Would the new Bill of Rights impact free speech on campus?

You’re a university or students’ union official (in England). Someone’s proposing an event featuring a speech from a highly controversial figure.

Those proposing the event are reminding you of your duty to secure freedom of speech within the law, a duty that’s about to be strengthened via the Higher Education (Freedom of Speech) Bill.

But there’s also a bunch of people arguing that the presence of the speaker – and what they are likely to say – would constitute harassment under the Equality Act 2010. What do you do?

As it stands, the Equality and Human Rights Commission already has some advice on the balance to be struck between these duties:

Whether or not behaviour is harassment is not just based on the view of the person making the complaint. The courts consider whether it is reasonable for the behaviour to have that effect, as well as the circumstances. They have to balance competing rights, including the right to freedom of expression of the person responsible.

The harassment provisions cannot be used to undermine academic freedom. Students’ learning experience may include exposure to course material, discussions or speaker’s views that they find offensive or unacceptable, and this is unlikely to be considered harassment under the Equality Act 2010.

Also, if the subject matter of a talk is clear from material promoting an event, then people who attend are unlikely to succeed in a claim for harassment arising from views expressed by the speaker.

Views expressed in teaching, debate or discussion on matters of public interest, including political or academic communication, are therefore unlikely to be seen as harassment, even if they are deeply offensive to some of the people who are listening, as Article 10 will protect them.

That wasn’t enough to stop the Common Sense Group of MPs, in the earth form of John Hayes MP, nevertheless submitting an amendment to the free speech bill that would have amended the Equality Act to make it harder for someone to restrict free speech to rely on the act.

From the opposite end of the see-saw, Labour tried an amendment that would have asked the Office for Students to be mindful of the right for students to “feel safe” on campus when regulating the duty.

Both were rejected by the government in favour of the status quo – further and higher education minister Michelle Donelan said:

The duty in the Bill to take “reasonably practicable” steps to secure freedom of speech and academic freedom will allow for relevant considerations to be taken into account. In particular, it will allow for other legal duties, such as those under the Equality Act and the Prevent duty, to be considered.

She went on:

Reasonably practicable” is a commonly understood term used across the statute book. It means that the relevant body can take into account all the other legal duties on a case by case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

So basically her argument was – universiuties (and SUs) will continue to have to balance their duties.

That was already an approach not necessarily matched by the “freedom from harm” v “freedom to speak” seesaw included in the Online Safety Bill. But now there’s a whole new kettle of fish to contend with – Justice Secretary Dominic Raab’s Bill of Rights Bill (that’s not a typo, it’s what it’s called).

In the consultation over the bill last December, the government’s position was:

The government is also clear that freedom of speech and academic freedom are fundamental principles, not least in the higher education sector. Academic freedom has rightly enjoyed a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression. This is due to the special place our universities have historically held as centres of enquiry and intellectual debate.

And in today’s response that accompanies the bill, we get this:

We will provide that great weight should be placed on the importance of protecting freedom of speech whenever courts or other public authorities are considering an issue involving freedom of speech, and when balancing the right with other rights and protections.

Although our proposals will give greater weight to freedom of speech, it remains a qualified right which, as with Article 10 overall, can be restricted where it is reasonable and appropriate to do so. The Government also recognises that there are certain circumstances in which the right to freedom of speech should not be strengthened. The Bill of Rights will outline specific exceptions, for example national security interests.

The proposed legislation says that when determining a question which has arisen in connection with the right to freedom of speech, a court must give “great weight” to the importance of protecting the right – where “the right to freedom of speech” means the Article 10 Convention right (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).

Until now, I was pretty confident that there’s enough case law around on the interaction between Articles 10 and 187 in the Human Rights Act that would mean a university or an SU would feel able to turn down a speech explicitly on holocaust denial.

I’m less clear what this “great weight” thing would do to that balance given that holocaust denial itself remains legal in the UK. And I’m even less clear now on whether an SU or university could stop a known holocaust denier from appearing, even if they were billed to speak on thermoplastics.

Outside of the extremes of holocast denial, this question of where one should draw the line(s) remains. Imagine if a pro-life religious group was aggressively shoving leaflets featuring foetuses into the faces of your students at Freshers Fair. Does this wording change things in terms of where you “think” the line is? (my bolding)

Freedom of thought, conscience and religion… The court must have particular regard to the importance of the right.

Will the repeal of Section 3 of the Human Rights Act – which right now requires anyone interpreting the law to do so in a way that is compatible with human rights – change the balance?

I could go on. These things seem hard for a university with an expensive legal team to determine, let alone Bobbleton College of FE, who happens to have some HE provision, is therefore regulated by OfS, and so whose tiny SU is covered by the Free Speech bill. Maybe guidance from OfS (and the EHRC?) will cover it. Maybe it won’t.

One response to “Would the new Bill of Rights impact free speech on campus?

  1. I was listening to the show this morning and DK said (at 42:25) that the repeal of the HRA 1998 and the new Bill of Rights Bill (sic) is ‘great news for lawyers’. I can probably see what he meant but it really isn’t great news for lawyers. A quick glance at legal twitter (academic and practising) shows that many/most/all lawyers are gravely concerned about the Bill and its implications for human rights and the rule of law. I’m sure DK didn’t mean to, but his comment unwittingly plays into the government narrative around meddling lefty lawyers, when the reality is that lawyers have been, and are, essential to the defence of our rights.

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