After the victory for Academic Freedom at Essex, Universities must get their legal houses in order.
Universities have used the EQA to push an ideological agenda and degrade liberal values. Time to change.
The Free Speech Union has just won a major victory against Essex University. This was originally set in train last November when two gender critical feminists, Professors Phoenix and Freedman were no-platformed at Essex.
The FSU challenged the harassment policy’s treatment of students as liable for harassment under the Equality Act 2010, which it argued would unlawfully restrict their free speech. Bryn Harris, the FSU’s chief legal counsel, said he hoped other universities would adopt Essex’s “sensible and encouraging approach”. Dr Harris continued that Universities have a “legitimate interest in prohibiting malicious or destructive behaviour” but they must “consider carefully their legal obligation to secure lawful free speech. The Equality Act does not apply in every situation, and does not provide a carte blanche”. See the FSU’s excellent briefing on the new The Higher Education (Freedom of Speech) Bill making its way through parliament.
Dr Harris continued that “Universities need to start getting this right, or they face the likelihood of challenge by the likes of us and, in the future, regulatory intervention and even liability in damages once the [free speech] bill becomes law.”
Academic freedom
Academic Freedom and FoS are the bedrock of a liberal society. As is clear above, British Universities have increasingly sought to balance their duties under the EQA / PSED with AF/FoS. This balance has generated tension often managed through a form of therapeutic paternalism. In overt discrimination, incitement to violence or actual violence, the law is clear, and Universities are right to act robustly. However, case law and the EHRC best-practice place primacy on AF/FoS over and above more ‘grey’ forms of therapeutic paternalism.
This tension has become a key vector in the ‘chilling effect’ and broader campus issues concerning AF/ FoS.
In its excellent report, the EHRC is explicit about the importance of AF over and above other considerations such as causing somebody offence or hurting their feelings / challenging their ideas. Overall, the interaction between section 26 and the law protecting free speech on campus and academic freedom is complex, but there is clear guidance from the courts/tribunals and the ECHR that the unique environment of the academy and the unique legal framework which protects the expression of its denizens means there is a high bar to making out a successful claim of harassment contrary to section 26 EQA where the effect of the impugned conduct is in question.
Under the new AF regime, and to the extent Universities continues to try and police this ‘grey zone’, they will become more vulnerable to legal/financial/reputational sanctions.
EHRC best practice
First, the balance between the ‘grey zone’ therapeutic paternalism vs AF/FoS does not exist under existing law. EHRC guidance states:
There is not a balance but a triangle with AF/FoS at its apex. In very extreme circumstances, secondary considerations about offence or therapeutic protections apply.
The Reindorf Report
The ‘grey zone’ balancing act also does not consider recent developments, such as the Reindorf report commissioned when Profs Phoenix and Freedman were originally cancelled at Essex. The report concludes that the University breached the Professors’ rights to freedom of expression because of preconceptions about their views on trans rights and gender identity. The University was in breach of its statutory duty to take reasonably practicable steps to ensure that freedom of speech within the law is secured for visiting speakers (s.43 of the Education Act (No. 2) 1986 s.43(1)), its Freedom of Speech and Academic Freedom policy, its regulatory obligations, its duties under charity law and potentially the Public Sector Equality Duty.
The Barrister commissioned to write the report makes a series of legal points. “The Article 10.1 right to freedom of expression is fundamental, but it is not absolute. Speech which seeks to abuse the rights and freedoms in the Convention is excluded from the scope of Article 10.1 altogether by Article 17. This Article prohibits the gravest form of hate speech, such as Holocaust denial. The article is only applicable on an exceptional basis and in extreme cases where it is immediately clear that there is an intention to achieve ends which are clearly contrary to the values of the Convention, such as stirring up hatred or violence. It does not cover, for instance, vulgar homophobic slurs.”
As such, the balance between therapeutic paternalism and AF/FoS places Universities in possibly legally dubious territory: “The Article is only applicable on an exceptional basis and in extreme cases where it is immediately clear that there is an intention to achieve ends which are clearly contrary to the values of the Convention, such as stirring up hatred or violence.”
Once the new AF legislation is out, Universities should swiftly revisit their own protocols. My recommendation would be to take sound advice from academic freedom and equality law specialists to redraft and ensure compliance. I would not overly rely on legal teams within existing university human resources, who to date seem to be getting the law badly wrong.
Given the legislation seeks to ensure HEPs are actively promoting AF/FoS, an OfS compliance regime will back this up and will likely seek long overdue scalps. Universities should also formalize positions, to ensure faculties/departments are compliant. The clock is ticking.