Regulatory advice 24: Guidance related to freedom of speech

Section 1: Freedom of speech

In this section:

• Article 10 of the Convention
• Academic freedom

14. This section explains what we mean by ‘freedom of speech’ and ‘academic freedom’.
15. The Act defines freedom of speech as: ‘the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the European Convention on Human Rights (“the Convention”) as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form).’⁵ This right includes freedom of artistic expression, such as a painting or the production of a play.

Article 10 of the Convention

16. The Act refers to Article 10(1) of the Convention, ‘as it has effect for the purposes of the Human Rights Act 1998’. One effect of the Human Rights Act 1998 is to enshrine the Convention rights into UK Law. Article 10 relates to the right to freedom of expression.

16. (A) In addition, Article 17 of the Convention will be relevant to ensuring that Article 10 is not applied in a way that seeks to destroy other Convention rights. Speech that meets that very high threshold is excluded from the ambit of Article 10(1) and therefore there is no duty to secure it.

16. (B) In addition, Article 17 of the Convention will be relevant to ensuring that Article 10 is not applied in a way that seeks to destroy other Convention rights. Speech that meets that very high threshold is excluded from the ambit of Article 10(1) and therefore there is no duty to secure it.

17. Higher education providers and their constituent institutions are subject to the requirements of HERA. Those that are public authorities for the purposes of the Human Rights Act 1998 must also comply with the Human Rights Act 1998 and the Convention. This includes not acting incompatibly with a Convention right, including the right to freedom of expression.
18. When we are assessing whether a provider or constituent institution is compliant with its free speech duties under HERA, we expect to consider (among other things) whether it has acted compatibly with the Convention right to freedom of expression. This is because:
    1. the Act explicitly defines freedom of speech by reference to Article 10(1) of the Convention; and
    2. consideration of Article 10 is necessary to ensure that any restriction or regulation of freedom of speech is proportionate.
19. Article 10 provides a sensible legal framework and places a ceiling on any restriction or regulation of freedom of speech that a provider or constituent institution may impose. The ‘secure’ duty in HERA may further narrow the scope for any such restriction or regulation.

Academic freedom

20. The duty to secure freedom of speech includes (as relating to academic staff) securing academic freedom. The Act defines academic freedom, in relation to academic staff at a registered higher education provider (or constituent institution), as their freedom within the law:
    1. to question and test received wisdom, and
    2. to put forward new ideas and controversial or unpopular opinions
       
       

       without placing themselves at risk of being adversely affected in any of the following ways:

    3. loss of their jobs or privileges at the provider;
    4. the likelihood of their securing promotion or different jobs at the provider being reduced.

21. The Act is clear that the duty to secure freedom of speech includes a duty to secure academic freedom as so defined.

Notes

[5] See Part A1 section A1(13) of HERA.