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Academic freedom of expression and the Government consultation on the Human Rights Act

Posted on 18 January 2022

Last month, following the publication of Sir Peter Gross' report on the Human Rights Act (respectively, the Report and the HRA) the Government launched its consultation entitled Human Rights Act Reform: a Modern Bill of Rights (the Consultation) requesting responses on wide-ranging proposals to reform the HRA.

The Report did not make recommendations in relation to academic freedom of expression. However, amongst the government proposals, a stated aim of the Bill of Rights is to strengthen the right to freedom of expression, with Deputy Prime Minister and Justice Secretary, Dominic Raab, describing this as "the liberty that guards us all" in the article which prefaced the Consultation publication.[1]  His concern is that "a combination of court-innovated privacy law, licensed by the HRA, and the hyper-sensitivity of some in our society to opposing views, has incrementally and surreptitiously whittled away the scope for the rambunctious debate which is essential to our democracy".[2] 

The Consultation document makes clear that the Government believes there should be a presumption in favour of upholding the right to freedom of expression and wants to "provide more general guidance on how to balance the right to freedom of expression with competing rights" rather than leaving this to the courts' to develop. The proposals also ask for suggestions on steps to ensure the protection of journalists' sources. 

Mishcon de Reya will be submitting a detailed response to the Consultation, which closes in March 2022.

In the meantime, we note that the Consultation briefly touches on freedom of speech in the education sphere, noting that "[t]he challenges for freedom of expression are increasingly also reflected in [...] higher education."

It further states,

The government is also clear that freedom of speech and academic freedom are fundamental principles, not least in the higher education sector. Academic freedom has rightly enjoyed a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression. This is due to the special place our universities have historically held as centres of enquiry and intellectual debate.

While the Consultation is correct in distinguishing academic freedom of speech - which qualifies for enhanced protection under Article 10 of the European Convention on Human Rights - it is however Strasbourg case law (rather than domestic law) that has repeatedly reiterated the significance academic freedom as protected. For example, in relation to Article 10, Strasbourg case law highlights “the importance of academic freedom, which comprises the academics' freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction”.[3] It is unlawful for universities, as public authorities, to act in a way which is incompatible with a Convention right[4]. As a result, and because other domestic legislation adds little in the way of protection[5], the HRA is a key outlet to defend academic freedom of speech.

Further, the Consultation makes no mention of how the Bill of Rights might interplay with the Higher Education (Freedom of Speech) Bill which seeks to extend and strengthen existing legislation intended to uphold freedom of speech and academic freedom in universities and students’ unions (but is itself subject to controversy). Worryingly, the new Bill's definition of academic freedom is restricted to matters within an academic's "field of expertise". This is much narrower than the scope of the protection for academic freedom of speech in the Strasbourg jurisprudence. Even with the HRA, this definition is dangerous and, without the gloss of that case law, it could have disastrous effects on the protection for academic freedom of speech.

The Consultation does not set out any proposed mechanisms to preserve the "special status" of academic freedom of speech in the proposed Bill of Rights. If the intention is to move away from the Strasbourg court, then it is essential that provision for academic freedom is properly addressed.

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