Education and freedom of speech – what happens when there is a risk to safety?
The wider lessons for education providers while freedom of expression is of fundamental importance, it is not an absolute right. In the event that there are safety concerns, education providers should very carefully have regard to any policy, consider any alternatives and ensure that any decision contains detailed reasons as to how they made any decision properly having regard to human rights and any relevant statutory duties.
What happens when a University changes its mind about allowing a controversial conference because of fears of risk to safety? This was the subject of the decision in R (Ben-Dors) and others v University of Southampton  EWHC 953 (Admin). The University had given permission for a controversial conference to take place. It then became aware that there was a real risk of a significant protest and having taken advice from the Police, withdrew permission for the conference to take place, but with an offer to re-arrange the conference in the future. The University also was of the view that the conference organisers should pay some of the additional security costs in connection with the conference.
The conference organisers made a claim for judicial review primarily on the basis that there had been an unlawful interference with their rights of freedom expression under article 10 of the European Convention on Human Rights. The case also included specific statutory duties for universities under section 43 of the Education Act 1986. While those statutory duties are specific to further and higher education the general principles under the European Convention are applicable to schools.
In her judgment Mrs. Justice Whipple said:
"The Claimants contend that the Defendant’s decision amounts to a disproportionate interference with the Claimants’ Convention rights. In addressing those challenges, I have firmly in mind the four stage approach to issues of proportionality of interference with Convention rights, summarised by Lord Sumption in Bank Mellat v HM Treasury (No 2)  AC 700 (and recited in Carlile at ) as follows:
“ … the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”
On the specific facts of the case, the claim ultimately failed. The interference was considered to have been reasonable and proportionate.