May No-platforms the No-platformers

How do universities balance freedom of expression and intellectual advancement whilst maintaining safe spaces for staff, students and the university community? In light of Theresa May’s recent criticism of safe spaces, Geraldine Swanton, Legal Director at Shakespeare Martineau, considers the legal implications for universities in providing those safe spaces and maintaining freedom of expression.

The press reported recently that Theresa May made clear, in PMQs, her opposition to the concept of “safe spaces”. She is also reported as going so far as to suggest that safe spaces were harmful, proclaiming:

We want our universities not just to be places of learning but places where there is open debate, which is challenged and people can get involved in that. I think everybody is finding this concept of safe spaces quite extraordinary, frankly. We want to see that innovation of thought taking place in our universities. That’s how we develop as a country, as a society, and as an economy…”

Safe spaces are not a matter for debate, paradoxically. The law is quite clear. Universities have a legal duty to ensure that freedom of speech within the law is secured for their members, students and employees, and for visiting speakers.

Further, universities have a legal duty to act in a manner compatible with the rights guaranteed by the European Convention on Human Rights, which includes taking positive steps to secure those rights for students and relevant others. The objective is to guarantee rights that are practical and effective and not merely theoretical or illusory.

Of particular relevance in a democratic society 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 university). Article 10 does not only apply to ideas and opinions that are favourably received, but also to those that offend, shock and disturb. They are the demands of pluralism and tolerance, without which there would be no democracy or, it is arguable, any advance in human understanding and wisdom. That is tacitly acknowledged in the right of university staff in the course of their academic activities to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, provided that they are acting within the law.

The pressure to ban or cancel speakers has been felt on many campuses, with various student groups stridently asserting that speakers’ publicly proclaimed views are offensive to them. Such offence, it is claimed, would amount to unlawful harassment on one or more of the protected grounds (e.g. gender reassignment, sex, religion or belief) if those views were permitted to be aired on campus. As academic freedom and freedom of speech are rights which can only be validly exercised if the speaker is acting within the law, the articulation of views that amounted to harassment would remove the protection afforded to the speaker.

“Harassment” under the Equality Act 2010 has been carefully drafted, however, to limit the scope of its application. Harassment is defined as unwanted conduct relating a person’s protected characteristic (e.g. age, disability, gender reassignment etc.) that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the alleged victim.

In deciding whether unlawful harassment has occurred, a court will take into account factors including the subjective perception of the individual, the particular circumstances and whether it was reasonable for the conduct to have the stated effect. The latter objective test imposes reasonable limits on the extent of the protection afforded and its purpose is to ensure that the words “intimidating”, hostile, “degrading” and “dehumanising” are not trivialised or diminished in significance. Regard must therefore be paid to the context in which the alleged harassment has occurred and hence to the interests that are wider than those of the immediate parties. In this case, those wider interests include the rights of the academic community to impart and to receive information and ideas and to challenge received wisdom.

Targeting particular individuals or cohorts with particular protected characteristics and inciting violence or hatred of them, however, cannot be justified and will not be protected by the limits placed on harassment under the Equality Act. There is no indication, however, that exhortations for safe spaces or no-platforms are a response to such behaviour.

We live in an increasingly pluralistic society and universities are a microcosm of that pluralism. Genuine pluralism requires to us to tolerate the dissemination of information and views which we believe to be wrong, misguided provocative. It is by engaging with such views and challenging them where appropriate that we advance the course of wisdom. John Milton, in his poem Areopagitica, expressed this sentiment much more lyrically:

Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is trial, and trial is by what is contrary”.