.⁹ 

17. In order for restrictions on freedom of expression to be justified, they must both by directed to one or more of the objectives specified in article 10(2) and must be shown by the public authority to be necessary in a democratic society. ‘Necessary’ has been strongly interpreted, and should not be confused with ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’.¹⁰ The burden of proving the necessity of the burden is upon the public authority, and it is not easily discharged.¹¹ It must be based upon evidence, not merely assertion.¹²

18. A more focused human rights indicates: 

Executive summary
Legal question	Answer	Reason
Is there interference with freedom of expression?	Yes	prior restraint, conditions, restrictions, penalties, chilling effect
Is the interference prescribed by law?	No	uncertain and unforeseeable scope, excessive discretion in application and uncertainty around penalties for non-compliance
Does the interference pursue a legitimate aim?	Yes (but not clearly stated)	protection of rights (of others), prevention of crime
Is the interference rationally connected to the aim(s) pursued?	No	it is not clear how the breadth and uncertain scope of the relevant constraints achieve the aims, which include promoting and protecting free speech
Is the interference the minimum necessary to attain the legitimate aim?	No	excessive and uncertain scope of interference and consequences of non-compliance
Is the extent of interference proportionate to the extent of attainment of the aim(s)?	No	gravity of the interference with a highly valued dimension of free expression, academic freedom, vis-à-vis unclear extent of attainment of aims

19. According to Article 10 ECHR, which binds all UK public authorities and which can also entail obligations for private persons or bodies, everyone has the right to hold opinions and to receive and impart information and ideas without interference by public authority. To be lawful under Article 10 ECHR, any interference (in the form of formalities, conditions, restrictions or penalties) with freedom of expression must be prescribed by law and must be necessary in a democratic society, in the sense that it must be the minimum interference necessary in the pursuit of a legitimate aim, such as national security, public safety, the prevention of disorder or crime, or the protection of the reputation or rights of others.

20. Q: What is captured by the right to freedom of expression?

A: According to the European Court of Human Rights, freedom of expression ‘is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’. (Handyside v UK, 1976, para 49)

21. Q: Is there (actual or potential) interference with freedom of expression?

A: Yes. The (actual or potential) interference is multi-faceted:

–   prior restraint, including procedural obstacles and delays;

–   actual restraint;

–   potentially severe and at the same time not clearly identified penalties for non-compliance;

–   chilling effect.

22. Q: Is the interference ‘prescribed by law’?

A: The European Court of Human Rights has underlined that a norm cannot be regarded as a ‘law’ unless it complies with the requirements of the rule of law. This means that it must be formulated with sufficient precision to enable the person concerned to regulate their conduct and foresee (if need be with appropriate advice), to a degree that is reasonable in the circumstances, the consequences that a given action may entail (The Sunday Times v UK (No 1), 1979, paras 48-49).

In other contexts the Court has established that provisions conferring excessive discretion onto the decision-makers, due to their open-ended formulation, raise a high risk of arbitrary or even discriminatory implementation and do not comply with the requirements of the rule of law (see Gillan and Quinton v UK, 2010, para 85; and on Article 10 ECHR, see Zayidov v Azerbaijan (No 2), para 68). It underlined that relevant regulatory or legal measures ‘in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power’ (Zayidov v Azerbaijan (No 2), para 68).

On this basis, there are many aspects of the Freedom of Speech code that appear to us to fall far short of the requirement of being prescribed by law. In particular:

–   there is a lack of certainty and foreseeability about what exactly is subject to restrictions under the Code, and what kind of restrictions will be applied – for example it is unclear what the University understands by ‘non-violent extremism’;

–   there is a lack of certainty and foreseeability around what amounts to compliance with the Code – for example it is unclear whether provisions formulated in terms of suggestions (‘should’, ‘should consider’ etc) amount to obligations.

–   there is a lack of certainty and foreseeability around the consequences of (intentional or accidental) non-compliance with the Code – eg ‘Where a staff member or a student’s behaviour does not comply with this Code…this will become a matter to be addressed under the University’s Regulations or procedures’ is distinctly unclear.

23. Q: Is the interference necessary in a democratic society?

A: The assessment of necessity in a democratic society requires evaluating the proportionality of the measure(s) at issue. In doing so, the value of free expression within a democratic society must be taken into account: as the European Court of Human Rights has stressed, ‘freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man” (Handyside v UK, para 49). Additionally, the particular value of free inquiry and free expression within a university, especially by its students and staff, must be taken into account. The Court has acknowledged the value of ‘academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’ (Sorguç v Turkey, 2009, para 35).

24. Key criteria (all of which need to be met):

–       is the interference in pursuit of a legitimate aim or aims?

–       is the interference rationally connected to the legitimate aim(s)?

–       is the interference the minimum necessary to achieve the legitimate aim(s)?

–       is the extent of impairment of the right proportionate to the extent of attainment of the legitimate aim(s)?

25. It appears to us that the university considers that a range of legitimate aims are in principle being pursued by the university, though that is not made clear in the ‘purpose’ section of the Code. Elsewhere, the Code refers to a perception of conflicts of rights rather than actual conflicts of rights, which raises questions as to what legitimate aims are being pursued where there is a perception of something rather than a concrete issue. To the extent that the Code is seeking ‘to provide an environment which promotes and protects freedom of speech, whilst also identifying when the purported exercise of freedom of speech crosses a threshold and becomes unlawful’, it appears that it seeks to prevent crime and protect the rights of everyone (including their rights to freedom of expression).

26. While we might accept that legitimate aims have been considered and will be considered in the articulation and implementation of the Code, significant concerns arise about the remainder of the criteria above. For example, it is not clear how the interferences at issue – which consist of significant impairment to freedom of expression, including through prior restraint and a chilling effect – achieve the aim of promoting and protecting the right to freedom of speech.

27. Moreover, again by way of example, it is not clear how the breadth of discretion afforded to Heads of School ensures the minimum interference necessary with freedom of expression.

28. Lastly, it is not clear how the extent of the restraint of free expression enabled by the Code – noting that such restraint is seen as particularly grave in view of the value the European Convention on Human Rights as interpreted by the European Court of Human Rights places on academic freedom – is proportionate to the attainment of the aims of said Code, which include protecting free expression. Moreover, given that we do not know the extent of the consequences of non-compliance with the Code, we cannot assess the severity of the penalties for the purposes of proportionality assessment.

European Convention on Human Rights, article 11 

29. Article 11 of the ECHR enshrines the right to freedom of assembly and association: 

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. 

30. The right to peaceful assembly is recognised as a right fundamental to a democratic society, and is not to be restrictively interpreted.¹³ For example, the risk of causing community tensions will not justify banning a controversial political demonstration.¹⁴ Unless there is compelling evidence that an assembly is likely to lead to violence and serious public disorder, it is unlawful for a public authority to prevent it, however shocking and unacceptable the views to be expressed at a meeting might be.¹⁵ Furthermore, where there is a threat of violent disturbance, authorities are required to take steps to neutralise this threat where at all possible, rather than taking the radical measure of banning the demonstration.¹⁶ Claims that a demonstration raises threats of violence must be backed by evidence.¹⁷ 

31. A requirement that notification be given of intended assemblies is not in itself an interference with article 11.¹⁸ However, the ECtHR has acknowledged that special circumstances may require an immediate response, in the form of a demonstration, to a political event. In such a situation, a decision to disband the ensuing peaceful assembly solely because of the absence of the requisite prior notice will amount to a disproportionate restriction on freedom of assembly.¹⁹ 

Equality Act 2010, section 26 

32. . Section 26(1) of the Equality Act 2010 provides that: 

A person (A) harasses another (B) if – 

1. A engages in unwanted conduct related to a relevant protected characteristic, and 
2. the conduct has the purpose or effect of – 

(i) violating B’s dignity, or 

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 

Section 26(5) states that the relevant protected characteristics are age, disability, gender reassignment status, race, religion or belief, sex and sexual orientation. 

33. While this section will justify certain restrictions on freedom of expression, it is important to note that ‘trivial acts causing minor upsets’ do not amount to harassment.²⁰ Furthermore, acts will not constitute harassment simply because an alleged victim believes them to have violated their dignity or created an adverse environment. The test has an objective element in addition to the subjective element: acts will only constitute harassment if both the alleged victim perceives themselves to have suffered the effect in question and it was reasonable for the conduct to be regarded as having the effect.²¹ In determining whether it was reasonable for conduct to be regarded as harassment, the context in which it occurred must always be considered. 

Public Order Act 1986, section 4A 

34. Section 4A(1) of the Public Order Act 1986 provides: 

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— 

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or 

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, 

thereby causing that or another person harassment, alarm or distress. 

35. As with section 26 of the Equality Act, this section will justify certain restrictions on freedom of expression, but it is important to note the requirement that ‘harassment, alarm or distress’ be intentionally inflicted is not a trivial one. An offence under this section is not committed by conduct that is merely rude, offensive, insulting or annoying (in R (R) v DPP making what Toulson J described as ‘masturbation gestures’ towards police officers while shouting ‘wankers’ could not be said to cause harassment, alarm or distress).²² 

Counter-Terrorism and Security Act 2015, section 26(1) 

36. Under s.26(1) of the Counter-Terrorism and Security act 2015, universities ‘must, in the exercise of [their] functions, have due regard to the need to prevent people from being drawn into terrorism’. Section 31(2) adds that, when carrying out this duty, universities must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom. 

Higher Education (Freedom of Speech) Act 2023 

37. The Higher Education (Freedom of Speech) Act 2023 makes provision to strengthen existing legislation on freedom of speech and academic freedom in higher education, including strengthening the duties imposed by section 43 of the Education (No 2) Act 1986. Its provisions, however, have not yet come into force. On 26 July 2024, the Secretary of State for Education announced the government’s intention ‘to stop further commencement of [the Act], in order to consider options, including its repeal’. The Act therefore has no bearing on the University’s obligations in respect of freedom of speech and academic freedom. 

OUR CONCERNS WITH THE CODE 

38. Having provided an outline of the relevant legal background, we now detail our principal concerns with the Code as it currently stands. 

Application of the Code to Teaching and Research Events (section 5) 

39. Section 5 of the Code places unreasonable burdens on those designated as ‘Organisers’ of teaching and research activities, as well as on Heads of Schools. Furthermore, the criteria for determining when decisions need to be escalated are vaguely stated. As a result, those involved in running teaching and research events, and Heads of Schools, will not be able to assure themselves that their decisions in relation to events will not face post-hoc criticism, since it will never be possible to say with certainty that they have followed the Code. This will likely have a chilling effect on freedom of speech, with staff and students disinclined from organising events on potentially controversial topics for fear of opening themselves up to post-hoc criticism. 

40. Section 5.1 states that all ‘activities taking place in teaching, education and research settings, as well as other academic activities that take place within a School or College’, should have an identified Organiser. This is an astonishingly broad provision, capable of covering, for example, an informal student study group, a meeting between markers on a module about how to align their grades and a discussion between colleagues in a staff kitchen about a recently-published piece of research. The requirement to have an identified Organiser in these and similar cases is clearly disproportionate. We are of the view that the requirement of an identified Organiser should apply only in respect of those events for which the procedure in Appendix B needs to be followed. We are further of the view that the scope of the duties imposed by sections 5.2-5.4 should be more narrowly defined. It is not proportionate to subject, say, informal study groups or chats between colleagues to the requirements under this Code (of course, such activities would still be covered by other conduct requirements that are placed on staff and students, such as the Policy on Harassment and Bullying). 

41. Not only is the requirement to have an identified Organiser across all teaching, education, research and other academic activities procedurally onerous, it also carries with it an unreasonable level of responsibility. Section 5.6 states that: ‘The Organiser of an activity is responsible for the activity’s compliance with this Code of Practice.’ It is disproportionate and unfair to expect Organisers to carry such a burden, for it entails them having responsibility for the behaviour of people over whom they have no control. It suggests, for example, that a module leader is responsible if one of their teaching team unreasonably prevents certain viewpoints from being discussed in their seminars, even if the seminar leader at fault is a senior colleague. We see no justification for placing this burden on the shoulders of module leaders. The Organisers of activities can only fairly be expected to take reasonable steps to secure the activities’ compliance with the Code, where what is reasonable will depend upon the nature of the activity, the number of people involved, the relative seniority of the Organiser with respect to other participants and the extent to which violations of the Code were foreseeable in advance, given the information available to the Organiser at the time. 

42. Section 5.6 also states that: ‘Where an activity is likely to fall under this Code, it is the responsibility of the Organiser to discuss the activity with their Head of School before proceeding.’ Given that, under section 5.1, section 5 of the Code applies to all ‘activities taking place in teaching, education and research settings, as well as other academic activities that take place within a School or College’, it follows that student study groups and research chats between colleagues must be discussed with the Head of School before going ahead. While we cannot imagine that the drafter of the Code had this in mind when he or she wrote it, nor can we work out what else the section is supposed to mean. 

43. The Code places an unreasonable burden of responsibility not only on the Organisers of activities, but also on Heads of Schools. According to section 5.7: ‘The Head of School is responsible for ensuring that the Code of Practice is upheld within their School’. Given the breadth of activities to which the Code applies, this is an impossible task: it is clearly infeasible for a Head of School to monitor all teaching, education, research and other academic activities, whether organised by staff or students. 

44. In place of sections 5.6 and 5.7, we would suggest that the Organiser should be under an obligation to inform their Head of School only in relation to activities to which Appendix B applies, and that, accordingly, the Head of School should be responsible only in relation to such activities. Otherwise the prospect of being criticised for failing to fulfil a clearly impossible responsibility will lead staff, students and Heads of Schools to be excessively cautious in relation to the organisation of activities, thereby effecting a chilling of freedom of speech, as well as damaging the vibrancy of the research and education environment at the University. 

45. Finally in relation to section 5, there is no clear definition of when teaching and research events are subject to the procedure set out in Appendix B. Section 5.8 states that Appendix B applies where, in the judgment of the Head of School or Head of College, ‘there are particular risks raised by the event that require a fuller risk assessment and mitigations to be put in place’ (a similar provision also appears in section 1.5 of Appendix B). What is meant by ‘particular risks’ is nowhere defined. The section does go on to state: 

Examples of where this might be the case are: teaching or research seminars that involve speech which may fall within paragraph 5.2 of Appendix B; a high-profile speaker (such as an ambassador); or where other risks are raised by the event (for example due to the prevailing political context, or the timing or physical location of the event, or to ensure due regard has been given to the need to prevent people being drawn into terrorism under the Prevent duty). 

Almost all of these supposed examples are, in fact, not risks: ‘a high-profile speaker’, ‘the prevailing political context’, ‘the timing or physical location of the event’ – these things may give rise to certain risks, but they are not risks. This matters because Heads of School and Heads of College are being called upon to make an assessment of risks without being told what risks they should be considering. Every activity carries with it certain risks, but there are only a very narrow range of risks for which restrictions on academic freedom/freedom of expression will be justified (as detailed above). To ensure that section 5.8 complies with the University’s obligations in respect of academic freedom/freedom of expression more generally, as well as to protect Heads of School and Heads of College from unfair post-hoc criticism, it should be made clear that only risks to the health, safety and rights of persons present on campus can justify the application of Appendix B to teaching or research activity (and not, say, the risk that the University may lose income from donors, suffer a drop in student applicants from a particular part of the world, or face criticism from government or the media). 

Application of the Code to Meetings, Demonstrations and Similar Events (section 6) 

46. Section 6 of the Code provides for meetings, demonstrations and other events to be subject to the procedure set out in Appendix B. It is, however, so broadly drafted so as to encompass any activity that make take place on campus. It provides (emphasis added): 

6. Application to meetings, events and demonstrations 

6.1 The responsibility to promote and protect free speech covers all events, demonstrations, protests and other events organised by a member of staff or student of the University, including events organised by individuals or groups using the University name, funding, branding or facilities. It is particularly relevant to the following activities (although this list is not exhaustive): 

• public meetings, arranged internally or externally, and held physically or virtually; 
• demonstrations, protests or marches on campus; 
• other forms of freedom of speech. 

6.2 The procedures that must be followed by the organisers of these events are set out at Appendix B… 

47. The pronoun ‘these’ in section 6.2 is ambiguous between (a) all events referred to in section 6.1 and (b) only those events listed in the bullet points in section 6.1. If the correct interpretation is (a), then Appendix B applies to ‘all events’ and also ‘other events’ (the latter being added presumably because the phrase ‘all events’ was thought to be insufficiently capacious). If, on the other hand, the correct interpretation is (b), then Appendix B applies to public meetings, demonstrations, protests, marches and ‘other forms of freedom of speech’. Either way, it is difficult to imagine an event to which Appendix B is not said to apply. And whatever the correct interpretation, the drafting of the section is astonishingly unclear. 

48. We would suggest that section 6 be amended so as to read: 

6. Application to meetings, demonstrations and similar events 

6.1 This section applies to public meetings, demonstrations, protests, marches or similar events (but not to teaching, research or educational events), whether arranged internally or externally, and whether held physically or virtually. 

6.2 The responsibility to promote and protect free speech covers events to which this section applies. 

6.3 The procedures set out in Appendix B must be followed in relation to events to which this section applies. 

6.4 The University shall not unreasonably refuse consent to those who wish to hold an event to which this section applies. Any conditions imposed on the holding of any such event shall be kept to the minimum necessary to protect the health, safety and rights of persons present on campus. 

This, we believe, would better accord with the intention behind section 6, as well as being considerably clearer. 

The Requirement of 14 Days’ Notice 

49. Sections 3.1, 4.1 and 6.1 of Appendix B make requirements that permission for events be sought no less than 14 days in advance. While such a requirement is likely to be reasonable in the majority of cases, there will be some situations in which an event needs to be organised at shorter notice (for example, where it is organised in response to a major political event) (see paragraph 20 above). The Code should therefore be amended to state that, while 14 days’ notice of events will normally be required, it is acknowledged that this might not always be possible, and that a failure to provide 14 days’ notice should not by itself be considered a reason for refusing consent for an event to go ahead. 

The Grounds upon which Conditions may be Placed on Events (Appendix B, section 4.3) 

50. We have already noted that the Code does not adequately define the risks that would justify the application of Appendix B to a teaching or research event (see paragraph 34 above). Likewise, the Code fails to adequately define the grounds upon which events may be made subject to special conditions. Section 4.3 of Appendix B states that ‘the Authorising Officer may identify reasonably practicable steps that can be taken to ensure lawful speech is protected’, but there is no explanation of the basis upon which (s)he is supposed to make that decision. Given that the only conditions that may lawfully be placed upon on the freedom of expression are those which are necessary to achieve the legitimate aims being pursued, we would expect to see a clear statement in the Code that the Authorising Officer’s decision to impose conditions must be based on clear evidence that such conditions are necessary in order to protect the health, safety and rights of persons present on campus. 

The Conditions which may be Placed on Events 

Measures to ensure that opposing views can be put forward lawfully 

51. Section 4.3 of Appendix B states that the Authorising Officer may require the Organisers of events to put into place ‘measures to ensure that opposing views can be put forward lawfully (e.g. by considering the balance of the speakers, or requiring an independent chairperson to facilitate an event)’. 

52. It is difficult to imagine circumstances in which such a requirement would be lawful. In respect of protests and demonstrations, to demand that space be made for the expression of opposing views would undermine the very essence of the activity (and thus violate article 11 of the ECHR). And even in relation to teaching and research events, where a discussion between opposing views will frequently be fruitful, it will not always be appropriate to allow for the expression of opposing opinions. For example, a lesson on climate science would not necessarily be enhanced by allowing unscientific denials of climate change to be advanced. And the fact I might consider Prof X’s work entirely devoid of academic merit does not give me an entitlement to make that point during her inaugural lecture. 

53. More fundamentally, the suggestion that Organisers of events should be required to pursue ‘balance’ demonstrates a fundamental misunderstanding of both freedom of speech and academic freedom. Freedom of speech entails the liberty to put forward partial opinions and to organise events that look to persuade the audience to adopt a particular point of view. Academic freedom entails the liberty to advocate for particular theories and ideas, and to organise events in conjunction with other academics who share similar ideas. Placing conditions on the ‘balance of the speakers’, or requiring an ‘independent chairperson’, amounts to a restriction on these liberties, which – as it cannot be justified by reference to the very narrow range of criteria discussed above – will be unlawful. 

54. We would therefore suggest that the reference to ‘measures to ensure that opposing views can be put forward lawfully’ be removed. 

Requirements that Organisers bear Security Costs 

55. Section 8.1 of Appendix B provides: 

The University confirms that, apart from in exceptional circumstances, use of our premises by an individual or body will not be on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises. Exceptional circumstances may include very high-profile visits (for example, very senior politicians) or events with a speaker likely to attract very significant protest.  

56. We agree that Organisers of an event at the University should only have to bear the costs of security relating to that event in exceptional circumstances. However, the examples provided in the second sentence of section 8.1 (‘very high-profile visits’ and events likely ‘to attract very significant protest’) are, far from being truly exceptional, in fact the only events in which more than minimal security costs are likely to be incurred. We would recommend that this section be amended so as to make clear that Organisers will be asked to bear security costs in only truly exceptional circumstances (such as where they have refused to comply with a reasonable and lawful condition placed on the event). 

The Grounds upon which Events may be denied Authorisation (Appendix B, section 5.2) 

57. Section 5.2 of Appendix B provides that: 

It will be reasonable to refuse consent where the University reasonably believes (from evidence about the nature of the event or relating to similar activities in the past whether held at the University or otherwise) that: 

• the views likely to be expressed by any speaker are contrary to the law; 
• the intention of any speaker is likely to be to incite breaches of the law or to intend breaches of the peace to occur; 
• the meeting will include or is likely to include the denial of the right to hold or to express an opposing opinion; 
• the speaker and/or the organisation they represent advocates or engages in violence or non-violent extremism in the furtherance of their political, religious, philosophical or other beliefs; 
• in line with the University’s responsibilities under the Prevent duty, the views likely to be expressed by any speaker are for the promotion of any illegal organisation or purpose, including organisations listed on the government’s list of proscribed terrorist groups or organisations; 
• it is in the interest of public safety, the prevention of disorder or crime or the protection of those persons lawfully on premises under the control of the University, that the meeting does not take place. 

58. These grounds are unjustifiably broad. Each will be addressed in turn. 

The views likely to be expressed by any speaker are contrary to the law 

59. In the UK, there is no such thing as a view that is contrary to the law. There are certain restrictions, such as those imposed by section 26 of the Equality Act 2010 and by section 4A of the Public Order Act 1986, on the manner in which certain views may be advanced in certain contexts (see paragraphs 21-24 above). For the purpose of clarity and accuracy, this ground should be reworded so as to state explicitly the statutory provisions likely violations of which will be considered as justifying refusal of authorisation for an event. 

The intention of any speaker is likely to be to incite breaches of the law or to intend breaches of the peace to occur 

60. It will be justifiable to deny authorisation for an event where the intention of the speaker is to incite breaches of the peace or other forms of violence. However, incitement of peaceful civil disobedience should not be grounds for refusing authorisation. This ground should be reworded to make this clear. 

The meeting will include or is likely to include the denial of the right to hold or to express an opposing opinion 

61. This ground is very unclear and it is difficult to understand what it is supposed to mean. There are perhaps two possibilities: 

1. a speaker will, or is likely to, deny that others have the (moral? legal?) right to hold or express an opposing opinion; 
2. the conduct of the meeting will not, or is likely not to, allow for opposing opinions to be expressed. 

62. Whichever of these is intended, the ground is unjustifiably broad. In respect of interpretation (a), it should first be pointed out that a tolerant society requires that the expression of intolerant opinions be permitted. Furthermore, the very existence of the Code is testament to the fact that the permissible bounds of freedom of expression is itself a matter of debate. This ground would, for example, prevent a speaker from advocating the criminalisation of holocaust denial. This is surely not something the University would want to prevent. 

63. In respect of interpretation (b), the problems with mandating ‘balance’ have been dealt with above (paragraphs 40-42). 

64. Because of both its lack of clarity and its apparently excessive scope, we would recommend that this ground be removed. 

The speaker and/or the organisation they represent advocates or engages in violence or non-violent extremism in the furtherance of their political, religious, philosophical or other beliefs 

65. The phrase ‘non-violent extremism’ is particularly problematic, as it lacks any clear definition, and appears capable of prohibiting the expression of political and other beliefs with a long and respectable heritage (including most of the reading one would expect to see on an undergraduate political philosophy course, and large swathes of the doctrines of a number of major religions). 

66. The presence of the term ‘non-violent extremism’ in the Code perhaps owes its origin to government guidance for higher education institutions, which made reference to ‘non-violent’ extremism, and stated: 

When deciding whether or not to host a particular speaker, [universities] should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups.²³ 

67. However, in R (Butt) v Secretary of State for the Home Department, the Court of Appeal held that this guidance was unlawful on the basis that it gave insufficient weight to the statutory duties in relation to freedom of speech that are incumbent upon universities.²⁴ Following this ruling, the government amended the guidance, and the controversial reference to ‘extremism’ has been removed. The current iteration of the guidance reads: 

Settings should consider the extent to which any external speakers and events held on their premises pose a risk of radicalising learners into terrorism.²⁵ 

68. In light of the decision in Butt, the change to the government guidance, and the inherent difficulties surrounding the term ‘non-violent extremism’, we would suggest that this ground be rephrased so as to align with the new government guidance. 

In line with the University’s responsibilities under the Prevent duty, the views likely to be expressed by any speaker are for the promotion of any illegal organisation or purpose, including organisations listed on the government’s list of proscribed terrorist groups or organisations 

69. It is a criminal offence to advocate support for a proscribed terrorist organisation, and it is right for the University to deny authorisation for events where there is evidence that this is likely to take place. However, the phrase ‘any illegal organisation or purpose’ is unwarrantedly broad. As noted above, the incitement of peaceful civil disobedience should not be grounds for refusing authorisation for an event, yet this might constitute an ‘illegal purpose’. Furthermore, the phrase ‘illegal organisation’ could be interpreted as applying to legitimate, non-violent organisations that are illegal in their country of operation (for example, opposition groups in authoritarian states). Such groups should not be prevented from speaking at the University. 

It is in the interest of public safety, the prevention of disorder or crime or the protection of those persons lawfully on premises under the control of the University, that the meeting does not take place 

70. This ground should be amended to take into account the ruling in Caesar-Gordon that, when deciding whether to withhold permission for events, universities should not take into account any risk of public disorder outside the confines of the university by persons not within the university’s control (see above, paragraph 12). 

71. Finally, it should also be made clearer that articles 10 and 11 of the European Convention on Human Rights require claims of threats to public order to be substantiated by evidence (see above, paragraphs 17 and 19). 

72. We would therefore recommend that section 5.2 of Appendix B should be amended to read: 

Consent will only be withheld where the University has convincing evidence that is likely that: 

• any speaker intends to engage in behaviour that would violate section 26 of the Equality Act 2010 or section 4A of the Public Order Act 1986; 
• any speaker intends to incite violence or a breach of the peace; 
• the event poses a risk of radicalising students into terrorism; 
• any speaker intends to advance support for a proscribed terrorist organisation; 
• the safety of those persons lawfully on premises under the control of the University, or the prevention of violent disorder on such premises, requires permission for the event to be withheld. 

This wording not only has the benefit of being more clearly defensible in legal terms, but is also much more concise, and easier to follow and apply. 

Burden of Proof (Appendix B, section 4.4) 

73. Section 4.4 of Appendix B states that the Authorising Officer shall grant permission for an event if (s)he is satisfied that there are either no risks associated with the event or that any risks can be adequately mitigated. This reverses the burden of proof that applies under the European Convention on Human Rights, which lies upon the authority that is looking to restrict freedom of expression (see above, paragraphs 17 and 19). It should be amended to state that permission should be granted unless the Authorising Officer is satisfied that there is convincing evidence that one or more of the eventualities listed in section 5.2 of Appendix B is likely to occur, and that there is no way of reasonably mitigating this risk. 

Transparency 

74. At no point does the Code stipulate that the Authorising Officer must give reasons for his/her decisions. Given the need for decisions around sensitive matters such as freedom of speech to be made transparently, as well as the requirement under the ECHR that any restrictions of freedom of expression and assembly be justified by convincing evidence, there should be a requirement upon Authorising Officers to give reasons for any decision to impose conditions on, or refuse authorisation for, an event. 

Birmingham UCU 

September 2024