The most significant of the five interrelated freedom grounds, in respect of which the intervener made submissions, concerned the meaning of the statutory phrase “freedom of speech within the law” (“LFoS”), which appears in both section A1 of the Higher Education and Research Act 2017 and its predecessor legislation section 43 Education (No 2) Act 1986, and how this relates to the proportionality balancing exercise required by Article 10 of the European Convention on Human Rights (per section 6 Human Rights Act 1998) (“the Convention”).
The parties’ positions on this issue are recorded as shifting through the course of the proceedings. However, the University and the OfS agreed that the three step process in the OfS regulatory guidance on free speech was appropriate, namely:
- Is the speech “within the law”?
- Are there any reasonably practicable steps (“RPS”) to secure the speech? If yes, take the steps and do not restrict the speech.
- Are any restrictions prescribed by law and proportionate under the Convention?
In written argument, the OfS suggested that the proportionality exercise under Article 10(2) of the Convention should not be undertaken, but conceded orally that it was indeed necessary to balance relevant considerations under the RPS test. Mrs Justice Lieven concludes, therefore, that the RPS test encompasses the same issues as a proportionality exercise: steps 2 and 3 “largely if not wholly elided”. Indeed, she endorses the approach of the High Court in R(Ben Dor) v University of Southampton where the proportionality assessment of considering whether there are “less intrusive means” is taken to be the same as applying the RPS test.
The judge also rejected the contention of the intervener that Article 10(2) should be ousted from the assessment such that LFoS encompassed all speech not specifically prohibited by domestic law or Article 17 of the Convention. This was for two reasons: (i) other rights, such as under Article 8 of the Convention, may be in play and need to be secured by a university as a public authority; and (ii) as noted, the RPS test is elided in practice with the Convention proportionality assessment. So closely aligned are the RPS and proportionality tests that the argument advanced before the court that there is no scope for proportionality under the statutory duty adds nothing.
The judgment has therefore clearly resolved a key point of interpretation over the meaning of LFoS. The High Court accepted that this incorporates an assessment of the proportionality of any restriction under Article 10(2) of the Convention, rejecting the proposition that this Convention restriction mechanism was excluded. This gives important clarity for providers who will now be able to apply Convention principles with confidence when complying with their duties to secure free speech on campus, and balance free speech more easily with the rights of others under the Convention.
While Sussex and the OfS agreed that the OfS’ regulatory free speech guidance set out the correct analytical approach, in my view it was previously not clear in the guidance precisely how other Convention rights were to be balanced with free speech, and the suggestion by the court that steps 2 and 3 of the regulatory guidance might be functionally elided makes this analysis easier for institutions and makes it clear that lawful speech might be restricted provided this is done in line with Convention principles. With the announcement of the introduction of the statutory free speech complaints scheme this will be welcome clarification for institutions.
The general point concerns the statutory definition of academic freedom and can be briefly explained. The court was clear that the purpose of the definition was to protect an academic from the jeopardy of losing their job. This does not include jeopardy of disciplinary proceedings or other detrimental effects, such as psychological impacts, nor does it include a chilling effect “however harmful that might be to freedom of speech, or indeed academic freedom”.
To take the definition so narrowly strikes me as curious when one considers the wider Strasbourg jurisprudence on academic free expression. We know from the Ayuso Torres v Spain case that such expression is exceptionally sensitive to any sort of chilling effect. If the OfS had made reference to that case law in argument, it could have sought to persuade the court that – per its own obligations of the Human Rights Act 1998 – it should have interpreted the statutory definition of academic freedom broadly, and not been so dismissive of the concept of a chilling effect.
I don’t find it surprising that the OfS didn’t advance these arguments – there is no reference to academic free expression in its regulatory guidance, and this is a real lacuna in my view. The OfS has clearly been very hesitant about embracing Convention proportionality in its approach, and it has not (until it was forced to do so in this litigation, and by the correspondence from Universities UK and others which forced an Article 8 concession) embraced Article 10(2) (or other Convention articles) as having a place in its assessment. The court has now disabused it entirely of its incorrect reading of what is trite human rights law. It is now time for the OfS to properly considering the Strasbourg concept of academic free expression and integrate it fully into its analysis. This is a concept which I am currently exploring in my doctoral thesis and in my forthcoming book with Cambridge University Press.