Joshua Rozenberg: Are universities meeting their legal duty to ensure free speech for students?
Some institutions are acting within the law, but others may not be
“Freedom of expression and freedom of assembly are alive and well at Southampton University,” Mrs Justice Whipple proclaimed on 27 April.
And yet — as Legal Cheek reported last month — the High Court judge had just made it virtually impossible for two of the university’s academics to go ahead with a conference they wanted to hold there. Where does this leave free speech?
In their call for papers, professors Oren Ben-Dor and Suleiman Sharkh said their conference sought to “analyse the challenge posed to international law by the Jewish State of Israel and the whole of historic Palestine — the area to the west side of River Jordan that includes what is now the State of Israel and the Palestinian territories occupied in 1967”.
Since their starting point appeared to be that Israel had no right to exist as a Jewish state, the two professors won’t have been surprised to hear that Southampton received a number of objections to their planned conference. The university’s head of safety conducted a risk assessment and concluded that protests and counter-protests at the conference might involve between 400 and 1,000 demonstrators. To safeguard staff and students, it withdrew permission for the conference to take place on university premises.
That was last year. This year, the university offered to hold the conference in a fenced-off building on the edge of the campus, so long as the organisers paid security and support fees of nearly £24,000 from the £55,000 they expected to receive in funding.
Professors Ben-Dor and Sharkh claimed the university had breached their right to freedom of expression under article 10 of the human rights convention and to freedom of assembly under article 11. On their crowdfunding page, they argued that the event should have been policed at public expense. Otherwise, they said, “controversial debates could be silenced by anyone… simply threatening to hold a demonstration”.
The professors brought two claims for judicial review against their employers. First, they challenged the withdrawal of permission for the conference to be held in 2015. Subsequently, they challenged the decision that they should pay for security if the conference had gone ahead this year.
Mrs Justice Andrews refused them permission to bring the first claim. Their renewed application was refused by Judge Alice Robinson but, on appeal, permission was granted by Lady Justice Arden. Even so, Mrs Justice Whipple dismissed the academics’ first claim and refused them permission to bring their second claim. It’s entirely coincidental that all the judges who dealt with this case were women.
Dealing with the first claim, Mrs Justice Whipple said the university’s decision was a proportionate interference with the claimants’ rights. The university had not behaved unreasonably and there was no procedural irregularity.
The risks of holding the conference were very substantial,” she explained. “Any responsible organisation would have wished to develop a coherent plan to ensure a safe event and would have refused permission to hold the event until that plan was to hand.
Turning to the second claim, the judge found no problem with the conference organisers having to pay their own security costs.
I can see no reason why this would amount to any form of interference with the right of free speech,” she added. “The decisions in each case were motivated by well-founded concerns for the safety of people and property, and exemplify good and responsible decision-making by the [university].
What this judgment confirms is that freedom of expression and freedom of assembly are not absolute rights. They are, of course, subject to the restrictions set out in the second paragraphs of articles 10 and 11. No surprise there.
But wasn’t this, in reality, an attempt to silence a particular point of view? Not as far as the university was concerned: it had been willing to allow the conference to go ahead so long as disruption was kept to a minimum. And there was nothing to stop the organisers from holding their conference outside the university’s premises.
If it does go ahead, they will need to ensure that their speakers keep within the law. In response to the issues raised, perhaps someone in the audience might argue that Israel’s Jewish inhabitants should be forcibly deported — possibly to a country like the United States. Would that be lawful?
Under the Public Order Act 1986, a person who uses threatening words is guilty of an offence if the speaker intends those words to stir up religious hatred. It’s also an offence to show a threatening video with the same intention. Religious hatred means hatred against a group of persons defined by reference to religious belief or lack of religious belief.
However, conduct that merely stirs up ridicule or dislike, or which simply causes offence, is not covered by this law. Hatred is a much stronger emotion than ridicule.
What if the speaker did not intend to stir up hated against anyone? It’s also an offence to use threatening, abusive or insulting words if those words are merely likely to stir up racial hatred. Jews are likely to be regarded as a race for these purposes.
An unusual feature of universities and colleges of higher or further education is that they are under a duty to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.
The Education (No 2) Act 1986 goes on to say that the use of the university’s premises — including student union premises — must not be denied to people on the grounds of their beliefs or objectives. Every university must have a code of practice for meetings, backed up by disciplinary measures.
Southampton University was able to show that it had complied with this obligation. But some universities may not be doing enough to protect free speech on their premises.
Writing last week about her inquiry into allegations of anti-Semitism at Oxford University Labour Club (OULC), Baroness Royall said there was a “cultural problem which means that Jewish students do not always feel welcome”. The Labour peer continued:
Many students reported that should a Jewish student preface a remark ‘as a Jew…’ they are likely to face ridicule and behaviour that would not be acceptable for someone saying ‘as a woman…’ or ‘as an Afro-Caribbean…’. This should not be tolerated.
In one of her recommendations, Royall said that OULC and other Labour clubs should “take action to ensure that all those who wish to participate in meetings feel that there is a safe space in order to discuss and debate without discrimination”.
Although the full text of her report was not published by the Labour party, we may infer that she found this “safe space” missing from meetings that were presumably held in Oxford colleges. Might that leave those colleges in breach of their duties under the Education (No 2) Act 1986? If it’s not safe for people with particular views to attend certain meetings, then maybe colleges should make sure that those meetings don’t take place on their premises.
Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the third in a series of articles that he will be writing for Legal Cheek about law-related topics in the news.
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