Guidance for external speakers
Download the guidance for external speakers in PDF format.
Approved By The University Executive Board in January 2017.
Memorandum of Association
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Single Equality Policy Statement
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Code of Practice on Freedom of Speech
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2. Legal context
The key legal issues that are considered in relation to external speakers are:
- The duty to secure freedom of speech within the law
- Human Rights law
- Equality law
- Criminal law (including Counter Terrorism laws)
- The duty of care to staff, students and visitors
- Civil law claims relating to spoken words
- Data sharing
- Charity law
- Law relating to security staff
- Students’ unions
- Third party bookings of university/students’ union premises
A. The duty to secure freedom of speech within the law
places a direct obligation on 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”. This duty “within the law” extends to ensuring “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.”
For the purposes of the Act, the university’s duty extends to students’ union premises, even if the university does not own them; see the heading “Students’ Unions” below further in relation to this. Pursuant to the s43 duty, the Act also requires universities to issue and keep updated a code of practice setting out the procedures to be followed by members, students and employees in connection with the organisation of meetings and activities, and the conduct required by them. The university’s governing body may include such other matters in the code as it considers appropriate.
The university is also under a duty to take such steps as are “reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code…are complied with”. For example, this may apply to a situation where an individual or group behaves in a way which seeks to prevent an invited speaker from proceeding with their speech; institutions should however check that their disciplinary procedures allow action to be taken in such circumstances. The concept of “academic freedom” is not directly applicable to external speakers, but is a question of employment law between the academic and his or her employing institution.
B. Human Rights Law
The Human Rights Act 1998 (HRA) in effect incorporates significant elements of the European Convention on Human Rights into UK law. Universities need to have regard to the HRA when making decisions about external speakers, both since they may be public authorities for certain purposes, and because the UK courts are obliged to interpret UK law in accordance with the Act. The following rights are of potential relevance to external speakers: Article 9 on freedom of thought, conscience and religion; Article 10 on freedom of expression; and, Article 11 on freedom of assembly and association.
These rights are qualified rights, which broadly means that national laws can place limitations on them to the extent necessary in a democratic society in order to protect matters such as public order, public safety, crime prevention, national security and the protection of the rights and freedoms of others.
Article 14 prohibits discrimination in relation to the enjoyment of the above rights on any ground such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
C. Equality Law
Universities owe duties to both staff and students under the Equality Act 2010, and in some respects these duties can extend to the activities of external speakers. The Act protects certain “protected characteristics”, namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The meaning of the phrase “religion or belief” is likely to have particular importance in relation to some external speaker events. It has been widely interpreted in the employment law context and advice should be sought if it is unclear whether a “religion or belief” is engaged. In outline, the definition includes various aspects of religious and non-religious beliefs and political philosophies, although there is ongoing legal debate as to the extent to which it protects membership of political parties and similar political organisations.
Unlawful discrimination can occur in various ways:
- through “direct” discrimination (less favourable treatment because of a protected characteristic)
- through “indirect” discrimination (the application of a provision, criterion or practice which has a discriminatory effect on someone with a protected characteristic)
- through harassment (engaging in “unwanted conduct” related to a protected characteristic, which includes verbal harassment)
- through victimisation (subjecting someone to detrimental treatment because they seek to bring proceedings under the Equality Act, for example).
Again, the above is a brief outline of the concepts and advice should be sought if it is necessary to consider the provisions in detail. For example, in relation to “harassment”, a university can be liable for the harassment of staff by third parties, such as external speakers. Further, under the Public Sector Equality Duty (PSED), universities are obliged to have due regard to the need to:
- eliminate discrimination, harassment, victimisation and other conduct prohibited by the Act
- advance equality of opportunity between persons who share a relevant protected characteristic and those who do not and
- foster good relations between persons who share a relevant protected characteristic and those who do not.
Universities will therefore need to have due regard to their obligations under equality legislation when (for example) considering what policies and codes of practice to adopt, and when making decisions about external speaker events.
D. Criminal law (including anti-terrorism legislation)
A number of criminal offences can potentially be committed by spoken words, typically involving threats of violence or certain categories of “hate crime”. In relation to Counter Terrorism legislation referred to below, there are also offences in connection with arranging/attending meetings and terrorist training events.
Examples which illustrate the range of offences are:
- threats of violence
- using threatening, abusive or insulting words or behaviour or disorderly behaviour within hearing of someone likely to be caused harassment, alarm or distress
- using threatening, abusive or insulting words or behaviour, including via computer-mediated communication
- to another person with intent to cause that person to believe that immediate unlawful violence will be used against him or another
- or to provoke the immediate use of unlawful violence by another
- or to cause another to believe that such violence will be used or is likely to be provoked
- using threatening, abusive or insulting words or behaviour either with the intention of stirring up racial hatred, or in circumstances where it is likely racial hatred will be stirred up
- using threatening words or behaviour with the intention to stir up religious hatred, or hatred on the grounds of sexual orientation, subject to certain free speech protections
- speech which constitutes a “course of conduct” amounting to harassment within the meaning of the Protection from Harassment Act 1997.
In addition to the general criminal laws referred to above, the Counter Terrorism legislation Terrorism Act 2000 (TA2000) also creates various offences which might potentially be relevant when considering external speaker issues. It is beyond the scope of this guidance to set out every provision in detail, but in outline the offences are:
- Professing to belong to a “proscribed organisation”
- Inviting support for a proscribed organisation
- Arranging, managing or assisting in arranging or managing a meeting of three or more persons which is known to support a proscribed organisation, to further the activities of a proscribed organisation or to be addressed by a person who belongs or professes
- to belong to a proscribed organisation
- Addressing a meeting of three or more persons where the purpose of the address is to encourage support for a proscribed organisation or to further its activities
- Wearing, carrying or displaying clothing or articles which arouse reasonable suspicion of membership or support of a proscribed organisation
- Inviting another to provide money or other property with the intention that it should be used, or having reasonable cause to suspect it might be used for the purposes of terrorism
- Providing or receiving training in relation to “terrorism skills” or “weapons training”
- Attendance at a place used for terrorist training
- Collection or possession of information useful for acts of terrorism
- Inviting another to provide money or property with the intent that it should be used (or having reasonable grounds to suspect it will be used) for terrorist purposes. There are various other “terrorist property offences”.
- Publishing statements encouraging terrorism and disseminating terrorist material.
The above outlines a number of detailed criminal offences, but in order to assess whether an offence has been committed it is necessary for the precise requirements of the relevant statute to be met. The legislation does specify that certain defences to the above offences are available in some circumstances, but a detailed exposition of these is beyond the scope of this guidance. Another category of both criminal and Terrorism offences which might be relevant to external events are those which relate to written (including electronic) material. In the context of an external speaker event, it is possible that such offences could be committed through publicising the event, if the requirements of the relevant statutory provision are met (broadly these relate to offences of publishing statements encouraging terrorism and disseminating terrorist material).
Legislation by the Prevent duty - statutory guidance issued to HEIs under the Counter Terrorism and Security Act 2015. In practice, the Duty requires those assessing external speakers for events at the University to be conversant with formats involving multiple speakers, at least one of whom may be regarded as 'extremist', as such speakers are no longer to be allowed an unchallenged platform. The working definition of 'extremist' is from the glossary of terms in the Prevent Strategy 2011 - an individual who 'actively and vocally opposes British values'. Theoretical case studies are given below in Section 3 to illustrate how to assess 'the mix': the composition of an event, and in particular, the probable relationship between speakers, and how that can be managed to provide a safe yet lively and informative discussion.
In addition to the categories of offences outlined above which are most likely to be relevant to speaker events, there are various other associated Terrorism offences which are beyond the scope of this guidance. It is also worth noting that in certain cases, acts which are committed outside the UK can be offences under UK terrorism legislation.
Generally, there is no legal obligation to prevent or report criminal activity under UK law, however in the case of certain terrorism activities and offences, the law does in certain circumstances impose a positive duty to report matters to the police, and failure to comply is a criminal offence. In cases where suspected terrorist or other criminal activity does not fall within the scope of the “duty to disclose” offences [TA2000 s19], an institution wishing to consider making a disclosure to the police will still need to consider issues relating to data sharing under the Data Protection Act 1998 (DPA) (see below Section G).
Although not technically a criminal offence, both the police and ordinary citizens have powers to arrest in relation to a breach of the peace. Again, it is not the intention of this guidance to provide a detailed explanation of the law relating to breach of the peace. Concern that a breach of the peace may occur (in addition to other criminal offences) may be a factor when considering a university’s duty of care in relation to staff, students and visitors (see below), but any decisions would need to be based on cogent evidence, taking account of the university’s other duties, including those in relation to freedom of speech outlined above. Police have a power of entry without warrant under common law to prevent or deal with a breach of peace on private property.
If there are concerns that a meeting will be disrupted, one option may be to declare the meeting to be a “public meeting”. Police have further powers in relation to such meetings under the Public Meeting Act 1908. Under the Act, it is an offence to act in a disorderly manner for the purpose of preventing the transaction of the business for which a lawful public meeting was called. It is also an offence to incite someone to act in such a manner. Further offences are created by the Public Order Act 1986 in relation to potentially disruptive processions and assemblies in certain circumstances.
E. The duty of care to staff, students and visitors
Universities have duties under health and safety legislation to ensure, so far as reasonably practicable: the health, safety and welfare at work of their employees; that they conduct their undertaking in such a way that persons not in their employment who may be affected thereby (eg students, external speakers and other visitors) are not exposed to risks to their health and safety.
These duties might be relevant if it is anticipated that protests or violence might take place at an external speaker event. Given the other legal obligations that universities are under in relation to speaker events, it would be advisable for universities to have proper evidence to substantiate any concerns in relation to health and safety (for example through obtaining advice from the police, and minuted meetings considering that advice and any advice from the university’s own security staff).
F. Civil law claims relating to spoken words
An external speaker can be liable for defamatory remarks, or those which amount to “malicious falsehood”. However, concern that defamatory remarks might potentially be made by a speaker does not displace the duties on universities to secure freedom of speech, nor to uphold principles under human rights law. Defamation law provides a remedy to a person defamed, who can bring proceedings for damages and/or an injunction preventing defamatory remarks. Any such injunction would not prevent a speaker from being given a platform, but would prevent them from making specific defamatory remarks. The Protection from Harassment Act 1997 also enables someone who has been harassed to bring civil proceedings for damages, or for an injunction or interdict preventing threatened harassment. The grounds for such a claim in effect mirror the criminal offence created by the Act.
G. Data Sharing
Where universities wish to share information with the police, they can only do so in accordance with the terms of the DPA. The DPA will also need to be complied with where a students’ union or society wishes to share personal data with a university. Ultimately if there is any doubt as to whether the police are entitled to certain information, then a university can insist that a court order is obtained by the police compelling disclosure. This will address any concern over whether the police request is legitimate and proportionate, and whether disclosure would be in accordance with the DPA. Requests for information which may be DPA-exempt under s29 of the Act, (or under s28 for the purpose of safeguarding national security) must be directed to the Information Compliance Manager by email: [email protected]
H. Charity law
Under the Charities Act 2011 (CA), charities (including universities and students’ unions) must be established for charitable purposes only. Charitable purposes must meet what is called the “public benefit” requirement (CA s2.1b). The Charity Commission’s non-statutory guidance (January 2013) has suggested that under the public benefit requirement, there may be “extreme views and activities … which may be inappropriate for a charity to host or promote”. However, although most universities are charities, universities have a clear statutory duty to secure freedom of speech: s43. The courts would also be obliged to interpret the CA in accordance with the HRA, including Article 10 on freedom of expression, where any limitation on such rights must be necessary in a democratic society.
I. Law relating to security staff
Security staff may be called on to assist in the case of controversial speaking events. In certain circumstances, security staff like ordinary citizens, do have a power of arrest. However, there are risks in terms of civil liability for wrongful arrest or assault if the power is used inappropriately. Reasonable force can be used in preventing crime, or in effecting or assisting the lawful arrest of an offender or persons unlawfully at large, but it would ultimately be a matter for the court to decide whether the force used was “reasonable” in all of the circumstances. If excessive force has been used, the university and/or security firm providing security cover can be vicariously liable for a civil claim for assault. Given the potential civil liability in the event that can ensue for wrongful use of the power of arrest, there is significantly lower risk for a university if the police carry out arrests rather than private security staff. However, judgments will need to be exercised on the ground by properly trained staff, taking account of all the circumstances, including the balance of risks.
J. Students’ unions
Students’ unions also need to have regard to the legal frameworks. Whilst they are not public bodies for PSED and HRA purposes, they are mostly charities subject to the requirements of charity law. They also need to have regard to the scope of the criminal law and potential civil liability in relation to external speaker events. A particular question for universities arises where a students’ union decides that an external speaker event should not proceed, but the university considers that this decision may conflict with its duty to secure freedom of speech within the law under s43 (see above). As noted above (The duty to secure freedom of speech within the law), universities’ duty under s43 extends to students’ union premises even if these are not owned by the university. This means that universities owe duties in relation to their students’ union premises, regardless of whether those premises are, for example, leased by the union from the university, or indeed from a third party. Whilst s43 undoubtedly places a duty on a university in relation to the students’ union premises, there is a separate question of how it complies with that duty, given that the students union is a distinct legal entity with its own policies and procedures. There are two aspects to this question.
The first aspect is whether the s43 duty also applies to the legal entity that is the students’ union (in most cases the legal entity will be an “unincorporated association” consisting of the students’ union members and officers) rather than just creating a duty on the part of the university in respect of speaker events in the students’ union premises. The s43 duty applies to “every individual and body of persons concerned in the government” of the institution.
Whether that definition includes a students’ union might be open to legal argument, taking account of the particular facts, including the legal status of the students’ union and its relationship with the institution. The second aspect is that the s43 code of practice should set out the procedures to be followed by students, and should make non-compliance with the code a disciplinary matter. Under s43, universities are under a duty to “take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures)” to secure compliance with the s43 code of practice.
Institutions and students’ unions should therefore seek to align their policies and procedures in relation to external speakers, taking account of the institution’s s43 duty. Ultimately if there is a conflict between the decisions taken by a students’ union and those of the institution, the institution will need to consider what steps it is “reasonably practicable” to take to secure compliance with the code of practice and s43 duty, eg through disciplinary action and/or arranging an alternative event.
K. Third party bookings of university/students’ union premises
The above legal frameworks can also potentially apply to third party bookings of university/students’ union premises that involve speaker events. Institutions should try to ensure that the contractual terms of such bookings are aligned with the relevant legal obligations to ensure that the institution is able to exercise appropriate contractual rights if necessary to comply with any legal requirements.
3. Speaker assessment and approval
3.1 Email Template for Initial Contact with a Potential External Speaker
(Note: this template is to be used with discretion, it is set out here in formal terms and thus should be modified to suit the recipient)
“As academics we strive for excellence in all we do but our academic agenda is underpinned by strong values: to nurturing talent, to academic freedom, and to wider society. We pride ourselves in our commitment to diversity, and to sustaining a mixed and balanced community. We will continue to provide safe spaces to discuss and debate the difficult issues facing our world but academic freedoms come with responsibilities and we shall be increasingly vigilant in ensuring that those responsibilities are honoured and evidenced.” - Vice Chancellor, 2013
I am writing to you as I have been informed that you have been invited to address an audience at the University. Please see our Single Equality Policy Statement. In particular, your compliance with the spirit of the section entitled ‘Building Good Relations’ is required as a basis for this application.
In addition, I would appreciate a short conversation with you about your compliance to it, and the standard requirements of the University's other policies and procedures, for your attendance as an external speaker. We can then proceed with completing the room booking.
Please also read Code of Practice on Freedom of Speech.
Please let me have your contact details to speak by telephone or via Skype, with times convenient to talk.
External speakers are to be interviewed in order to establish their position in the relevant criteria predetermined (see section 4 below). This is conceived as a ten minute conversation with the External Speaker Assessor (see below) or an appointed person acting on the External Speaker Assessor’s behalf. Questions include any previous speaking engagements, event title, reason for invitation, speech content and verifying boundaries between that and unacceptable expression or conduct. The quality and tone of responses are listened to carefully to gauge the likelihood of accuracy of answers.
Note: an External Speaker Assessor (ESA) is the member of staff responsible for interviewing the potential speaker. It should be someone in the relevant department who has been trained to do so.
|Booking||External Speaker Assessor|
|Students' Union Society||Engagement and Activities Manager|
|Commercial||Conference and Venues Sales Co-ordinator|
|Academic||Dean of Faculty|
Please contact the Interfaith Adviser or Assistant Interfaith Adviser to enquire about interview training.
3.3 Additional approval
Individual speakers and related event formats are assessed on these aspects and ranked according to it (see section 4 below). At a transparently established level, additional approval in such cases will be secured from any two of the following members of the senior management team (SMT): Deputy Vice-Chancellor, Pro Vice-Chancellors, Registrar & Secretary, Director of Finance, Deputy Registrar and Secretary. In cases where the event forms part of a programme or series of events organised by a particular group or organisation, the assessment will be made in the context of the whole programme or series, and may lead to a restriction on all future speakers for that programme or series, or to events organised by that group or organisation.
3.4 Objections to External Speakers
Notwithstanding the careful application of these guidelines, the University may receive objections to the presence of a Speaker already approved. These objections may be received in the form of communications from external bodies or from groups or individuals internal to the University.
Such objections shall be considered in the first instance by the External Speaker Assessor. S/he will confirm that the speaker has been approved through the guidelines and that any information provided by the objector/s has been taken into account. The External Speaker Assessor shall contact the objector, if necessary, to obtain confirmation of any information provided to support the objection.
If the Speaker has been already approved, the objector/s will be informed of this. Should the objector/s wish to pursue the objection, they should be told to provide the External Speaker Assessor, in writing, with details of the objections and the reasons for them. These representations shall be considered by any two of the members of the senior management team as set out in the preceding paragraph. The two senior managers assessing the objection shall have absolute discretion to call for any further information they reasonably require to inform their consideration of the objection. Their decision on whether or not to allow the Speaker shall be final. They may also in the light of their considerations impose, as a condition of agreement to the Speaker, any measures they see fit at the event itself, eg additional security measures, recording of the event. The External Speaker Assessor shall notify the objector/s of the decision.
3.5 Factors to consider for organisers
Prioritisation of assessing one speaker over another, or delays in arranging an interview which inevitably may arise, mean that events will need to be planned further in advance. Speakers must be confirmed as available and contact details given to the External Speaker Assessor at least 3 working days before the next RAC deadline for speaker applications, for events occurring at least 3 working days after the following RAC meeting. Any concerns about a ‘controversial’ speaker would aim to address in that time with reference to the Code of Practice on Freedom of Speech (specifically paragraph 3.2). Also, it allows for conducting risk assessments and consultation as may be required.
Here are some examples of event formats to avoid unchallenged single speaker in a lecture-type setting; speeches that overrun and leave little time for questions; debates without active participation from the floor; audiences where any tensions are not addressed; and, ambiguous or potentially misleading titles and themes.
There are other factors to consider which arise from time to time, not specifically about external speakers but related to events involving them. These are mainly from the Estates and Facilities and Marketing perspectives. Although this document is not intended to address these possibilities, it is certainly possible to discuss any concerns including them with the External Speaker Assessor at any time. This extends to all students and staff who are not involved with organising the event, and again adequate notice must be given on which intervention or mediation may be required.
The acceptable choice of opposing speakers should meet the following requirements, at least confidently in principle:
- Encourages the spirit of critical and empathic enquiry without frustrating the expression of others' controversial opinion
- Promotes views aligned to British and University values and is able to articulate with rebuttal opposition to views opposed to those values
- Expresses with some fluency those ideas which are relevant to discuss and refute - given the theme of the intended event, while also allowing for occasional off-topic digression
- Understands 'mutual respect and tolerance for different faiths and beliefs' in a meaningful way
- Conversant with the principles of freedom of speech, its rights and restrictions, and within that can explore new, unusual or variant ideas according to the concept of academic freedom.
3.7 Role of the Chair
It is imperative that the chairing of a multi-speaker event of this nature is also given adequate consideration. For example, heckling can be an interesting feature of debate and one which should not be automatically suppressed. An experienced chair will know how best to handle it, without the quality of the event deteriorating.
Training for chairing debate on sensitive or controversial topics is available but if there is not sufficient confidence that an event will be conducted safely, additional requirements are necessary to mitigate that risk. Depending on the particular composition, having conversation agreements between the speakers beforehand and briefing the audience may be sufficient.
3.8 Referral of Speaker Applications
External Speaker Assessors should work closely with event organisers well in advance of the date of the intended event. This is particularly relevant when initial background checks and interviews with speakers, indicate concerns matched to criteria on 'the grid' of Annex A need escalating to the RSA Committee via the appropriate person. Details of deadlines for submitting applications in advance of Committee meetings are available.
4. Speaker assessment criteria
|1 low||2 low-mid||3 mid||4 mid-high||5 high|
|A Objectionable views||A1||A2||A3||A4||A5|
|B Reputational risk||B1||B2||B3||B4||B5|
|C Political emphasis||C1||C2||C3||C4||C5|
A. Objectionable views
- low: has a comprehensive understanding and conversant ability to promote both UK and University of Westminster values.
- low-mid: has a passive acceptance of what policy compliance means as an unwelcome but necessary obstacle to self-promotion.
- mid: has little understanding of UK and University of Westminster values whilst expressing ideas which are otherwise marginally discordant.
- mid-high: voices indignation at being subjected to policy compliance and is not concerned with potential effect on others.
- high: explicitly criticises UK and University of Westminster values and expresses views or beliefs which are vocally rejected by others.
B. Reputational risk
- low: has a track record of attending events which attract positive media coverage without causing any offence.
- low-mid: is prepared to confront facts or allegations which caused or are causing a controversial reputation including address to the audience.
- mid: has attended one or more events which provoked a mixed response in the media which has not been countered.
- mid-high: is controversial and places little significance on that fact or is an unknown entity without any track record or qualification.
- high: attendance is likely to cause or already has caused an adverse reaction which is no longer balanced by any significant benefit.
C. Political emphasis
- low: has a spiritual or introspective disposition encouraging critical thinking and without affiliation to known organisations.
- low-mid: inclined to promote development of new ideas rather than challenge the existing ones.
- mid: offers ideas as a blend of public and private matters or discusses public opinion from more than one perspective.
- mid-high: inclined to challenge the existing ideas rather than promote development of new ones.
- high: part of an organised campaign or known activism linked to current affairs which seeks to recruit to an ideology or grand strategy.
- mid level response record event.
- mid-high level response record event with security present.
- high level response record event with security present and consult relevant external agencies.
A note on ‘UK values’
For the purpose of providing a working definition on values forming the national identity: “Extremism is 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, whether in this country or overseas.” Prevent Strategy Annex A, 2011 (Emphasis added). See section 2D above.
Author: Yusuf Kaplan, Interfaith Adviser, [email protected]
Updated on: 1 December 2016
Next review due: 1 December 2017