Freedom of speech, visiting lecturers and harassment
One group opposes the views of another and objects to them being afforded formal opportunities to express those views.
It is therefore worth a reminder of the relevant law governing this fraught area, with a focus on claims that the very presence of visiting lecturers creates a negative environment for those opposed to their views, amounting to harassment rendered unlawful by the Equality Act 2010.
Institutions have a statutory obligation 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 person/body.
Further, institutions must act in a manner compatible with the rights guaranteed by the European Convention on Human Rights. The relevant right in this context is Article 10 (freedom of expression) which includes the right not only to hold and express opinions, but also to receive and impart information and ideas without unjustified interference by the institution. The right extends not only to ideas and views that are well received, but also to those that offend, shock or disturb. The right can be interfered with in order to pursue a legitimate aim, for example to protect the rights of others, provided that the interference goes no further than is necessary in order to protect the rights in question.
Harassment, contrary to the Equality Act 2010, could therefore act as a limitation on freedom of speech or expression. It is important however to understand the conditions that need to be fulfilled in order to make a successful claim of harassment.
The Equality Act s26 defines “harassment” as unwanted conduct (e.g. hosting a lecture) related to a relevant protected characteristic (e.g. gender reassignment or sex) where the conduct has the purpose or effect of:
• violating a person’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The second limb of the statutory definition is that in order to establish that the conduct had that effect, the following must be taken into account:
• the perception of the alleged victim (the subjective element)
• the other circumstances of the case; and
• whether it was reasonable for the conduct to have that effect (the objective element).
The obligation in the statute to take account of reasonableness requires regard to be had to interests wider than those of the alleged victims of the unwanted conduct in question. Those wider interests in the context of visiting lecturers’ views relate to the fact that institutions are academic environments in which proper intellectual enquiry is promoted. If challenge and debate take place in the spirit of that enquiry, then it will be difficult for anyone opposed to a speaker’s views to claim that notwithstanding the fact that they felt violated, humiliated etc. it was reasonable for them to feel that way in the circumstances.
The challenge for institutions is to maintain the standard of debate. Students and others attending should therefore be reminded of the conduct expected of them, including the right to challenge and test, but in way that has deference to genuine academic and intellectual goals.
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