More on free speech

Further to Nick Abbott's blog on the European Court of Human Right's decision in Redfearn v United Kingdom, we note with interest a recent matter involving the Leeds Student (a student paper published by the Leeds University Union) and the NUS. The Leeds Student published an interview that it had conducted with Nick Griffin (the leader of the British National Party). The NUS immediately published a letter demanding the student paper to remove the interview from its website, in accordance with the NUS policy to give no platform to individuals who hold fascist and racist views. The Leeds Student defended its decision to publish the interview on the basis of free speech and argued that allowing Mr Griffin to air his views and policies exposed them for what they are.

This illustrates the tension between the right to freedom of expression in a democratic society and the wish not to allow those with offensive views the oxygen of publicity.

The Redfearn decision reminds us that the right of freedom of expression (to which freedom of association is closely aligned) applies equally to views which offend, shock or disturb as well as views which are favourably received. While the European Convention on Human Rights (ECHR) was brought into direct effect in the UK as a result of the Human Rights Act 1998, higher education institutions have been subject to a right to freedom of expression for longer. Section 43 of the Education (No.2) Act 1986 obliges “universities and polytechnics” to take such steps as are reasonably practicable to secure freedom of speech within the law for their students, staff and visiting speakers. The Act expressly prohibits institutions from denying the use of their premises to any individual or body of persons on any ground connected to the individual's or body's beliefs or views.

This freedom of expression is not, of course, without limit. The 1986 Act granted the freedom to the extent that speech is "within the law" while the ECHR permits limits on the right of freedom of expression which are prescribed by law and “necessary in a democratic society”. This means that it is lawful to place conditions on a speaker’s attendance - as illustrated in the 1991 case of R v University of Liverpool ex p Caesar-Gordon when restrictions on the extent to the event could be advertised and holding it as a ticket only event were found to be lawful.

In light of the possible renewed focus on freedom of speech, the careful judgments needed to strike a fair balance between competing rights and freedoms and the expected move towards political thought being a ground for discrimination, it may be worth universities examining afresh the code of practice on free speech which the 1986 Act still requires them to have.