The notion of freedom of speech within the law played a key role in this case, and in her judgment Lieven J observed that “there is an immediate question as to what ‘freedom of speech within the law’ means and how it relates to the need to undertake a proportionality balance within Article 10 of the ECHR, in order to comply with s.6 of the Human Rights Act 1998” (200). The latter states that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”.
Proportionality
The matter of the “proportionality balance” within Article 10 had originally been raised during the Bill’s passage through the Lords when the crossbencher Lord Hope stated that it seemed to him that “the words ‘within the law’ beg the question of what exactly that expression means”. He thus put forward two amendments. The first proposed writing into the Bill that “‘freedom of speech’ refers to the Convention right of freedom of expression set out in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms”. The reason for this, he explained, was “to avoid a possible inconsistency between the right to freedom of expression which this Bill seeks to protect and the right to freedom of expression in Article 10 which is the subject of other legislation which may come before the House”.
The second amendment, which was also supported by the Conservative Lord Moylan and the Labour Lord Collins, proposed that “‘within the law’ means that the exercise of this freedom is subject to the duty to respect the rights of others and not to do or say anything that is prohibited by any enactment or rule of law”, which clearly relates to Article 10(2), as Lord Moylan stressed in his contributions to the debate. This introduces a number of key factors which can legitimately limit freedom of expression, and as these play a central role in what Lieven J called the “proportionality balance” in the Sussex case, it is worth quoting Article 10(2) in its entirety here:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties 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 health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Lord Moylan himself suggested that:
The Government have slightly misconceived the issue: it is not a definition of freedom of speech but rather a definition of the legal framework within which freedom of speech is to be understood. That is, the meaning of the words “within the law” is at issue slightly more than that of the words “freedom of speech”.
This observation has considerable relevance to the issues raised in Sussex’s appeal.
In relation to Lord Hope’s first amendment, the Conservative Earl Howe proposed a compromise, defining freedom of speech as referring to Article 10(1) “as it has effect for the purposes of the Human Rights Act 1998”. Lord Hope ultimately accepted that formulation, noting that the phrase “as it has effect” implicitly imports the whole balancing test from the HRA. As far as the second amendment was concerned, Baroness Barran, the parliamentary under-secretary for education, stressed that:
This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others.
Given her assurance that the Bill “does not change how Article 10(2) applies”, Lord Hope withdrew his second amendment. However, it’s worth noting that Article 10 is mentioned only twice in the Act – at A1(13) – and not at all in the Explanatory Notes.
Lieven J summed up the differences in the positions taken by the OfS and Sussex as boiling down to a disagreement over whether the OfS applied a proportionality assessment when finding a breach of condition E1 in relation to the Policy Statement, with the university arguing that the OfS failed to ask the essential question of whether the restrictions on freedom of speech within the Policy Statement were justified within the law (211-12).
A three-step process
The OfS does take into account Article 10(2) in the most recent iteration of its Regulatory Advice 24: Guidance Related to Freedom of Speech, although it should be noted that this was not in effect when it made its Final Decision. The current version of Advice 24 sets out a three-step process for assessing compliance with universities’ duties to secure freedom of speech within the law, and Article 10 is engaged by the third step. Whatever the problems of this process it is at least preferable to that of the Free Speech Union (FSU) which acted as an ‘intervener’ in the Sussex appeal and rejected the proposition that the term “freedom of speech within the law” incorporates a proportionality analysis as provided for in Article 10(2).
In the current OfS scheme of things, the first step is to pose the question: is the speech within the law? Law here means primary legislation, legal precedent or court decisions, and secondary legislation or bylaws. If the answer is negative, the duty to secure the speech does not apply. If positive, the second step is activated. Here the question is posed: are there any “reasonably practicable steps” to secure the speech? Factors to consider will include legal/regulatory requirements (for example, duties in relation to harassment), maintaining essential functions of the university (for example, learning, teaching, research and administration) and physical safety. If the answer is “yes”, those steps should be taken and the speech should not be restricted. If it is “no”, the education provider must proceed to the third step – one that the FSU obviously deems unnecessary. This requires it to ask whether any restrictions are prescribed by law and proportionate under the ECHR. To quote from the regulatory advice:
The proportionality test is formulated such that there is a high bar to interfere with any qualified Convention rights, including Article 10 on freedom of expression. In practice this means it is difficult to restrict lawful speech. This is particularly so in a higher education context, where providers are subject to statutory duties to secure the rights protected under Article 10, and where the core mission of universities and colleges is the pursuit of knowledge (and the principles of free speech and academic freedom are fundamental to this purpose).
The significance of this in the present context, as Lieven J explained is, that if an item of speech
interfered with a person’s other rights under the ECHR, most obviously Article 8, then an HE provider would have to consider proportionality in order to meet its duty under s.6 of the HRA, otherwise it would potentially be acting unlawfully. The HRA is domestic law, and the duty to comply with s.6 HRA applies to the University, as it would to any other public authority. (221)
Erring in law
In her judgment, Lieven J pointed out that the clauses in the Policy Statement relating to disciplinary measures, transphobic propaganda and stereotyping are all subject to the concluding Safeguarding Statement quoted above. This, she noted, “complies with the three-step approach, which the OfS itself advocates and supports, because it expressly requires the University to take reasonably practicable steps to secure free speech and provide proportionate justification for any restrictions on free speech” (240). What is evident in her judgement is her lack of sympathy with what the University referred to as the OfS’s “absolutist” approach to freedom of speech – that is, its insistence that if there is any interference (or any potential for interference) with lawful speech then the Policy Statement breaches condition E1, and so any speech within the law should be defended. But as Lieven J concluded: “The OfS erred in law in the Final Decision by misdirecting itself as to ‘freedom of speech within the law’, and relying on the restriction of ‘lawful speech’ as being sufficient to find a breach of condition E1” (448). Lawful speech she defined as “speech that was not contrary to criminal or civil law restrictions (save for the HRA)” (203).
Here, in fact, she was echoing Professor Roseneil, who, announcing Sussex’s decision to seek judicial review of the OfS decision, argued that the manner in which the OfS conducted its investigation and the conclusions which it reached demonstrate that it is “effectively decreeing libertarian free speech absolutism as the fundamental principle for UK universities” and “perpetuating the culture wars”. This was a point to which she returned at greater length following the successful application for judicial review, pointing out that:
The OfS fundamentally misunderstood the law relating to freedom of speech. It had incorrectly assumed that universities cannot have any policies that limit lawful speech – even if they seek to protect the learning and working environment, and to make possible full participation and inclusion. This absolutist interpretation of freedom of speech was found to be wrong in law: the High Court has confirmed that universities are entitled to restrict speech where it is proportionate to do so. The judgement affirms that universities can protect students and staff from bullying, abuse, and harassment, whilst also upholding and promoting free speech. This is a hugely important judgment, particularly for members of minority groups studying and working in our universities.
Julian Petley is the Honorary and Emeritus Professor of Journalism, Brunel University London
I would like to thank Jim Dickinson of the invaluable HE website Wonkhe for his extremely helpful comments on the drafts of the first two parts of this series of articles.