This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

Can a British university lawfully hold an event for a speaker who advocates non-violent religious extremism? That is one of the questions raised by the latest UK counter-terrorism legislation, the Counter-Terrorism and Security Act 2015 (CTSA).

(For a summary of key CTSA provisions, see my earlier post.)

The CTSA imposes two parallel positive duties on universities. It imposes a duty to “have due regard to the need to prevent people from being drawn into terrorism.” That deradicalization duty, which is not yet in force, extends to universities and is enforceable at the suit of the Secretary of State. One consequence of it is that universities must restrict speech where it would draw people into terrorism. But the CTSA also requires universities to have “particular regard” to their pre-existing duty “to ensure freedom of speech” and to the “importance of academic freedom.” This “particular regard” provision was inserted after universities raised concerns about the effect of the deradicalization duty on free speech. This pro-speech duty as laid out in section 1 of the Education Act (No.2) 1986 requires universities to “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.”

Being burdened with such conflicting duties is an unenviable position. This is especially so since there is no guidance whatsoever on how universities are supposed to manage these duties in the context of external speakers and events. The UK government’s guidance, issued on March 12, which universities must follow when carrying out the deradicalization duty, states, “There will be further guidance issued on the management of external speakers and events … .” This significant lacuna reflects continuing political dissent on how to manage the issue. It can only be hoped that such guidance is forthcoming before the deradicalization duty comes into force so that it can be properly analyzed and considered by universities. The urgent need for such guidance is apparent from the following four observations on the deradicalization duty.

First, the deradicalization duty gives universities a justification for restricting free speech. How so? 

  • The pro-speech duty is to secure “freedom of speech within the law,” which includes the freedom of expression set out in Article 10 of the European Convention on Human Rights (ECHR) and the common law principle of free speech.
  • Free speech in both its ECHR and common law forms is a qualified right, as is apparent from Article 10 which states that the exercise of the right may be subject to such conditions or restrictions “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 the reputation or rights of others.”
  • The deradicalization duty gives universities a prima facie justification for restricting speech, since it is “prescribed by law” and “for the protection of the rights of others.”
  • In order to rely on the deradicalization duty as a justification, universities would need to show that (a) as a matter of fact, the restriction on the particular speaker’s speech was necessary to prevent people from being drawn into terrorism, and (b) the restriction on speech was proportionate. The fact that the deradicalization duty is unclear will hinder universities in so showing, as I explain in my third point below.

Secondly, the deradicalization duty provides a justification that is broader in scope than other preexisting justifications for restricting free speech:

  • There are not many examples of statutorily ordained restrictions on free speech; perhaps the closest relevant example is the Racial and Religious Hatred Act 2006, which criminalizes certain kinds of speech.
  • The 2006 Act defines “religious hatred” as “hatred against a group of persons defined by reference to religious belief or lack of religious belief” and makes it an offense for a person to use threatening words or behavior or display any written material that is threatening if he intends thereby to stir up religious hatred (with some exceptions and qualifications). But the Act also states that this cannot be read or given effect “in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”
  • The offense in the 2006 Act is therefore a narrow one and requires intent. It is doubtful that the speech or conduct of a speaker advocating non-violent religious or right-wing extremism would be caught within the scope of this offense and so a restriction on his speech could not be justified by reference to the 2006 Act.
  • However, the speech or conduct of such a speaker might draw people into terrorism and thus universities could rely on the deradicalization duty to justify a restriction on his speech.

Thirdly, although the deradicalization duty gives universities this additional, broader justification for restricting speech, it is not at all clear how the duty will be applied in practice. The lack of clarity is the real problem with the deradicalization duty. An ill-defined justification — which is what it is at present — will be either ineffective or violate the right to free speech. Some of the ambiguities are:

  • Although terrorism is defined in the CTSA (by reference to the definition in the Terrorism Act 2000), it is not clear how the definition applies when considering whether someone might be “drawn into” terrorism. “Terrorism” is defined by the Act as:

1) … the use or threat of action where–(a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it–(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section– (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.

  • The Government’s working definition of “extremism” in its March guidance does not shed any further light on the matter because that definition is also very broad, is not easily reconcilable with the definition of “terrorism,” and has no formal legal status. The March guidance states:

Terrorist groups often draw on extremist ideology, developed by extremist organisations. Some people who join terrorist groups have previously been members of extremist organisations and have been radicalised by them. The Government has defined extremism in the Prevent strategy as: “vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces.”

  • Does the “need to prevent people from being drawn into terrorism” mean that a restriction on speech is justified only when the speech would draw people into terrorism, and if so, how is that to be assessed — on an objective basis, by reference to evidence, or in some other way? Or is it sufficient if the speech poses a risk of drawing people into terrorism, and if so, what degree of risk is necessary and, again, how is that risk to be assessed?

Fourthly, the parallel duties put a burden on universities positively to consider whether speech should be restricted to prevent people from being drawn into terrorism. Not only does that create an additional administrative burden, with obvious resource implications, but it is also likely to have an inhibiting effect on the freedom of academic discourse. The opacity of the deradicalization duty will only increase the administrative burden and the potential for academic discourse to be stifled.

This brief consideration of a complex issue shows that clarification is urgently needed on the scope and application of the deradicalization duty as a justification for restricting free speech — and that such clarification is required well before the duty comes into force so that its implications can be properly considered.