Censorship or justified Concern?

24 May 2016 by Dominic Ruck Keene

IR(Ben-Dor & Ors) v The University of Southampton [2016] EWHC 953 (Admin) (read judgment)

Mrs Justice Whipple dismissed one claim for judicial review, and refused permission to bring a further claim, in respect of decisions made by Southampton University regarding a proposed conference on the legality of the existence of Israel under international law. She held that the University had lawfully withdrawn its permission to hold the conference in April 2015, and refused permission to challenge the University’s subsequent decision to require the conference organisers to meet the conference’s security costs as a condition of allowing the conference to take place at a later date. The conference organisers had claimed that both decisions represented an unlawful interference with their Article 10 right to free expression and Article 11 right to free assembly.

The University’s decisions

While the University accepted that the proposed conference was a legitimate academic event, it became increasingly concerned by the end of March 2015 that the conference speakers had a ‘distinct leaning’ to one point of view (essentially anti-Israel) rather than the original intention of a balanced exchange of views, and more significantly that there was an unacceptably high risk of disorder if the conference were to go ahead.

The basis for the University’s risk assessment was that:

1. it had received information regarding the likelihood of significant numbers of protestors targeting the conference;
2. it, rather than the Police, had primary responsibility for maintaining good order at an internal event such as the proposed conference; and
3. the Police’s risk assessment noted the potential for protest from various groups across the political spectrum and recommended that the University should take into consideration the contemporaneous Joint Anti Terrorist Centre’s assessment of the overall threat of terrorist activity within the UK when seeking to mitigate the threat against the conference as a potential terrorist target. The police assessment had concluded that it was likely the event would lead to the attendance of groups with opposing views and in turn to the potential for disorder.

The University ultimately concluded on 1 April 2015 that the conference could not place later that month on the basis that the University would not be able to put in place measures or take remedial action to ensure that good order could be maintained on campus in order to safeguard staff and students. This was the first decision challenged by the claimants.

In February 2016, the University informed the conference organisers that the conference would take place in April 2016 subject to certain conditions, in particular that the conference organisers would have to meet the costs that would be incurred by the University in providing security to the conference (just under £24,000). This was the second decision challenged.

The challenge

The conference organisers argued that:

(1) the initial decision to cancel the conference breached the University’s mandatory duty under Section 43 of the Education (No 2) Act 1986 to take reasonable steps to secure freedom of speech;

(2) the initial decision breached the University’s Code of Practice regarding securing freedom of speech;

(3) the initial decision breached their Article 10 and 11 rights;

(4) the initial decision were based on irrelevant considerations, in particular external factors such as the recent terrorist attacks in Paris.

The University had therefore capitulated to a speculative risk of disorder that was insufficient to justify banning the event, and had failed to neutralise any risk that may have existed by taking appropriate measures.

The law

Whipple J cited R (Lord Carlile of Berriew) v SSHD [2014] UKSC 60, as the relevant guidance as to the approach that should be taken in considering allegations that a public authority had impermissibly interfered with an individual’s rights under Articles 10 and 11. She held at [62] that:

Carlile confirms, if any confirmation were needed, that the Convention rights at issue here are very important, freedom of expression being “one of the essential foundations of a democratic society” (para [13]). But it also confirms that rights under Articles 10 and 11 are qualified and not absolute (see [37]). The proportionality of interference with those rights is ultimately a matter for the Court … but the Court cannot simply substitute its own decision for that of the primary decision-maker or frank the decision without itself considering it. As to significance to be attached to the particular decision in any case, Lord Neuberger said this:

[68] ” … The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality.”

In applying that guidance to the facts of this case, it is clear that the Defendant has the “relative institutional competence” … to evaluate the risks posed by the conference going ahead as planned, and to determine whether it had sufficient time and resources to mitigate those risks. The nature of the Defendant’s decision was essentially predictive: by it, the Defendant looked to a number of risks which had been identified but were incapable of precise quantification, and in light of those risks, the Defendant looked to the type of measures which it would have to put in place to mitigate against them and ensure public safely in light of them; it made a judgment about whether that could be done in the time available.

In respect of the approach to proportionality of interference with ECHR rights, the judge cited Lord Sumption in Bank Mellat v HM Treasury (No 2) [2014] AC 700:

[20] … 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.

Accordingly, Whipple J held that the two main issues before the Court were the factual question as to why the University had withdrawn its permission to hold the conference, and secondly whether the cancellation was a proportionate response to any risks identified.

The decision

With regards to the first question, she held that there was an obviously credible sequence of events and decision making to show that the University had been concerned about an identified risk of public disorder and concluded that there was insufficient time to ensure that the risks could be sufficiently mitigated.

With respect to stages (i) and (ii) of the proportionality test, Whipple J held that the University’s withdrawal of permission to hold the conference was driven by its concern for the safety of persons present on its premises, including its own students and staff, but also conference delegates and those who might come onto university premises to protest.

Under stage (iii) and (iv) she noted that:

• the interference was not a decision to permanently ban the conference from the University’s premises;
• there was no substance to the allegations that the risks of disorder were exaggerated or misunderstood and accordingly the University entirely reasonably concluded that there were significant risks to hosting the conference;
• the University was justified in taking into account the external overall terrorist threat in considering the likelihood of disorder within the University; and
• the University had no other way to comply with its non delegable duty to ensure the safety of its students and staff.

Accordingly, the University had had no real choice in withdrawing its permission.

The second challenge was dismissed more shortly – the judge held that she could see no reason why if funds were available, the conference should not fund its own security costs, and there was no reason why this would amount to any form of interference.

Comment

The judge accepted the University’s argument that there was “no large principle at stake here.” Her decision does mark a sensible application of the Supreme Court’s guidance from Carlile and Bank Mellat regarding the boundary of the court’s role in assessing the lawfulness of interference with free speech: in reality there was no outright ban, there was a specific warning of potential disorder given to the University by the police, and the conference budget was sufficient to cover the security costs.

However, while this case is not an open charter for academic institutions to close down free speech by imposing overly onerous conditions, it does represent a further example of where the growing popular unwillingness to listen to opposing views does sadly oblige universities to take the risk of disorder into account.