Should SUs and universities agree joint codes on free speech?

Jim is an Associate Editor at Wonkhe

You know how this usually goes.

Students’ unions become subject to some new legal duty. There’s then a need for a new policy to manifest itself via your trustee board, your union council or both.

Maybe another union has written one that you can tweak, or maybe NUS has published a model policy that it’s got some advice on. Either way you change the title, add in a couple of local quirks and off you go.

That’s broadly what we thought would need to happen with the Free Speech Bill. It’s been obvious for a long time – long before the Bill itself emerged in England, in fact – that SUs would need to publish a new Code of Practice on free speech.

We even published a model Code in the work that we carried out on the issue back in January 2021, suggesting that SUs pre-emptively adopt widely used principles within the free speech policy statement produced by the Committee on Freedom of Expression at the University of Chicago.

But as the Bill has developed, the more I’ve thought about it and the more I’ve discussed with officers and managers in SUs, the more it’s started to become clear that the SU doing as the Bill says – publishing its own Code of Practice on free speech setting out values, procedures to be followed and so on – is a terrible idea.

Let me explain.

Staying positive

Picture the scene. It’s Freshers in September 2023, where a new student is sat in a talk being given by the university about its new “positive duty” to promote free speech on campus.

Part of the talk involves the university describing its Code of Practice on free speech and academic freedom, including the university’s definitions and values, how to raise a concern or complaint, the limits of free speech re equality, diversity and harassment, and how the university will implement its duty to secure compliance with the code via disciplinary procedures.

Now imagine that you’re next on the agenda, popping up to talk through the union’s own and separate Code.

If you’re a student, that will almost certainly make no sense. When does Policy A apply? When does Policy B apply? If I’m in an SU office which one do I pick? If a student’s academic society organises a debate, which definitions are in use? Do either apply if I’;m off campus? Who do I complain to? And so on.

Add in the universities with Graduate Students’ Associations or collegiate structures, and you have instant chaos. It’s just not viable to be rocking multiple definitions, sets of values, procedures, complaints and disciplinary routes.

Two ticks

Then consider that when it comes to room bookings and speaker events – and having to delicately balance the Equality Act, the Prevent duty, the general duty to risk assess and now new things like the Worker Protection (Amendment of Equality Act 2010) Act, the practical reality in most SUs is that the university has a tick.

Or more accurately, a veto over your decisions.

That veto might be official and it might be deployed via quiet call to the CEO, but either way, because the reputational issues flow back to the university anyway, it tends to be the case that whatever you’re decided, if you’re on campus you can overruled.

Once that’s the case, you might well ask why it is that under the legislation if the SU made a decision that someone didn’t like, they could complain to the Office for Students and/or sue the SU using the new legal tort.

The SU might in the end be able to argue that it was overruled – but it would be nice to avoid the legal hassle in the first place, wouldn’t it.

And when students complain that you’ve (had to) let an event go ahead, it would be great if that finely balanced legal judgement was one you could argue that wasn’t really in the SU’s control.

Name’s not down

Then there’s the issue of security costs. As we covered here, a new duty to not pass on the costs of security for a speaker booking might be fine in the context of the university’s budgets, but in the context of an SU’s budget, could be very onerous.

Crucially, when something goes wrong or a letter rolls in from the Free Speech Union, universities might want to be able to point at the SU and say “not us, Toby”. But it would be nice if the university had to take responsibility for the reasoned and nuanced decisions you’ve almost certainly agonised over, and got into your corner rather than the press office saying “well they’re independent”.

That’s all why the more I think about it, as long as it’s permitted by OfS as the new regulator, the clearer it is that the SU and the university and the SU should issue a joining Code of Practice on free speech and academic freedom.

It would have to be genuinely joint – with both sides having theoretical veto or voting power over decisions in extremis – and you’d need to be able to pull out or change your mind or suggest revisions.

But it would send a powerful signal, remove much of the legal and complaint risk from the SU, signal a proper partnership with students, mean the university is forced into your corner when a row breaks out, simplify things for students and give the SU much more influence over the university’s decision making in this space.

Eurgh no thanks

Not all unions would be comfortable with the approach. Plenty of SUs might reason that their approach to balancing “freedom from harm or harassment” EDI issues with free speech issues would differ from their university’s.

But that might not actually be true in practice – and this approach would give the SU much more agency over the university’s decision making and power.

So on the assumption that OfS allows this kind of approach, it’s worth getting discussion going now on what a new joint Code might look like.

But when it comes to enforcing it, that moves us to another issue.

One of the responsibilities under the legislation will be to enforce disciplinary procedures on students to ensure they comply with the code.

That generates a direct relationship with conduct procedures that relate to the Equality Act 2010. And if you have a joint Free Speech Code, for those unions still doing so, it suddenly makes little sense for an SU to operating its own disciplinary code too.

We set out many of the difficulties with “two procedures” in this project (which we’re still working on pending work from OfS on its statement of expectations).

But a general expectation that beyond what happens with sabbs and staff and/or the rules of procedure for a council meeting, the idea that an SU has the resources to meet the coming standards on prevention and processing of allegations of harassment under the Equality Act 2010 is probably for the birds.

Again, an SU might have argued that in the past its own definitions and approach to harassment and EDI were more progressive and effective than the university. But a formal joint approach – relieving the SU of having to investigate or process complaints involving students’ conduct – could give the SU more influence over what happens “over the road” (including its resourcing), free up resources locally to focus on prevention, and give students confidence that a proper process is in play when someone is accused of something.

This will take careful negotiation and SUs would be wise to begin discussions now. But from here, this looks like an opportunity for SUs to reduce risks, reduce hassle, and have more influence over vital decisions that universities make when they balance freedom from harm with freedom to speak. Why not?

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