The challenges of managing conflicting freedoms

The cancellation by the University of Southampton of the conference on “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism” and the subsequent unsuccessful challenge to that decision on Tuesday have been widely reported. No one could have read those reports without experiencing a profound sympathy for the senior managers seeking to balance the multiplicity of interests and principles striving for supremacy in the decision-making process. It was an interesting coincidence that while the High Court was considering the challenge by way of judicial review, we were delivering a session at the AHUA Spring Conference in Stirling University on The Challenges of Managing Competing Freedoms on Campus, of which the Southampton dilemma was an example par excellence.

This blog provides a reminder of the areas of law that impinge on such matters and the attendant complexity of the decisions that have to be made in many cases.

Of primary significance in this case was the statutory obligation of institutions to take reasonably practicable steps to ensure that freedom of speech within the law is secured for members, staff, students and visiting speakers. It includes a duty to ensure that, again, so far as reasonably practicable, the use of premises is not denied to any person/body on the basis of the views of that person/body or on the basis of the policy/objectives of that body. It is not an absolute duty and institutions are required to issue a code of practice setting out the procedures for use of rooms for such purposes and a related code of conduct. Failure to comply with the code can entitle an institution to refuse permission for the event to proceed. A factor for consideration in granting permission will be any real risk to safety on campus which cannot reasonably be managed in the particular circumstances.

Depending on the category of institution, academic staff have a statutory or constitutional right of academic freedom i.e. within the law to question and test received wisdom, and to put forward new ideas and controversial and unpopular opinions, without placing themselves in jeopardy of losing their jobs and privileges.

The limit placed on the exercise of these rights is that it must be within the law; in other words any expression of academic freedom or freedom of speech that amounts to, for example, incitement to racial or religious hatred, will not be a valid exercise of that right.

Further, institutions have a legal duty to act in a manner compatible with the rights guaranteed by the European Convention on Human Rights (ECHR), which includes taking positive steps to secure those rights for students and staff. The objective is to guarantee rights that are practical and effective and not merely theoretical or illusory. Of most relevance in the current context is the right to freedom of expression (Article 10), which includes the freedom to hold opinions and to receive and impart information and ideas, without unjustified interference by the state (i.e. the institution). Article 10 does not only apply to ideas and opinions that are favourably received, but also to those that offend, shock and disturb. It has been argued that the freedom to express only opinions that are inoffensive is no freedom at all. The right is also viewed as a prerequisite of a democratic society and should be interfered with only as a last resort where there are clear, justifiable reasons for doing so that comply with the exhaustive grounds prescribed by the ECHR. Also relevant is the right to freedom of thought, conscience and religion, which is absolute, while the right to manifest religion or belief is qualified and can be interfered with, again subject to the prescribed limitations of the ECHR. No one therefore has the right to manifest religion or belief at all times in all places.

The Equality Act can also act as a limitation to the above freedoms. For example, staff and students are protected from harassment relating to their race, religion or other protected characteristic. Harassment is unwanted conduct (widely interpreted) which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The use of the term “offensive” is problematic and resides uncomfortably with the right to freedom of expression under the ECHR. All law must, however, be interpreted in a manner compatible with the ECHR and the Equality Act itself provides some safeguards to protect against a culture of hypersensitivity and unreasonable censorship. In order to amount unlawful harassment under the Equality Act, the subjective perception of the individual is taken into account, but a court will also consider the context in which the unwanted conduct occurred, as well as whether it was reasonable for that conduct to have the effect claimed by the complainant e.g. creating an offensive environment. For example, would a court conclude that debating the right of the state of Israel to exist in the context of a lecture on Middle Eastern politics amounted harassment relating to race or religion given that some Jewish students found the subject profoundly offensive?

The duty to have due regard to the need to prevent people from being drawn into terrorism, which is not yet in force for institutions, has generated the greatest discomfort of all when juxtaposed with the freedoms which are at the heart of the academic and educational endeavour. Though the duty is expressly qualified by the related duties in respect of academic freedom and freedom of speech, institutions are challenged to understand how the “prevent” duty can be implemented in practice without interfering to some extent with those important freedoms.

Managing competing freedoms is an even greater challenge in a world of mass media. The mottos of our great institutions remind us, however, that the pursuit of knowledge and understanding without unreasonable hindrance is ultimately what civilises us. So when the challenge gets tough, remember ……. nisi sapientia frustra (without knowledge everything is in vain; indagate fingite invenite (explore, dream, discover); rerum cognoscere causas (discover the causes of things). (There is a prize for the first person who correctly guesses the institutions whose mottos these are!)

Geraldine Swanton
Legal Director
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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