The Lords have been discussing students’ unions. It didn’t go well

Jim is an Associate Editor at Wonkhe

The Higher Education (Freedom of Speech) Bill is currently at committee stage in the House of Lords, enjoying line by line scrutiny, and the second session in Grand Committee saw the first real discussion by Lords on students’ unions.

If nothing else, it suggested that if anyone in any of the national bodies has attempted to brief Lords on the impact of the legislation on SUs, that attempt has not worked – even on the opposition team.

I should stress at the outset that it is not too late for SUs to raise concerns with Lords about the Bill. The Lords register of interests can be found here, which should allow you to identify if there are Lords that have a link to your university.

Balancing act

One thing to note in general is that throughout the two sessions held so far, whenever anyone has raised concerns about the dangers of unfettered free speech the need to protect students from harm or discrimination, ministers have tended to refer to “balancing duties” – the idea that under the legislation providers and SUs would only be required to take “reasonably practicable steps” to secure or promote free speech within the law, and as siuch would still have to take other duties into account.

The problem is that several members of the Lords and crucially the government have been referring to the balancing impact of “reasonably practicable steps” without making clear that students’ unions are not public authorities – and so are not subject to the Human Rights Act or the Equality Act’s public sector equality duty in the same way. SUs will be concerned that that would mean they would be unable to take steps to protect their members from discrimination or harm.

Another issue is that throughout the debates, there has been repeated and almost exclusive reference to “universities” throughout. But because the legislation would apply to “approved, fee cap” higher education providers, most are not actually universities but often tiny specialist providers, or further education providers with a handful of higher education students.

A discussion on SUs

Amendment 47, proposed by Baroness Garden and Lord Wallace, proposed to change the way that SUs would be regulated under the legislation – instead of being directly regulated by the Office for Students (OfS), they would be regulated instead through their university – which is how the rest of specific regulation of SUs works in the Education Act 1994.

A debate then ensued on SUs and how the regulation might work. Anyone that works in a specific sector that is the subject of legislation is bound to become frustrated when politicians discuss their line of work – but in the case of universities, SUs and student life there is a particular problem that had been explained earlier the evening by Lords Collins:

My tendency is to look at my own personal experience at university—many, many years ago.”

Baroness Garden opened the discussion sensibly enough by pointing out that the provisions in this Bill could involve SUs in costly, time-consuming administration and litigation.

But then things got more and more… surreal.

Lord Triesman opened his contribution by reflecting on the purpose of a university, but then got onto thinking about the potential practical impact of the Bill on event planning:

The notion that each institution has one student union is flawed. Of course they have student unions, but they also have a wide number of other clubs and societies which are part of that student union. In some universities, when you join the student union you are automatically enrolled in all the others as well, to give you freedom to get around and do all sorts of interesting things. I began to ponder who these people are who would engage in expert planning, particularly if it is sensitive and controversial. I want to share the extent of the issue that this provision would need to grapple with.

He went on to calculate that there may be up to 67,000 student societies in England who may all struggle to meet the requirements proposed in the act.

Next, Baroness Fox argued that “student unions need to be subject to this obligation to secure free speech” (without perhaps realising that the amendment she was speaking on did not propose to remove that obligation) on the basis that “student unions have become the power brokers” of free speech.

In the speech we got some of the usual bugbears from Spiked! writers – an anecdote concerning a supposed SU “student stasi” and a complaint that those running a society “would have to attend risk assessment training” and that they “could not invite any speakers on to campus without first having to submit a list of prospective speakers to the student union three weeks ahead of time for full and final approval”.

This, as we know, is pretty much necessary and standard practice in any university/SU for all sorts of reasons, not least Charity Law – but her point was left unchallenged.

Fox also recounted an anecdote about the Union of Clare Students, which is the SU for students at Clare College, Cambridge, apparently without realising that the government took steps back in the commons to exempt the SUs of Oxford and Cambridge colleges on the basis that the colleges already supervised them. More on that below.

Lord Smith was more helpful, noting that the amendment would place the duty of free speech on SUs “but in a slightly less prescriptive form”, and asking ministers to “go away and think” about whether things could be done in a better way than appears at the moment in the Bill, bearing in mind that “we accept that there should be a purpose of free speech embedded in what student unions are all about”.

Baroness Thornton was next up, arguing that the Bill as drafted would not meet the test of “what will actually work” and the duties “not be able to be delivered by our student bodies” because it is too complex. “My understanding is that student unions also have the Charity Commissioners as part of their regulation”, she added, “so that adds extra complexity to this issue.” She also asked if discussions had taken place with SU representatives to ask how the duty will work and whether it will be able to be carried through – and we know the answer to that.

The Severn bridge

Responding for the government, Earl Howe first argued that there were “examples of where SU have failed to secure freedom of speech”, citing a case where the SU had “failed to support members of the university’s Feminist Society, who were threatened and abused for supporting Kathleen Stock”.

In an evening of frustration listening to the debate, for me a low point was listening to the Government justify the need for a Bill that will only cover England by telling a story about something that happened at Swansea that wouldn’t have been prevented by the proposed legislation.

Next he argued that if the Amendment passed, then “there would be no requirement on student unions to comply with those requirements”, and if they did not comply, “this would potentially only result in an internal dispute with the provider”.

This is of course nonsense. The requirements in the Education Act 1994 may be secured through the university, but they nevertheless apply to SUs. Howe was deliberately confusing the duty with who would regulatory compliance with it. “There would be no enforcement or regulatory action taken if they failed to do so” will come as a surprise to any SU that’s ever had a grant cut or been threatened with being removed from their offices.

He also argued that there would be “no means for individuals whose freedom of speech has been improperly restricted to seek recompense”, but that’s not true either – a student would be able to complain to the university that it had not ensured that the duties on the SU in the Education Act had secured by the university, which is what students can and do do now with other duties in the Education Act.

I should add that where a student is on a year abroad, on a placement, or being taught by another provider under a franchise arrangement, the free speech duty in those settings will be carried out through the provider rather than (for example) each NHS trust having to develop a code of practice just because some nursing students are on placement there. That is the same principle being proposed here.

There was an extraordinary moment when Baroness Thornton interrupted to argue that what some sports clubs do is often outside of the direct control of SUs, with Lord Triesman adding that “most student unions find out what their rugby clubs have done months after the event, if they find out at all”. Howe chuckled and said that he would “hope that a rugby club would not be responsible for inviting somebody to talk about gender politics”, only for Lord Collins to point out that:

…the Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.”

Concluding that the Bill places “clear, direct duties” on SUs and gives OfS a mechanism to regulate and enforce them, Earl Howe hoped that Lords would agree that the Bill “as currently drafted represents the best way of regulating student unions as regards freedom of speech”.

Baroness Garden then argued that while there were “more issues that we might need to bring back” at report stage, she would in the meantime withdraw her amendment.

What’s clear from the strange and chaotic debate is that the government hasn’t really thought through at all how the new law might work.

Big problems ahead

The providers that are captured by the Bill are those eligible for funding – and as such the assumption is that the duties on those providers are capable of being exercised within that funding. However the funding and resultant capacity and capability of an SU to undertake these duties is usually wholly dependent on a negotiation between the SU and the provider. Without a duty on the provider to resource the SU appropriately to carry out the duty there is a material risk that they will be unable to. Vexatious complaints surrounding, for example, SU elections may not succeed – but would cause an SU to need to seek costly legal advice which it may not be funded to obtain.

The legal definition of a students’ union is set out in the Education Act 1994 Part 2, and is deliberately quite broad – one of the types of body captured is any representative body (whether an “association” or not) whose principal purposes include representing the generality of students at an establishment to which Part 2 applies in academic, disciplinary or other matters relating to the government of the establishment. In many of the providers captured by the regulation, what will technically “count” as a students’ union may be a small committee of student reps, may not be functioning at various points in the academic year and is unlikely to be meaningfully capable of compliance.

Practically, university codes of practice established under the Education Act 1986 and associated regulations and practices tend to integrate SU and university approvals and support for external speakers and freedom of speech matters on a day to day basis – partly so universities can discharge their duties under the Counter-Terrorism and Security Act 2015. The risk is that complainants using either the proposed ombuds arrangements or the legal tort are confused as to which body they could or should be complaining about – the SU or the university.

The Bill expects that SUs will, in enforcing the Code of Practice issued on free speech, use their own disciplinary procedures. Another concern then is that disciplinary arrangements for members of SUs are frequently integrated with those of their university. For example many SUs might remove a student from membership for a minor offence in an SU bar, but would pass a complaint of harassment in an SU context or a serious offence at an SU event to their university. As such again complainants using either the proposed ombuds arrangements or the legal tort are likely to be confused as to which body they could or should be complaining about – the SU or the university. I’ve discussed more on this over on the main site on Wonk Corner.

Further, a student wanting to resolve a free speech issue is likely to find it easier, quicker and more effective to complain to the university about the SU rather than have to complain directly to the Office for Students!

And of course it is the case that as drafted, every higher education provider would have to issue at least two codes of practice on free speech – one from the provider, and one from each SU (because several universities recognise multiple SUs). That is likely to be very confusing for students.

Is there another way?

As such suggested in Amendment 47 was a straightforward alternative that would have reduced costs and improved clarity. Students’ unions already have a range of duties under the Education Act 1994 (Section 22) and their provider has to issue a Code of Practice detailing how they are met. These duties could straightforwardly include the freedom of speech duties.

As is currently the case for other matters covered by the Education Act 1994, the governing body of every provider would be required to take such steps as are reasonably practicable to secure that any students’ union for students at the provider meets the requirements, and the Office for Students would regulate higher education providers as it does now, making use of relevant conditions of registration relating to management and governance and freedom of speech to ensure that the provider is doing this properly.

The government was wrong to suggest that Amendment 47 would mean that the duties would somehow not apply to students’ unions. The point is that they would, but through the higher education provider in a simpler and more integrated way.

Students’ unions would be regulated specifically on this issue for the first time, but for simplicity the regulation would be through the provider that is registered with OfS, rather than via OfS directly regulating the SUs. Anyone wanting to make use of the legal tort or ombuds arrangements would complain about the university which in and of itself could then take action, including funding reductions or fines, on the SU.

If there is any doubt as to whether such arrangements would work or be practical, it should be noted that following government amendments in the commons, this is precisely the way in which Oxbridge MCRs and JCRs are to be regulated under the Bill. As Michelle Donelan said during Committee stage:

Colleges fund their junior and middle common rooms and, to that extent, can exert a lot of control over their activities. Those groups do not own or occupy their own premises or run the booking the systems, so imposing a freedom of speech duty on them seems to be unnecessary and overly bureaucratic. We do not believe that including them in the provision is necessary, as the freedom of speech duties on the colleges will apply to the activities of their student unions.

Since a bill introduces new routes of redress for individuals who believe that their local freedom of speech or academic freedom has been improperly restricted, it is vital that the right institutions are held responsible. Colleges do fund their junior and middle room and middle common rooms. And to that extent, they can exert a lot of control over their activities, as these groups do not own or occupy their own premises, or run the room booking systems. And so imposing these freedom of speech duties on does seem quite unnecessary and overly bureaucratic.”

Specifically it is clear that not a single SU in the country could survive without financial support of their university – and as such ministers may have underestimated the extent to which universities are able to exercise control over their SU in extremis. That is why harmonising the regulation of SUs on freedom of speech with other regulatory requirements in the Education Act 1994 (legislation widely believed to have been effective in regulating SUs sensibly) would work.

As such Amendment 47 (or a version of it) would have retained all of the intended provisions for, duties on and regulation of students’ unions in principle – but instead of regulating students’ unions directly through the Office for Students, would have adopted the approach taken to all other matters relating to students unions’ (in the Education Act 1994) – which is to regulate them through the university’s governing body. In doing so small and specialist SUs would also be able to operate without the unrealistic burden of direct regulation.

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