ABSTRACT

Some advocates of free speech are currently arguing that universities and other organisations are far too prompt to accept curbs on expression or expressive acts in relation to issues such as transgender rights, racism, feminism and religious extremism. Such curbs tend to be aimed at offence-avoidance: as a result, such advocates argue that debate on these and cognate issues is, in some instances, being silenced. But other commentators oppose this view, arguing that merely allowing the airing of all sorts of views offensive to some facilitates intolerance and opposes equal dignity. Against the background of such ongoing debates on the concept of the so-called ‘cancel culture’ affecting some institutions, especially universities, this piece will interrogate various restrictions on expression that some view as linked to that concept. This contribution will then place such restrictions within the European Convention on Human Rights (ECHR) framework by considering the balance to be struck between freedom of expression as protected under Article 10 ECHR, on the one hand, and the interest of minority and/or marginalised groups not to be confronted with opinions or viewpoint-based behaviour that may denigrate them, on the other. The contribution seeks to come to some conclusions on ways to achieve this balance, taking account of the standards set by relevant ECHR jurisprudence. It will ask, fundamentally, whether or how far the concept of curbing lawful but arguably harmful expression is compatible with those standards.

INTRODUCTION

This contribution sets out to scrutinise closely conflicting narratives about so-called ‘cancel culture’ in the UK in educational and employment settings, especially in the campus context. The contested idea that a person can be ‘cancelled’ – their views excluded or expunged from public platforms, or from an employment context – has polarised debate. Certain advocates of free speech are currently arguing that educational organisations, in particular universities, and some employers, have allowed so-called ‘cancel culture’ to stifle free expression. It has been argued that some institutions are far too prompt to accept curbs on expression or expressive acts in relation to issues such as transgender rights, racism, feminism and religious extremism.

INTRODUCTION

In contrast to opposite-sex unmarried partners, same-sex partners did not receive recognition as ‘families’ under Article 8(1) of the European Convention on Human Rights until recently. But as same-sex couples in Europe increasingly sought recognition and protection of their relationships, a number of them turned to Article 8, read with Article 14, at Strasbourg, arguing that the state is under an obligation stemming from Article 14 to avoid discrimination against them within the scope of respect for family life under Article 8(1). This chapter traces a movement at Strasbourg from eventual recognition of same-sex couples as ‘families’ to (qualified) recognition of their right to a registered partnership under Article 8. At present, a right of opposite-sex couples to choose a registered partnership under Article 8 has not been established. That is because, as this chapter explains, they can access formalisation of their union via marriage, as they can do in all Member States. The Strasbourg Court currently takes the view that the decision whether to enable such couples to have a choice between marriage and a registered partnership is within the margin of appreciation of the Member State.

The Strasbourg jurisprudence in the area of registered partnerships takes a restrained stance, due to its reliance on finding a consensus in Member States on affording same-sex couples access to a means of formalising their union. A number of the decisions have arisen in the context of transsexual relationships, but the fact that part of the case law concerns transsexuals should not be allowed to obscure the analogies that are explicitly – and can be impliedly – drawn in it in relation to non-transsexual couples seeking to access registered partnerships. Thus, while the discussion below of necessity covers cases that on a superficial reading appear to be partially unrelated to access to registered partnerships, that is not in fact the case, as this chapter seeks to demonstrate. As this chapter concludes, at present the Strasbourg Court has demonstrated, partially via the vehicle of certain transsexual cases, that it is prepared to give some, qualified, support to acceptance of a positive obligation under Article 8 to introduce registered partnerships in Member States that have not so far introduced them.

Introduction

Part I of this book concentrated largely on the mechanics of the Human Rights Act itself, the topic that has understandably tended to form the main preoccupation of the academic literature, while Part II considers aspects of its use in relation to various areas of substantive law, taking some account of its effect in curbing the power of public authorities as it impacts on individual rights. In contrast, this chapter examines judicial reasoning in clashing rights cases, concentrating especially on the intriguing and ambiguous decision of the House of Lords in Re S (A Child). There is not so far a great deal of literature considering the proper domestic approach to clashes of Convention rights, and this topic is also somewhat neglected in relation to the Convention itself. The horizontal effects debate has so far dominated the question of the governance of relations between private parties by the Human Rights Act (HRA). But little has been said in relation to instances in which the main question in relation to private parties is not that of the legal basis of their claims, but of their resolution in instances where conflicting Convention rights under the HRA enter the arena.

Introduction

A number of commentators have pointed out that the inception of Bills of Rights tends to have the effect, as in Canada, of requiring courts to grapple with justifications for rights and freedoms, taking a more philosophical approach to legal reasoning as they attempt to resolve conflicts between individual rights and competing societal and individual interests. When countries adopt a document setting out a list of human rights with special constitutional status (‘a Bill of Rights’), the effect on judicial reasoning tends to be dramatic – as it was in Canada when it adopted the Charter of Rights. In 2000, the Human Rights Act came into force – affording the European Convention on Human Rights further effect in domestic law – and, while it does not have the entrenched status of other Bills of Rights, there is agreement that it does have what ‘constitutional’ status UK law allows.

Academics and lawyers agree that the introduction of the Act was one of the most significant developments in the public law field in the last 100 years. The Act did not create a home-grown Bill of Rights for the UK; instead, it gave further legal effect to the European Convention on Human Rights. Thus, its impact on judicial reasoning was less predictable than was the case in the broadly equivalent situation in Canada.