On 16 February 2021, the UK Education Secretary Gavin Williamson announced new legal measures at universities to safeguard freedom of expression from “unlawful ‘silencing’ on campuses.” The proposal includes free speech provisions in university funding agreements and a new right to compensation for individuals who are at the receiving end of “no platform” policies. These measures give effect to a pledge in the Conservatives’ 2019 Election Manifesto and seek to address concerns that right-wing thinkers are being silenced by left-wing activists on university campuses. No platforming refers to a form of activism on university campuses that typically involves a student group denying a platform to a controversial speaker. Critics of no-platform policies cite controversial examples such as the 2020 Oxford University event at which former Home Secretary Amber Rudd was invited to speak, only to be disinvited thirty minutes before the event was due to commence.
Proponents of such measures argue no-platform policies protect students – particularly religious, racial, gender and sexual minorities – from the harmful effects that welcoming certain speakers to campuses could produce. Without no-platform policies, universities risk endorsing hateful speech which could leave students vulnerable in an environment in which they should be safe to learn. Meanwhile, critics counter that students cannot have a fulfilling educational experience without encountering challenging views, for which academic freedom is a precondition.
Despite certain Conservative politicians being openly hostile to human rights law, the language of human rights is often invoked by the critics of no platforming. But, does UK human rights law, as it stands, prohibit universities from adopting no platform policies?
The answer is somewhat complicated. According to the Equality and Human Rights Commission (EHRC), the UK’s independent equalities watchdog, such policies can interfere with human rights. In its guidance to universities, the EHRC states that “everyone has the right to express lawful views… without interference from the state or other bodies carrying out public functions, including most higher education providers.” The guidance goes on to say that Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression, means that “student complaints and protests should not result in [universities] imposing limits on course content or speaker events organised by lecturers.” The EHRC therefore seems to take the view that no platform policies could constitute human rights violations.
However, the circumstances in which such policies could be violations remains elusive. Its guidance also asserts that having human rights obligations “does not mean that any group or speaker has a right to be invited to speak to students.” The right to freedom of expression clearly does not require public bodies to give everyone a platform, but it is unclear what it does require. On the one hand, the decision by a university not to invite someone to speak at an event on the basis of a no platform policy could be viewed as a violation of Art. 10, but on the other hand, Art. 10 does not vest universities with a positive obligation to issue an invitation to a speaker. This is a confusing situation.
The European Court of Human Rights’ case law on freedom of expression provides some help in squaring this circle. Art. 10 is not an absolute right and it may be restricted in certain circumstances as “necessary in a democratic society.” To determine whether an interference with Art. 10 is a violation, a three-step test must be satisfied: firstly, was the restriction provided by law? Secondly, did it pursue a legitimate objective? Thirdly, was the measure proportionate to the legitimate aim pursued?
For a university being challenged on a no platform policy, the first two hurdles should be easy to clear. The first criterion is satisfied if the policy has been adopted, for instance, in the form of a university byelaw or other official way. The second criterion is satisfied if it can be shown the policy was adopted to safeguard vulnerable students or reduce the risk of other students being radicalised by an extremist speaker. The proportionality test is usually the controversial question in relation to Art. 10 and will hinge, in part, on the extent of the interference.
In Jersild v Denmark, the penalisation of a radio presenter for failing to challenge the remarks of neo-Nazi interviewee was deemed to be disproportionate to the legitimate aim pursued by the legislation. Crucial to the decision in Jersild was the fact that the radio presenter had been subject to a heavy fine and criminal prosecution.
The difficulty in relation to no platform policies is that being barred from speaking at an event is not really a form of punishment. It is not an interference in the sense that the person barred from speaking is not being deprived of a right. They are merely unable to access an opportunity that the vast majority of people cannot access anyway. It is therefore unlikely that a no platform policy will be considered disproportionate and thus in violation of Art. 10.
Of course, we cannot know this for sure until a higher court in the UK or the European Court itself deals with no platform issues directly. The most relevant UK case to this purpose is R (Ben-Dor) v University of Southampton where a group of academics complained of a violation of Art. 10 when the respondent university cancelled a controversial conference citing safety concerns. The court found there to be no violation of Art. 10, finding that the measure of cancelling the conference was proportionate to the aim pursued of safety on the university’s campus. This decision shows that a no platform policy would be compatible with Art. 10 where it is proportionate to the legitimate aim of public safety on a university campus.
The government is on shaky ground in asserting that no platform policies violate human rights. You may well oppose no platform policies, and you would be entitled to do so. However, attempts to frame them, as the government has, as a grave threat to human rights is hyperbolic, and should be resisted.
This post was originally published on LSE Human Rights.