Freedom of expression in the world of higher education

Posted Mar 4, 2019

The recent EHRC guide aims to clarify the law to reduce conflict where people find their views are clashing.

“They may take away our lives, but they’ll never take our freedom!”

Stirring stuff from Mel Gibson starring as William Wallace in the 90s film, ‘Braveheart’.

In its recent publication “Freedom of expression: a guide for high education providers and students’ unions in England and Wales” (February 2019), the Equality and Human Rights Commission (EHRC) proclaim: “the right to express views and ideas freely, without fear of interference or persecution, is an essential part of democracy. Respectful debate and conversation helps us challenge discrimination, get rid of intolerance and harmful attitudes, and build strong, positive communities”.

From that bold starting point the EHRC guidance explains that a 2017 inquiry by the Joint Committee on Human Rights found that all was not well when it came to the state of free speech in UK universities.  Increased bureaucracy, intolerant attitudes, violent protest and potential self-censorship from students on campus has created obstacles to free speech.

Brent Haywood, Partner in our Dispute Resolution and Litigation team considers that the guide is a welcome addition to the material provided by the EHCR to explain, and bring some clarity to, grey areas in some existing laws and guidance.  It highlights that higher education providers need to have a code that sets out their policies and procedures relating to external speakers, whilst ensuring that unnecessary barriers to free speech are not created.  It is to be hoped that such guidance will help give greater clarity on the law of freedom of expression and, in turn, lower the temperature in situations of conflict where people or groups find that their respective ‘freedoms’ are clashing.

It takes time to improve understanding, and this subject matter frequently stirs the emotions on all sides – remember Braveheart.  We are aware of groups within Scottish Universities who are being refused affiliation by their Student Unions in circumstances that appear to ignore individuals’ ‘protected characteristics’ under the Equalities Act 2010. Freedom is being taken!

Our dispute resolution and litigation experts offer assistance in this area and can provide guidance on strategy and the means by which legal challenges under the Human Rights Act 1998 and the Equality Act 2010 might be funded or supported.