Helga Law Journal - 01.01.2021, Page 185

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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of speech and take reasonably practicable steps (including the “initiation of
disciplinary measures”) to ensure compliance with the code.’369
In addition to these duties, there are applicable human rights relevant to
promoting freedom of speech and the right to protest within and outside
university campuses. Article 10 and Article 11 of the European Convention on
Human Rights (‘ECHR’) sets out the right to freedom of expression and the right
to freedom of assembly and association. The ECHR is incorporated into
domestic law via the Human Rights Act 1998 (‘HRA 1998’) and section 6 of the
HRA 1998 prohibits public authorities from acting in a way ‘which is
incompatible with a Convention right.’370 It can therefore be argued that, where
a university ‘is performing functions of a public nature,’371 then it must adhere to
the rights and freedoms contained within the ECHR. Furthermore, it is
important to stress that the right to free speech ‘is not absolute and can be limited
by law’372 although ‘any such limitations must be proportionate.’373
Alongside the obligation ‘to secure free speech within the law,’374 institutions
are ‘subject to a range of other sometimes competing duties.’375 Evidence
supports this notion as the Equality Act 2010 (‘EA 2010’) ‘prohibits unlawful
discrimination’376 in relation to specific ‘protected characteristics.’377 The
protected characteristics are: age, disability, gender reassignment, pregnancy and
maternity, race, religion or belief, sex and sexual orientation.378 Moreover, section
149 of the EA 2010 establishes a public-sector equality duty (‘PSED’) on
institutions ‘undertaking public functions, which harmonises the equality duties
across the protected characteristics.’379 Further, the PSED obligates universities
to ‘have due regard to the need to - (a) “eliminate discrimination, harassment,
victimisation;” (b) “advance equality of opportunity;” and (c) “foster good
relations between persons who share a relevant protected characteristic and
persons who do not share it.”’380 Consequently, it can be argued that equality law
can impede freedom of speech ‘by making certain speech and conduct
unlawful.’381 Therefore, institutions must ‘balance their obligation to secure free
speech with the duty to promote good relations between different groups with
protected characteristics.’382

369 ibid.
370 Human Rights Act 1998, s 6.
371 (n 3).
372 (n 2).
373 ibid.
374 (n 21).
375 (n 3).
376 Equality Act 2010, pt 2, ch 1.
377 ibid.
378 ibid.
379 (n 2).
380 (n 32) s 149.
381 (n 3).
382 ibid.
Moreover, under section 26(1) of the Counter-Terrorism and Security Act
2015, higher education bodies are obliged to ‘have due regard to the need to
prevent people from being drawn into terrorism’383 when exercising their
functions - otherwise known as the Prevent duty. However, the provision also
requires those bodies to have ‘particular regard’384 to the obligation to secure free
speech. Consequently, institutions must ensure they ‘balance their legal duties to
ensure free speech with their duty to protect students from being drawn into
terrorism.’385
8.3 Scale of the Problem
It is significant to note that the Government ‘has repeatedly expressed concerns
about the impact of student led activities such as “no platforming” and “safe
space” policies’386 on freedom of speech and the right to protest in universities.
For instance, the Minister of State for Universities, Science, Research and
Innovation, Sam Gyimah MP, has recently called on higher education institutions
to ‘join forces with the government to eradicate the “institutional hostility” to
unfashionable views that have emerged in some student societies.’387
Moreover, recent press accounts have ‘given prominence to claims that “no
platforming” and “safe space” policies’388 are limiting freedom of speech and the
right to protest at universities. Evidence supports this as outlets have reported
concerns that ‘more than nine in 10 UK universities are restrictive of free
speech,’389 reinforcing the perception that the ‘current generation of students are
unwilling to hear views which are different to their own.’390
However, complaints that ‘students have created a free speech crisis’391 on
university campuses have been ‘exaggerated’392 according to a report by the
JCHR. The report concluded that despite ‘real free speech issues,’393 media
accounts of ‘wholesale censorship of debate in universities’394 are evidently ‘out
of kilter with reality.’395 Despite this, the report also highlighted the existence of
‘real problems which act as disincentives for students to put on challenging

383 Counter-Terrorism and Security Act 2015, s 26(1).
384 ibid.
385 (n 3).
386 ibid.
387 Sam Gyimah Hosts Free Speech Summit' (GOV.UK, 2018)
<https://www.gov.uk/government/news/sam-gyimah-hosts-free-speech-summit> accessed 1 June
2018.
388 (n 3).
389 Rachael Pells, 'These Are The Least Free Universities In Britain, Apparently' (The Independent, 2018)
<https://www.independent.co.uk/student/news/nine-10-uk-universities-free-speech-restrict-
rankings-joseph-rowntree-cardiff-ediburgh-newcastle-a7577381.html> accessed 1 June 2018.
390 (n 3).
391 ibid.
392 (n 3).
393 ibid.
394 ibid.
395 ibid.