ONE of the most irritating things about the Tories at Westminster is their utter hypocrisy. While trumpeting the importance of human rights at home and abroad, their approach to protecting them is very selective. Often, they do the opposite of what they say. One distinguished professor of law has called it “constitutional gaslighting”.
To take just one example, last week the Joint Committee on Human Rights heard alarming evidence from police, lawyers and the Gypsy, Roma, Traveller community about the likely impact of the Tories’ plans to criminalise unauthorised encampments and seize traveller’s property including their caravans.
While purporting to defend the property rights of landowners the Tories are prepared to throw the travelling community’s way of life under the bus and have a very cavalier attitude to the travellers’ right to peaceful enjoyment of their property. These proposals are just one more objectionable aspect of the Police, Crime, Sentencing and Courts Bill which fortunately will not apply in Scotland where, witnesses told us, the attitude towards the Travelling community is considerably more benign (Douglas Ross excepted).
When it comes to protecting the right to freedom of expression, the Tories approach is equally inconsistent. In the Queen’s Speech they proudly announced a bill to protect freedom of speech in universities. However, they also promised to continue with the Police Bill Part III of which will fundamentally undermine the right to protest in England.
What the Tories forget or seem to be happy to ignore is that the right of freedom of expression is universal. It matters as much for an itinerant Extinction Rebellion protestor as it does for those privileged enough to be university educated.
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Articles 10 and 11 of the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) impose a positive obligation on governments to facilitate the right to freedom of expression including freedom of speech, peaceful assembly and protest. These rights can only be qualified where it is necessary and proportionate to do so and any legal restrictions must be “accessible” and their consequences “foreseeable”.
This means that any lack of clarity in the law or in government policy, which leads an individual to be unsure about the legality of their actions, could be an unjustified interference with Article 10 and 11 rights. It is important therefore that our laws are clear, so they don’t have a “chilling effect” on free speech and lawful protest. This was a concern which cropped up repeatedly during the debate in the Scottish Parliament on the Hate Crime and Public Order Bill which is now an Act of Parliament but not yet in force.
While I am deeply sceptical of the Tories’ commitment to freedom of expression, several recent cases have highlighted that there is an issue with freedom of speech in universities which needs to be addressed and is not confined to English universities. Many of these cases involve academics or students who hold gender critical views, which means they believe that sex is immutable and that whilst gender identity should be respected, self- identification of sex should not be enshrined in law.
The case of Lisa Keogh, a working-class mature law student at Abertay has received widespread publicity. Her final exams have been blighted by a disciplinary investigation instigated by students who objected to her gender critical views.
At Edinburgh University, Dr Neil Thin (above), a well-respected senior lecturer was accused of holding “offensive views” (including gender critical views) and had to stand down pending an investigation. Some of his accusers had used hateful and abusive language towards him, but they are not facing disciplinary proceedings even though their behaviour appears to have been in breach of the university’s code of conduct which prohibits harassment and bullying.
In England the University of Essex recently published a major independent report by a barrister and expert in employment and discrimination law, Akua Reindorf. She was tasked with investigating the no-platforming of two respected feminist academics who were wrongly accused of being transphobes who had engaged in hate speech. They themselves had faced “violent and profane” threats from students in respect of which no action was taken. Both women have now received a full apology from the university. Akua Reindorf’s report concluded the university had failed to apply existing law correctly because of flawed “no debate” policies and guidance promoted by Stonewall which had misrepresented equalities law and were not compatible with academic freedom
She reviewed the relevant law and emphasised that, as public authorities, universities are bound under the Human Rights Act (HRA) to uphold the right to free speech and freedom of assembly and association and the right to freedom of thought, conscience and religion under Article 9 of the ECHR.
Article 9 protects non-religious beliefs such as veganism and belief in man-made climate change as well as religious beliefs. So does the Equality Act and lawyers and feminists are currently awaiting the outcome of an Employment Appeal Tribunal where the appellant, Maya Forstater, a woman who lost her job for her gender critical beliefs, is arguing that such beliefs amount to a “belief” for the purposes of the legislation. The Equality and Human Rights Commission (EHRC) intervened in the appeal to support her argument.
The EHRC is the independent statutory body responsible for encouraging equality and diversity, eliminating unlawful discrimination, and protecting and promoting human rights across England, Scotland and Wales. Their support is very significant.
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THE Equality Act prohibits discrimination, harassment or victimisation related to a protected characteristic. There are 10 protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief and sex. The EHRC have also emphasised that there is no hierarchy of protected characteristics.
As public authorities universities are bound by the Equality Act’s Public Sector Equality Duty to foster good relations between groups with different protected characteristics. Akua Reindorf’s report explains that preventing gender critical women from speaking at a university is a potential violation of that duty. Furthermore, the no-platforming of gender critical women may amount to indirect sex discrimination against women at the university on the basis that more women than men tend to hold gender critical views.
When the Joint House of Lords and Commons Committee on Human Rights reported on freedom of speech in universities in 2018 we recognised that there was a problem albeit we did not find the wholesale censorship of debate which some media coverage had suggested. We made various recommendations short of legislation including closer co-operation with the EHRC. Now, more than ever, a full appreciation of equalities law is what is required. Rather than taking up parliamentary time with more legislation, universities need a refresher course in the existing law particularly the duties which are incumbent on them under the Equality Act.
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