Naomi Cunningham and Michael Foran
Speaking at a fringe meeting at the TUC this week, Jo Grady, the general secretary of the University and College Union (UCU) said (as reported in the Telegraph):
“whilst it’s clear that gender-critical beliefs are protected, the form of expression isn’t … You might have freedom of speech, but you don’t have freedom to offend … that’s one of the things that we try and educate our members about quite a lot.”
This betrays a misunderstanding of the law. The right to freedom of belief under article 9 of the ECHR explicitly protects the manifesting as well as holding of beliefs; and the right to freedom of expression includes the right to say things that are offensive, shocking, or heretical to current orthodoxies. Academics in particular are granted heightened protection in their expression, precisely because academic freedom necessitates the freedom to pursue truth, even when social and institutional pressure seeks to silence it.
The legal framework
Article 9 ECHR provides:
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 ECHR provides:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The European Court of Human Rights has been explicit that the protection of these rights is foundational to democracy. For example, in Sahin v Turkey (2007) 44 EHRR 5, [104], the Court concluded that
“freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.”
A similar commitment can be found within domestic law. For example, in R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ noted that
“A freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
This position was neatly summarised by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.”
The importance of political speech — the ability to discuss public policy, law, governance, and rights — has been particularly emphasised as necessary for democracy. In R (Prolife Alliance) v BBC [2004] 1AC 185, Lord Nicholls stressed that
“Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts”
Similarly, the European court of Human Rights in Vajnai v Hungary [2008] ECHR 1910, has noted that there is “little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest.”
There is a wide latitude as to the manner in which such views are expressed. In De Haes and Gijsels v Belgium [1997] 25 EHRR 1, the Court observes that
“Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community… it must be remembered that Article 10 … protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”
As Jo Grady notes, Forsater v CGD Europe [2019] UKEAT 0105_20_1006 establishes that gender critical views are protected as philosophical beliefs for the purposes of the Equality Act. They engage both Article 9 and Article 10 ECHR and are considered to be worthy of respect within a democratic society. Because they engage these rights, their expression or manifestation is also protected, and this is so even where such expression is offensive. In R (Miller) v College of Policing [2020] EWHC 225 (Admin), Knowles J (at first instance) said:
“The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1) … in the Article 10 context, special protection is afforded to political speech and debate on questions of public interest.”
Comment
It is possible that the confusion arises from the fact that the right to hold a belief and the right to manifest it do not attract exactly the same protection. The former is absolute; the latter is qualified. This means that, as recently discussed by the EAT in Higgs v Farmor’s School & anor [2023] EAT 89, not every expression of a protected belief is protected.
Nevertheless, there is a strong presumption against interference with the manifestation of religious or philosophical belief. The onus is on those wishing to curtail the expression of protected beliefs to establish that it is necessary to achieve one of the aims specified at article 10(2), and that the means used are proportionate.
These questions are fact-sensitive, with few hard rules. One thing that is certain is that the law takes freedom of expression seriously, and in particular takes account of the chilling effect that any interference may have on the ability of others to exercise their rights; see R(Miller) v The College of Policing [2021] EWCA Civ 1926):
“The concept of a chilling effect in the context of freedom of expression is an extremely important one … when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”
The legal problem is where precisely to draw the line between protected speech, and speech so grossly offensive that interference can be justified. That line was not crossed by Harry Miller’s “opaque, profane, or unsophisticated” tweets; it is unlikely to be crossed by academics and scholars speaking about biological sex or its importance in political or social life. Academics and those who represent them can rely on a strong presumption that manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression.
Conclusion
Academic freedom in the UK (and many other parts of the world) is under threat from across the political spectrum. Instead of meeting that threat and defending academics, many institutions have been dismayingly ready to acquiesce in or even encourage the destruction of academic freedom. In particular, a union for academics should be knowledgeable about its members’ rights, and quick to defend them when they are attacked. The unflinching pursuit of truth is the beginning and end of academic integrity and the primary purpose of any institution seeking to represent scholars and their interests.
Within academia, only truth is sacred. Sometimes truth offends. So be it.
Dr Michael Foran is a Lecturer in Public Law at the University of Glasgow.
Very helpful detail which can be mined used to provide rebuttals to the persistent and terrifying onslaught of efforts to silence even the most careful of questions. Thank you.
It seems to me that your analysis overlooks the importance of context. Miller’s profane tweets didn’t cross the line that justified criminal prosecution (or other attention from the police). But that doesn’t mean that if, say, he’d been the manager of a children’s home, disciplinary action against him would not have been justified under article 10-2.
Similarly, a history textbook which says that the 9/11 attackers were Muslim is obviously protected by article 10. But an EDL member who stands outside a mosque every Friday, holding a megaphone, and yelling such at exiting worshippers, is unlikely to be able to rely on article 10 – or on the factual truth of what he’s saying – to escape prosecution.
It’s not just the bare content of speech that determines whether or not the right to freedom of expression will be overridden.
Your analysis could certainly be applied to activists who demand violence against women. Here I would be thinking of signs with messages like ‘decapitate a TERF’ or ‘arm trans kids’ or even people shouting such things as ‘if you see a TERF punch them in the face’.
All of these were deemed to be ‘acceptable speech’ however. I don’t see them as such, I see them as inciting violence.
Yet someone saying sex is real and immutable should never be spoken apparently.
That elegantly misses the point of the article, which is that a trades union for academics, misstated the law and announced that it taught its members that misstatement.
It also ignores the statement in the article that questions are fact sensitive – misrepresenting the author’s position in doing so, by suggesting that he thought the opposite.
In reality, your comment seeks to suggest how the freedom of manifestation of belief might be limited in some circumstances. That’s hardly a controversial opinion (you can believe in censoring theatre but can’t shout fire during the performance) but – as the article makes entirely clear – it’s unlikely to be hugely relevant to academics.
I always find it helpful to think of Pussy Riot in the context of this debate. They were a challenge to fixed and authoritarian thinkers because their method of expressing their views compelled attention without violence. If your argument would support the Putinist position, it’s probably wrong.
I think article does cover conext;
“These questions are fact-sensitive, with few hard rules”
Well, quite. It’s not difficult, but evidently needs saying. Thanks for setting it out.
I’m increasingly wondering though whether the whack-a-mole remedy of individual damages actions before employment tribunals to vindicate the right to express GC views a la Forstater is sufficient.
What about adding to the right to the existing right to damages a further right to seek an order declaring the employer/union/charity whatever was acting in pursuant of a systemically discriminatory policy and was required to remedy it on pain of direct penalties for directors and other relevant acting officers involved in the policy? Could be monetary. Could be suspension or dismissal. It seems to me we need a more direct tool to have discriminatory EDI and similar policies brought into conformity with legal obligations.
Too strong? I’m still mulling it over. Thoughts?
@S. Taylor – I totally agree. Employment tribunals need to be able to demand specific changes to how companies do business, then enforce those with the possibility of major punitive fines. In my own case, I fear that the cost of paying me off will be seen as simply “the price of doing business,” and absolutely nothing will change.
@Rabbi Gabriel Kanter-Webber, I don’t believe the authors have overlooked the importance of context. On the contrary, I see it addressing context head-on.
The stated context is UK academia. This piece responds to comments by “Jo Grady, the general secretary of the University and College Union” (see opening sentence). The conclusion begins with the words “Academic freedom in the UK…”, the final short paragraph with the words “Within academia…”.
The authors consider how the law applies specifically to the context of academics expressing gender critical views in their work, which is the context to which Jo Grady was speaking. “Academics,” they say, “are granted heightened protection in their expression” because of the nature and purpose of their work. With reference to that specific context, they therefore explain, “academics and scholars…can rely on a strong presumption that manifesting their gender critical beliefs will be protected under Equality and Human Rights law in their expression”.
Perhaps the article is worth reading a second time, if you struggled to see where context was covered on first reading.