Freedom of expression in higher education

The Equality and Human Rights Commission (EHRC) published new guidance today (2 February 2019) on freedom of expression in higher education in England and Wales.

This helpful guidance document, aimed at higher education institutions and students' unions, builds upon the work of the Parliamentary Joint Committee on Human Rights (JCHR) which published its report on freedom of speech in universities on 21 March 2018, having taken evidence from a wide range of interested parties: student groups, Vice Chancellors, high profile public speakers, regulatory bodies and members of the legal profession.

The EHRC guidance reminds us at the outset what it is all about: "The right to express views and ideas freely, without fear of interference or persecution, is an essential part of democracy."

Freedom of expression is rooted in Article 10 of the European Convention on Human Rights and sits alongside the right to freedom of thought, conscience and religion (Article 9), the right to freedom of peaceful assembly and association with others (Article 11) and the right to freedom from discrimination (Article 14).

Higher education institutions in England and Wales have had an express statutory duty since 1986 to take such steps as are reasonably practicable to secure freedom of speech within the law.

Freedom of speech / expression is not an unqualified right and restrictions may be made to an individual's right where that is necessary in a democratic society, for example where the speech is intended or likely to stir up hatred on the grounds of race, religion or sexual orientation. The restrictions on freedom of speech, however, must be narrowly construed.

Difficult questions have arisen in the context of the statutory Prevent duty under the Counter-Terrorism and Security Act 2015 but the High Court, the JCHR report and the EHRC guidance have affirmed the key point that the Prevent duty is only relevant if there is a risk of people being drawn into terrorism. Due regard must be given to the statutory Prevent duty guidance and particular regard should be given by higher education institutions to their statutory duty to secure freedom of speech for their students, staff, members and visiting speakers.

The EHRC guidance will not take away the challenges where views are expressed which may be controversial or offensive, or where opposing and dissenting opinions are voiced on any given issue. On the contrary, the articulation of different perspectives should be encouraged. Ideally, in discussions and debates on difficult issues, views, statements, opinions and other forms of expression would be given respectfully, but certainly such engagements should be within the law. 

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