The courts generally accord freedom of speech a sacrosanct status. Article 10 of the European Convention on Human Rights enshrines that freedom which, among other things, is widely accepted to include the freedom to express controversial views and views that others might find offensive. 

Nick-Graham

Nick Graham

Those who want to exercise their Article 10 rights often need a ‘platform’ to do so, with social media being the platform of choice for many interest groups. Perhaps with the waning of the pandemic, those groups are now having to undertake the rather unglamorous job of hiring premises to hold meetings where they can debate, share ideas and organise.

Local authorities – which own many public buildings and manage numerous public spaces (libraries, schools, community centres) – are an obvious source of meeting rooms and, very often, councils are keen to encourage the community use of such facilities.

But what if the pressure group in question holds views that the local authority disagrees with, and the ‘troublesome’ group wants to use the meeting room to promulgate those views? Can the local authority refuse to hire the premises?

The issue was put to the test recently in Nottingham. In June 2022, Nottingham Women for Change organised a meeting at the city council’s Aspley public library and invited Julie Bindel (pictured above) to speak about violence against women. Bindel is a journalist and has spoken and written about what she terms ‘extreme trans ideology’ and is critical of gender self-identification. The day before the event was to take place, the city council cancelled the meeting on the grounds of Bindel’s views on transgender rights which, it stated, were at odds with the council’s equality, inclusion and diversity strategy. It did not want to be seen as offering ‘implicit support’ for such views. Undaunted, Bindel held the event in the library car park and reported that some protesters sought to disrupt the meeting.

On 7 October, following the threat of legal proceedings, the city council accepted the decision was ‘procedurally unlawful’ and issued an apology for ‘de-platforming’ Bindel along with an offer of compensation for ticket holders; it further indicated that any future application for room hire from Nottingham Women for Change would be dealt with lawfully.

Although there is no legal judgment in the case, in an article for UnHerd magazine (The toppling of the trans extremists, 10 October) Bindel hints at the legal arguments utilised by those acting for her.

In summary, these related to the council’s duties under the Equality Act 2010. Section 29(2)(b) prohibits a service provider from discriminating against a person by terminating the provision of a service. And, as the act makes clear, discrimination arises when someone treats a person with a protected characteristic less favourably, and a protected characteristic can include someone with a philosophical belief. The cases of Forstater v CGD Europe and Bailey v Stonewall, Garden Court Chambers & others confirm that a belief that a woman is defined by her biological sex is a protected belief for the purposes of the 2010 act. Seemingly the council accepted that its decision to withdraw the hiring of the premises was solely due to Bindel’s beliefs and, as such, it was discriminatory.

The Equality Act 2010 places other obligations on public bodies, namely the obligation to have due regard to the impact of the exercise of its public functions on those with a protected characteristic (the public sector equality duty). Although not entirely clear, Bindel maintains that the city council failed to have regard to that duty in her case – a duty normally fulfilled by an equality impact assessment considered at the time when the public function is exercised – that is, when the decision to cancel the event was taken.  

Can there ever be circumstances where a public body would be justified in cancelling an event where a controversial speaker might attend? The growing body of case law in this area commonly focuses on whether the treatment complained about was for a reason ‘related to’ the protected characteristic. In the employment context, employers have successfully argued that the reason for the treatment (usually disciplinary action) was the way in which the beliefs were manifest – rather than the beliefs themselves – which offended the employer’s dignity at work policies and were the true reason for the treatment. Conceivably, the decision to cancel an event at which a person holding controversial views might speak may be due to concerns raised on health and safety grounds, or representations from the police about public order, rather than any objection about the beliefs themselves. Absent such concerns, public bodies – or those, at least, offering platforms and premises for hire – will need to take a broader approach to those who they permit to speak.

A lesser-known provision of the Equality Act 2010 is found in section 149(1)(c). This requires a public authority, when exercising its functions, to have regard to the duty to foster good relations between people who share a protected characteristic. Fostering good relations is a duty that is becoming increasingly difficult to meet in these more polarised areas of public discourse.

 

Nicholas Graham is director of legal and democratic services at Buckinghamshire Council

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