It’s 1986 all over again as free speech on campus gets a bill of its own

Sometimes you just want it all to make sense.

In the Westminster government’s “landmark proposals” on online harms, the largest and most popular social media sites will be told to act on content that is “lawful but still harmful”, such as abuse that falls below the threshold of a criminal offence. The platforms will need to state explicitly in their terms and conditions how they will address these legal harms and Ofcom will hold them to account.

Meanwhile in the Westminster government’s “landmark proposals” on academic freedom and freedom of speech, universities and students’ unions are told that “our … system allows us to articulate views which others may disagree with as long as they don’t meet the [legal] threshold of hate speech or inciting violence” that this “must be defended, nowhere more so than within our world-renowned universities” and that “the government has been clear that it is important to distinguish between lawful, if offensive, views on the one hand and unacceptable acts of abuse, intimidation, and violence on the other.”

So does this mean that the legal but harmful expression of views is to be defended, or banned? Or both?

Basically, if you were hoping for some sense out of the publication of legislation to enact proposals in the Westminster government’s command paper on Freedom of Speech and Academic Freedom, we have bad news.

The press release tells us that the now published Higher Education (Freedom of Speech) Bill comes in light of examples of a “chilling effect” on students, staff and invited speakers feeling unable to speak out – and to illustrate the point uses the example of “over one hundred academics” signing a letter expressing public opposition to Professor Nigel Biggar’s research project “Ethics and Empire” because “he had said that British people should have pride as well as shame in the Empire.”

That, apparently, is not an example of freedom of speech in action – instead the fact that those 100 academics haven’t all been disciplined by their university for signing said letter is somehow positioned here as an example of freedom of speech inaction. The issue that there weren’t 100 of them (we make it 58, The Times says 60) just makes it clearer that the standards of proof here are quite low.

The other “example” in the release – Bristol University’s Middle East Forum (a student society) being charged nearly £500 in security costs to invite the Israeli ambassador to speak – is really a discussion about how student societies are funded. DfE isn’t saying that no security should have been provided – it’s insinuating that a way to cancel a speaker by the back door is to threaten a protest such that some heavies are required on the door.

Of course, raising Bristol does raise a range of other deeply uncomfortable potential contradictions in the agenda. Are students campaigning for the removal of David Miller an example of a “woke mob” trying to cancel someone for expressing lawful but offensive views, or should the university do as the government has suggested and do more to make its “condemnation of that conduct clear to current and future students to show its commitment to creating a welcoming environment for Jewish students”?

A better example of the kind of hot water that the government will find itself in over these sorts of contradictions came up on PM. Evan Davies asked Michelle Donelan about a case that came up when he was at university – a campus talk from holocaust denier David Irving and whether he would be protected by the new law:

What this bill is designed to do is ensure that we protect and we promote free speech that is lawful so any free speech that is lawful… Obviously it would depend on exactly what they were saying, whether they were straying into racism, whether they were straying into hate crimes, but a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful… There is a difference between condoning and supporting something, as opposed to standing up for free speech.

How on earth that position is compatible with demanding that universities adopt the IHRA definition of antisemitism, who knows. But that is highly likely to become a big issue as the bill weaves its way through Parliament.

It’s tempting, but won’t go over all of the contradictions, logical flaws, history or politics of all of this again here – you can go down that particular set of rabbit holes on the site at your leisure. Here we’ve taken a look in detail at what’s in the published proposed legislation, and had a think about what’s to come.

HERA and now

So how’s all this supposed to work?

What we have here is a piece of amending legislation that, as predicted, primarily amends the Higher Education and Research Act 2017 but also makes various amendments to the Counter-Terrorism and Security Act 2015, the Higher Education Act 2004 and the Education (No. 2) Act 1986. It is mercifully short – the rumours of an 11-section bill that we heard last year were only one section out – and low on any real surprises.

We start with an addition to the very start of HERA 2017, symbolically putting material on the “protection of freedom of speech” in the place that the Lords originally put a section describing the role of a university. The new text puts a duty on the government body of a registered (as in, OfS registered) provider to secure freedom of speech for staff, members, and students of the provider along with visiting speakers.

In particular it specifies that the use of premises cannot be denied to an individual or group on the basis of their “ideas, beliefs, or views” – terminology that we’ll see again and again in this legislation. Freedom of speech is defined as:

Freedom to express ideas, beliefs and views without suffering adverse consequences.

This only applies, mind you, within the law – and within an academic’s area of expertise. So if you’re a professor of evolutionary biology and fancy being rude about a particularly annoying religion, you’d be out of luck. At least, in terms of the protections offered in this bill. You might get a book deal or a prime time TV series.

There’s a specific duty to take reasonably practicable steps to secure academic freedom for academic staff at the provider – a principle which is extended to include the circumstances of seeking promotion or a different job at the provider and a new, separate but similar duty on of external applicants for academic roles at a provider – issues raised in that Policy Exchange report last year and which are likely to generate no end of complaints.

This is all to be done – as in the current duty – through a code of practice that must include a statement of the provider’s values relating to freedom of speech (hello Chicago) and an explanation of how those values uphold freedom of speech. It also has to set out the procedures to be followed by staff and students when organising meetings and activities, the conduct required in relation to such meetings and activities, and the criteria for specified decisions.

Interestingly the governing body here must also take reasonably practicable steps, “including where appropriate the initiation of disciplinary measures”, to secure compliance with said code of practice.

Union dues

There’s aspects of all of that will deserve further scrutiny as the bill moves through the parliamentary process. But the next big headline relates to students’ unions.

The open question was how they were to be included in the legislation – and it turns out that OfS is indeed to become a (partial) regulator of students’ unions – which will include creating a little of register of them, setting out (free speech) duties on them and having the power to fine them. It means that SU presidents can share in the joy of letters to the accountable officer at 4.45pm on Friday – which should strengthen the internal partnership a bit.

Much of the wording is the same as it is for universities – the duty will be to take reasonably practicable steps to achieve the objective of securing freedom of speech within the law for members and staff of the students’ union, students, members and staff of the provider, and visiting speakers.

It gets subtly different over what that entails – the duty includes that the use of premises occupied by a students’ union is not refused because of a person’s ideas, beliefs or views, or a body’s policy or objectives – but also that the terms on which premises are provided are not based on those grounds, and crucially that affiliation to the students’ union is not denied to any student society on those grounds.

They then have to have their own code of practice – which must also include a statement of the students’ union’s values relating to freedom of speech, procedures to be followed when organising meetings and activities, conduct required in relation to such meetings and activities, and the criteria for specified decisions – and just like universities, the union must take reasonably practicable steps, including disciplinary measures, to secure compliance with the code of practice.

Other than the bureaucracy, none of this will pose much of a problem for most SUs and picks up many of the issues that a group of SUs themselves worked on with us earlier this year – although there’s no mention here of the broader duties surrounding harassment, harm and risk that SUs have as charities.

The test may well end up being where one might draw the line between an organisation or person’s views, and their conduct – which surely both universities and SUs can and should discriminate on the basis of. And this is also potentially a charter for every organisation without a student society on campus demanding a stall at Freshers’ Fair.

Interesting is the general expectation here that if it’s within the law, it has to be allowed in. Throughout the noughties when the government was flat out refusing to proscribe some highly problematic Islamic extremist groups, SUs were under some pressure to restrict the activities of those groups even though their activity was (just) within the law. That – and the general relationship with Prevent that all of this raises questions on – will need teasing out.

More generally, achieving compatibility between members of an SU collectively and democratically deciding they want to campaign to outlaw an organisation and having to allow a student society version of it to exist within the SU all at once is going to cause a flashpoint sooner or later.

Oh, fs

The actual regulator stuff is fun. One clause amends HERA so that OfS must have regard to the need to promote the importance of freedom of speech within the law and the need to protect the academic freedom of academic staff at English higher education providers, another says “there will need to be separate conditions of registration”, and another says it has to say what that they mean – a bit like when it gives examples of good and bad behaviour over other aspects of its regulatory framework.

Again what’s new here is that OfS will have to monitor whether students’ unions are complying with those duties, and will be able to impose a monetary penalty on a students’ union if it appears to the OfS that it is failing, or has failed, to comply with its duties. To do all that OfS will have to maintain and publish a list of the students’ unions to which, according to the information held by the OfS, the duties apply. Mercifully it doesn’t look like SUs will have to pay their own registration fee to the regulator.

Jam torts

The shortest section of the bill provides a “person” the right to bring a civil claim against a registered provider or students’ union if the duties as described above are not carried out. This extends beyond the employment rights available to staff, and allows anyone affected (whatever their connection or interaction to the provider or students’ union) to start legal action.

As a measure to put Toby Young’s “Free Speech Union” out of work, it is impeccably designed. What is not clear is how much providers and students’ unions will need to spend in defending themselves against frivolous or vexatious claims. Other routes of complaint require at least some engagement with the stated policies of a provider – it is entirely possible that every complaint may now be a tortious complaint provided a loss of some sort can be identified, with legions of “waambulance”-chasing law firms advertising around campuses.

Another route for complaint will be more familiar to those that have engaged with the Office for the Independent Adjudicator (OIA). Indeed, minus the ability to complain about students’ unions and the role of OfS the approach is identical – any complaint can be referred after internal procedures have been exhausted, though a student must choose between OIA and OfS/free speech routes as it is prohibited to use both for the same issue. The same language of partially and wholly justified complaints is seen and, as with OIA, OfS cannot require anyone to do (or not do) anything – though, confusingly, there is a duty to comply with recommendations.

There’s obviously a lot of scope for student confusion. And OIA is also concerned about the line between regulation and being a good ombuds – with this section in its press comment about as strong as it gets:

As the ombuds service for student complaints about higher education providers, our role is to provide independent and impartial review of unresolved complaints about the bodies in our jurisdiction. That is different from the role of a regulator, and it is important that this distinction is maintained. It will be challenging to make sure that the Free Speech and Academic Freedom Director, whose role includes championing free speech, will also be in a position to fairly and impartially review complaints about freedom of speech.

The famed Director of Free Speech and Academic Freedom has oversight of this complaints scheme, along with the register of students’ unions and monitoring codes of practice. This appointment drops into Schedule 1 of HERA straight after the bits about the Director of Fair Access – the Secretary of State makes the appointments. The addition of this role would mean a larger board – the maximum number (and the current number) of board members currently 15 and this role comes on top of that allocation (there’s a sneaky amendment of HERA Schedule 1 Section 2 (1) (c)).

And the rest

There’s nothing to beat a “minor and consequential amendments” schedule, and Schedule 1 does not disappoint.

• The Secretary of State now has to “have regard to” the academic freedom of academic staff at providers in writing letters of guidance to OfS.
• The Secretary of State also appears to be able to write guidance aimed at students’ unions, which cannot be good news for anyone.
• The existing protections on academic freedom in HERA (for example section 1 (8) (c) are generally removed in favour of these new measures – with the stuff in section 36 (“Duty to protect academic freedom”) now retooled to protect institutional autonomy.
• OfS can seek costs alongside any fine levied against a students’ union. Good luck with that.
• In a rare self-binding moment, grants to OfS from government cannot include measures that restrict academic freedom of academic staff – a new protection of staff rights.
• OfS can and probably will produce regulatory guidance aimed at students’ unions and their compliance with the free speech duty.

But it isn’t just HERA that gets a monstering. The Counter Terrorism and Security Act (CTSA) 2015 also sees a couple of tweaks:

• Reference to university duties on freedom of speech now include references to both the 1986 and proposed new versions.
• For no reason that is clear to us, “students undertaking distance learning courses” no longer count toward the 250 student floor to PREVENT monitoring.

And who is paying for it all?

Well, you are, of course.

More specifically, the funds required by OfS to run these new schemes will come from provider subscriptions – there is no new money from DfE to cover any of the costs of running a complaints system, monitoring codes of practice, or appointing a new director. The notes to the bill are also explicit about the costs that will be incurred by providers and students’ unions in complying with the bill – there’s an estimated -£4.9m annual impact on business.

There’s an impact assessment released the day after the bill, which is a hugely illuminating read.

What’s next?

It’s worth remembering that there’s a long way to go here before this regime is in place. The legislation has to get through Parliament first – the Education Act 1986 (Part Two) emerged from similar political debates and was similarly difficult legislation to draft.

And if the passage of HERA in 2017 reminded us of anything, it’s that anything on higher education tends to be catnip in particular for the Lords – so there’s a moderate danger of other amendments being made to HERA while we’re at it, which is why there’s a facilitation of electoral registration duty in HERA now.

Once that’s done the proposals themselves will have to be operationalised by OfS. That will mean a consultation over changes to its regulatory framework and the institutional behaviour expectations it attaches to each of those conditions. It will therefore be “interesting”, for example, to see if references to bystander training and curriculum decolonisation (things to be clamped down on within this agenda according to the government) will end up in there unscathed, be heavily qualified or killed off altogether.

Even if we accept the logic of the proposals, we do need to think really carefully here about SU capacity to comply – and the ironic chilling effect that may well have on the sorts of activities in scope.

Outside of the big debating clubs of the Russell Group, an understaffed and poorly funded SU is hardly going to look at all of this and say to itself “yeah, let’s dramatically expand the breadth and depth of controversial speakers on campus” – in fact, quite the opposite. And the tiny, titular SUs that exist in FE colleges that provide some HE are surely at risk of deciding that this is just all too much and packing it in altogether.

The expectation stuff here remains quite important. These proposals will do many things, but they absolutely will not clamp down on cancel culture per se. As we noted here, the implication is that the “organised mob” must and will be stopped. And if you can’t find the ringleader of the pile-on, or it turns out that it was all a bit organic, you should still hold the SU President or the head of department or the vice chancellor or Universities UK to account for not doing enough to prevent that mob.

But what if there are no ringleaders? What do you do about anonymous troll accounts? What if someone is banned from doing something by a social media company but not by a university, and vice versa? What if much of the “mass” of messaging comes from those outside of the university, or universities in general? What if this is all a bit analogue and institutional in a digital and distributed world?

In any event, it’s the OfS part where potentially things get very interesting. Politicians can sound off about all sorts of things – actual regulators have to address things (relatively) logically, technically and even-handedly. That explains some of the gap between ministerial rhetoric over its regulator and what’s actually happened since inception.

So the pincer movement – a Conservative peer as Chair of OfS and what will doubtless end up being a heavily politicised appointment into the new Director for Freedom of Speech and Academic Freedom role – can be seen as an effort to try to close that gap. What that could end up meaning – both for the relationship between board members and the relationship between OfS’ board and its senior staff, is anyone’s guess.

But in the end, when you move a highly partisan and often invented culture war off the front pages of the Telegraph and into a legalistic regulation space, what we can pretty much guarantee is that trouble is ahead. A student society is hamfistedly rude to a politician, or a group of random students has a pop at a speaker’s tweets. If OfS intervenes, trouble lies ahead. And if it doesn’t, trouble lies ahead. What a time that will be to be alive.