19 February 2015
Is free speech under attack?
The government has been fast-tracking the Counter-terrorism and Security Bill through parliament with the agreement of the official opposition. However, between its Commons and Lords stages it suddenly introduced clauses requiring universities and higher colleges of education to take on a statutory duty to help prevent terrorism.
These were accompanied by draft guidance for universities which inter alia required them to vet external speakers along with their presentations 14 days in advance. A new and controversial category of 'non-violent extremism' was also introduced by the government in the guidelines – defined as 'vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty, mutual respect and tolerance of different faiths and beliefs'.
There was predictable outcry by the media, by university vice-chancellors and by academics who were unsurprisingly up in arms regarding the negative impact and consequences of the government's so-called 'prevent' strategy on freedom of speech. The government sensibly decided to conduct a hurried consultation on the guidance and the Evangelical Alliance along with others registered strong concerns about the consequences particularly for Christians and their societies in universities, arguing that though sensible measures to guard against terrorism were important, the actual government proposals went too far and might well prove to be effectively counter-productive and probably unworkable.
Following fierce opposition from Peers the government made something of a sensible retreat from the original far-reaching proposals. However, ultimate judgement must be suspended until the final guidelines are seen. Thankfully this will be subject to 'affirmative resolution' which means that detailed parliamentary scrutiny will be necessary before finalisation. This is expected to happen before the general election in May.
In essence the government will require universities statutorily to have 'due regard' to prevent influences towards terrorism whilst at the same time maintaining 'particular regard' for freedom of speech. This is meant to act as a free speech 'safeguard' and it has generally satisfied questioning Peers and MPs, though there are remaining doubts about how the two competing statutory duties will work in practice.
The Alliance was very concerned about the initially draconian nature of the proposals with their potentially severe consequences for freedom of speech, freedom of thought and freedom of association. The latest retreat by the Home Secretary is therefore welcome – but doubts remain.
When the Bill returned to the Commons, Theresa May affirmed that she would continue to listen to concerns as the government proceeds to redraft the guidance. She confirmed by way of reassurance:
"The point of building this directly into the Bill is that it makes it very clear to those exercising this duty that we are introducing for universities under Prevent that they must have 'particular regard', as it says, to the issues of freedom of speech and academic freedom. This makes it absolutely clear that the Prevent duty is not overriding, to put it that way, the academic freedom that we all accept our universities should have."
With regard to tackling the issue of unworkable restrictive and bureaucratic processes imposed on universities through the guidance Mrs May was able to confirm right away that:
"This issue of speakers providing two weeks' notice of what they are going to say is precisely something that we will clarify as not necessary."
When asked by Conservative MP Robert Neil whether "the final document will be so cast that it does not, albeit inadvertently, impede the work of genuine, benign and well-intentioned student bodies such as Christian unions and other groups that are active within our universities." Mrs May confirmed "I can give my hon. Friend that assurance. There is no intention to make any impact on the sort of benign organisation to which he refers."
However, notwithstanding stated intention, former Secretary of State for Communities and Local Government, Hazel Blears, referring to previous arguments in the Lords, raised serious legal doubts about the continuing preeminence of freedom of speech – doubts which so far remain unanswered:
"The noble Lord Bates made a neat attempt to try to make the division between having due regard to and having particular regard to. I am not sure that I would envy him the prospect of litigating on that basis, because it seems to me to be a bit of a philosophical exam question. I know that the Home Secretary will look at that guidance again and make it as practical as possible, but reconciling those two formulations seems to me to be intrinsically difficult. I do not think for one moment that I am capable of reconciling that;that would require a greater philosophical brain than mine. Perhaps it will eventually come to judges."
However, it was left to Muslim lawyer Yasmin Qureshi to voice the doubts of many groups – including Muslims, Christians and others – when she declared not only that the strategy would not work but that it would actually prove counter-productive. Contrary to the general mood of the Commons, but bravely echoing the fears of many, she predicted:
"We are heading towards a McCarthyite state, where everybody will be spying on everybody else, where nursery teachers, school teachers, hospital nurses, doctors and everybody else will say, "My friend said something that may be critical of someone or something. That means I have to report them to the local authority or the police." That person will then be arrested, taken away and questioned. That kind of thing will happen, and it has been happening in recent years. All it has done is cause people to feel angry and to feel that they are being spied on. That is not a British value. It is not how we do things in Britain. British values do not entail spying on our next-door neighbour or the person next to us and reporting them. With the regulations being put on a statutory footing, there will be more and more picking on people, which will not help anyone. It will not make anyone safer… Prevent is the worst possible thing to put on to a statutory footing. It will criminalise people… these kinds of things are going to lead to people being banged up, and in 10 years time we will ask how that happened. It happened, I am sorry to say, because not enough people in this House got up and said that Prevent is a bad idea and the whole process of looking at these things is wrong."
It remains to be seen what happens in practice. Although the government appears to have significantly ameliorated the impact of their initial proposals it will be important to analyze the final shape of the guidance universities will be expected to comply with under a new statutory duty to prevent terrorism and extremism and how they will actually balance this with their existing statutory duty also to preserve freedom of speech. Notwithstanding the Home Secretary's confidence there are remaining doubts as to whether in practice and in the courts the freedom of speech duty will come first. There must be fears that this could represent the thin end of a wedge.