Public Law

External speakers play a key role in further debate and learning within further and higher education institutions. However, many such institutions can be concerned about the safety and reputational risks created when hosting speaking events for particularly controversial speakers. This has led some institutions and/or their student union bodies to introduce “no platform” policies, which try to prevent divisive figures from speaking on university campuses.

Education building

Recent legal advice obtained by the National Union of Students (NUS) suggests that no platform policies may be unlawful. NUS sought an opinion from Christopher McCall QC, which concludes that no platform policies are only legal if applied to members of proscribed groups like terrorist organisations. The advice refers to section 43 of the Education (No 2) Act 1986, which requires universities in England and Wales (and, by extension, student unions) to ensure freedom of speech.

That particular provision does not apply in Scotland. What are some of the key legal issues that Scottish further and higher education institutions and their student unions would need to consider in implementing similar policies?

  • There is a general duty on Scottish universities in terms of the Further and Higher Education (Scotland) Act 2005 to protect the academic freedom of their staff. Restricting certain speakers could interfere with this principle.
  • Scottish universities have a duty to ensure freedom of speech in terms of the Human Rights Act 1998. Before preventing a particular speaker from holding an event on campus, they would need to balance the rights of the speaker to express views (even views that may be offensive) against any risk of harm to the rights and interests of others.
  • The Human Rights Act also protects the right to freedom of thought, conscience and religion and the right to freedom of assembly and association. Some events may be linked to a particular faith or involve worship, or they may be taking place as a form of protest. Interference with these rights must be necessary and proportionate.
  • Universities also have a duty to comply with the Equality Act 2010. Any policies must be non-discriminatory. There could be a risk of policies having a greater adverse impact on, for example, certain religious groups or people of a particular race.

Any policy of this nature should be very carefully thought through to avoid the risk of legal challenge and reputational harm for the institution and its student voice.

 

Gemma McKinlay

Associate at Brodies LLP
Gemma is a senior solicitor in Brodies market-leading Public Law & Regulatory team in. She advises on a range of public law and commercial issues.  Her specific areas of practice expertise include powers and duties of local and central government, statutory interpretation, equality and human rights, data protection and freedom of information laws.
Gemma McKinlay