The Committee for Academic Freedom and Alumni for Free Speech have submitted a joint response to the University of St Andrews’s consultation on freedom of speech.
Several members, including current and former members of the St Andrews community, drew our attention to the consultation and raised concerns about how the University’s new freedom of speech principles would be operationalised.
Having reviewed the materials, we are encouraged to see St Andrews recognising that it is not its job “to attempt to shield individuals from ideas and opinions they disagree with, or which offend, shock, or disturb”. We also welcome the University’s intention to embed free speech principles across training, guidance and policies, so that they “help enable FoS and do not inappropriately constrain it”.
Our concern, however, is that the University’s current harassment policy, though an obvious example of the kind of policy contemplated by these proposals, does not appear to fall within the scope of the consultation or its proposed changes.
That matters because while members of a university community may not routinely consult a freedom of speech code before engaging in teaching, research or debate, they are all too likely to consult a dignity-at-work policy once speech has already given rise to offence or complaint. The harassment policy therefore plays an important role in shaping practical understandings of the boundary between protected expression, conduct that may warrant managerial intervention, and unlawful harassment. In the consultation’s own terms, it is precisely the kind of policy that can either “enable” or “constrain” freedom of speech on campus.
As we explain in the response, the current policy does not adequately communicate the full statutory harassment test under section 26 of the Equality Act 2010 – the very test it purports to summarise – and risks treating the complainant’s perception as sufficient in itself. This is not tenable, since the statutory test also requires consideration of “the other circumstances of the case” and whether it is reasonable for the conduct to have had that effect.
Those safeguards are especially important in higher education, where intellectual and conceptual challenges to orthodoxy may instantly provoke the gnashing of activists’ teeth and the shedding of many fluid ounces of performative tears. But the fact that expression arose in research, teaching, public events or extramural academic commentary may be central to the legal assessment – and, ultimately, to the rejection of the complaint. If those circumstances are under-emphasised, the university’s status as a site for testing ideas, tolerating disagreement and protecting academic freedom is fatally undermined.
To address this, our consultation response recommends changes to the harassment policy, designed to reflect the law as written and ensure that the University’s draft free speech principles can do the work they are intended to do.
In addition, we suggest that St Andrews amend its list of examples of conduct that may constitute harassment to include harassment related to protected philosophical belief. The current examples cover several protected characteristics, but omit belief. It’s a curious omission, since gender-critical beliefs, in particular, have been recognised as protected following Forstater v CGD Europe, while the Court of Appeal’s judgment in Higgs v Farmor’s School confirmed that employers cannot simply punish the manifestation of protected beliefs because others take offence, or draw hostile subjective inferences from them. Staff therefore need clear, practical guidance that a person may be harassed because of a protected philosophical belief, not a subtle – and no doubt, of course, entirely unintentional – sense that such beliefs “do not count”.
Finally, we suggest that any revised harassment training should use realistic examples, grounded in the nuance of real-life disputes, to help staff distinguish between protected expression, conduct that may warrant intervention, and conduct that crosses the legal line.
You can read the letter in full here.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.