Home secretary Theresa May has said this week that universities need to be more active in preventing the radicalisation of their students by extremist Islamic groups.

But to the extent that she is expecting universities to be pro-active in identifying and preventing radicalisation, there are considerable legal constraints on the ability of universities to take action in this area, and those steps which they do take have to be subject to a careful balancing exercise.

Universities do not have powers of surveillance, even if they were to have the funds to carry out this sort of activity, and their legal relationship with students is founded on the law of contract, not regulatory powers.

There is a large difference between a university providing willing co-operation with the police and security forces in the steps they may take to combat extremism, and a university taking pro-active steps to monitor student activity.

Universities already work with the police to prevent events that would constitute a criminal offence, such as incitement to violence or racial hatred.

But, equally, both universities and police must comply with article 10 of the European Convention on Human Rights.

This provides that there can be interference with the right to freedom of speech only where this is necessary for one of a list of specified purposes.

These include national security; territorial integrity or public safety; prevention of disorder or crime; protection of health or morals; and protection of the reputation or rights of others.

‘Necessary’ sets a high threshold and the structure of article 10 requires a sophisticated balancing exercise that must take account of the content of the speech, the timing, the location, the audience and all other relevant circumstances.

Overall, any measures taken by universities against extremism must be in accordance with both article 10 and article 9, which provides a right to freedom of thought, conscience and religion, subject to similar limitations as apply to the article 10 right.

There are also more detailed legal requirements such as data protection, which may place limitations on universities’ ability to collect new types of data about their students and pro-actively share it with other authorities.

This is an important factor when considering the suggestion that student welfare services might be able to identify vulnerable students at risk of radicalisation and identify them to others within or outside the university, so that action could be taken beyond the pastoral/welfare setting.

A further legal consideration for universities is the Equality Act 2010, which requires that in carrying out their ‘public functions’ universities must ‘have due regard’ to the need to prevent unlawful discrimination, promote equality of opportunity and foster good relations between different groups.

Those duties apply in relation to a number of ‘protected characteristics’, including both race and religion/belief.

On the one hand these duties may justify some action against extremism, for example on the grounds that it will foster good relations between different ethnic and religious groups – but it still requires a balancing act between the interests of different groups.

However, there are straightforward steps that universities can take to demonstrate their awareness of this issue and ensure that they maximise their ability to respond to individual situations.

These include reviewing and updating their policies, such as their equalities strategies, criteria for recognition of student societies and groups, and codes of conduct for both student groups and individual students.

Unacceptable behaviour would be clearly defined and students would be aware of the factors which would be considered when the institution has to balance the interests of various groups within its student body.

Many institutions are reviewing the nature and scope of their contracts with students, as student expectations of their university experience develop and the relationship between student and institution becomes ever more multi-faceted and sophisticated.

The collection and use of student data, restrictions on use of university premises and data protection compliance are key areas in such a review.

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Julian Gizzi is a partner in Beachcroft’s public sector group