This is frustrating.
A handful of government sponsored amendments have appeared here at report stage. One is a more sensible version of that proposal that some MPs had a while back on funding from foreign countries – OfS will assess the risks that that might have an impact on free speech. Think of it as the “Confucius Institutes” amendment.
Next they have, as predicted, fixed that academic freedom issue by deleting the bit that restricted freedom to “within their field of expertise”.
There’s also something obscure in there about the overlap between the qualified privilege to defamation claims arising from publication by the OfS of decisions that appeared a few weeks back in the Skills Bill, and the absolute privilege for defamation claims arising from publication of OfS decisions etc under the free speech complaints scheme in this bill that might well be more interesting than I assume it is.
And then there’s this thing on security costs.
The idea in the heads of lawmakers is that to “get around” the current 1986 Education Act duties on freedom of speech, SUs and/or universities cost up the price of providing security at at an event with a controversial speaker and attempt to pass that cost on to the student society that is trying to make the event happen – giggling to themselves that the society can’t afford it and so the event probably won’t go ahead.
Let’s ignore for a minute the preposterous, offensive and pretty much unevidenced suggestion that there’s a bunch of SU activities staff in cahoots with their university registrars to get around their free speech duties in the way suggested.
As ever on Wonkhe we’re prepared to both question the rationale for legislation (there’s a reason why John Major’s government dropped plans to tackle this), and to question whether, if we were to accept the rationale for such legislation, it will work.
This won’t, and in a post that I must warn you is about a pretty niche issue mainly impacting on the student activities departments of students’ unions (although it’s a massive issue for many SUs), I’ll try to explain why.
Cold cold hands
The idea that the dead hand of lefty bureaucracy is being deployed to kill off controversy on campus is an old one that has tended to be built on misunderstandings and anecdotes.
I follow this stuff pretty closely – and just about the only case that comes to mind over the past few years concerns an appearance at the University of Bristol by Israeli ambassador Mark Regev.
The story goes – covered by Jewish news here – that Bristol SU charged £500 to the society that booked him in security costs for the event, while charging nothing to safeguard a similar campus talk “by his Palestinian counterpart”.
You can see the point in principle, and see that the comparison is problematic from an equity point of view.
Of course the reality of the situation is complex. At the behest of government in the early part of the last decade, partly to get away from the “blunt tool” of having to have a vote on antisemites and fascists and partly as a way to address counter terrorism concerns, almost every SU in the country now attempts to objectively risk assess the external speakers that its societies want to book for events and talks.
Sometimes , when a booking involves someone high profile, that assessment includes a recommendation that security needs to be booked – it’s a way of actually ensuring that the event goes ahead, rather than trying to stop it from happening. In this case the reality is that the Mark Regev event needed £500 worth of security, and the Dr Husam Zomlot (Palestinian representative in the UK) event didn’t. It obviously wouldn’t have been fair to stick a £500 charge onto the PalSoc (or whoever booked Zomlot) just to make things “fair”.
The problem is that security almost always comes with a cost. Students’ unions are not endless pits of money, and very few SU societies’ central budgets would be able to cope with multiple £500 charges. Not only is the funding not really able to stretch in that way, even if it was able, you’d get other societies complaining that the “free speech socs” and “debating socs” that tend to book the big, edgy names were eating up budget that they could be using on building social capital or peer assisted tutoring schemes or whatever.
So in most SUs, the deal is that a society gets its budget allocation – which it can top up with membership fees and fundraising – and then the costs of an event fall to the society.
Time to crack down
Anyway, with Education Select Committee Chair Robert Halfon regularly raising the Regev controversy, the idea that legislation ought to tackle this phenomenon appeared in the original blueprint for the legislation – a Policy Exchange report called “Academic freedom in the UK” published back in 2020:
It should address in more detail what ‘reasonably practicable’ steps entail, in fulfilling the Section 43 duty of free speech. In particular, current EHRC guidance does not address the level of security costs that an HEP can be reasonably expected to incur, in order to ensure that an event should take place.”
The issue also appears in the command paper that was published shortly before we saw the bill:
The strengthened duty could also include specific reference to related issues in securing freedom of speech such as a transparent and fair approach to charging for security costs at events.
The actual issue didn’t appear on the face of the bill – like a whole raft of others, the government has tended to argue that kind of detail could be saved for the guidance that the Office for Students will eventually have to publish fleshing out the duties on SUs and universities.
But now here at report stage, an amendment has appeared that underlines a lot of what’s wrong with the bill in practice, even if you agree with it in principle.
Amendment 3 introduces this new paragraph:
…the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”
The notes say that the amendment would place a new duty on governing bodies of registered higher education providers to ensure that the use of premises is not conditional on requiring the person wishing to use them to bear the costs of security – unless there are exceptional circumstances.
But there’s then another amendment. Remember, this bill also applies directly to students’ unions:
a students’ union for students at a registered higher education provider that is eligible for financial support must secure that, apart from in exceptional circumstances, use by any individual or body of premises occupied by the students’ union is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”
The note this time says that this amendment would place the new duty on certain students’ unions to secure freedom of speech for certain persons by requiring the students’ unions to secure that use of premises is not conditional on requiring the person wishing to use them to bear the costs of security – again, unless there are exceptional circumstances.
You can see what they’ve done here. They are legislating to regulate both universities and their SUs, so they’ve copied out the duty as it will apply to universities and then switched some words. But it won’t work.
Back here in the real world
Let’s ignore the ongoing issue that the wording appears to accidentally pick up students’ unions in a whole bunch of tiny SUs in the long tail of the OfS register – an issue we’ve talked about previously.
Where an SU books a room in a university, they’re not occupying the premises. So if Darts Soc books Michael van Gerwen for a talk in Lecture Theatre 180, does that mean the duty is on the university, or the SU, or neither? And if someone says he can’t come, who is the complaint about?
In the majority of SUs, the societies and clubs are not actually legally distinct from the SU itself. It’s an internal recharge. Does the legislation mean that the SU isn’t allowed to impose an internal recharge upon itself?
If an SU wants a talk to go ahead but is worried about cost, but a university uses its double tick on a room booking, refuses financial assistance and makes demands about things that the union can’t afford – who does the society complain to? The SU? The university? The OIA? OfS? The Sunday Telegraph?
And of course, the SU has a limited budget. I’m not saying that £500 is an insignificant cost for a university – but it really is a different order of importance if a university is hit with a £500 charge rather than an SU. Why on earth would the duty be placed on SUs directly?
Because if the duty isn’t placed on the university – I know what I’d do as an SU. I’d get legal advice on preventing all external speaker events to limit my financial liability, and if not I’d do everything I could to frustrate and slow down speaker booking requests.
I certainly wouldn’t be encouraging my societies to book interesting people, and I certainly wouldn’t be proactively inviting controversial people to come and speak on campus – not if doing so meant I’d need to close the SU advice centre or shut down support for course reps.
For crying out loud
What’s so frustrating about all of this is that there is a sensible solution.
Back in January 2021 you might recall that we published the fruits of working with a large group of SUs on free speech, and even though this “security costs” issue wasn’t highlighted as a biggie, we addressed it on the basis that government was concerned.
At the time we recommended:
Establish that in principle no event should be cancelled due to a society or SU not feeling able to meet security costs.
And we said:
Recognised students’ unions should either be resourced appropriately in grant funding to meet reasonable security costs for external speaker events incurred following a risk assessment, or that the union will not be expected to fund reasonable costs directly and that reasonable costs will instead be funded directly by universities.”
We even explained it to the bill team working on the legislation.
During the last chunk of debate on the bill, the government repeatedly rejected perfectly sensible amendments that proposed that SUs be funded to undertake the duties being placed on them. So that leaves the idea that reasonable security costs should instead be funded directly by universities.
Under the approach suggested by SUs, as currently happens when SUs and universities work together on a whole range of issues (including those that concern counter-terrorism), sensible discussions would be held that would place the principle duty for hosting people as high profile as an Israeli ambassador on the body with the £500m budget rather than the body with the £1m budget.
In other words – as currently happens on a range of issues via the Education Act 1994 – we would regulate SUs through universities, with one set of duties and one regulatory process. That is exactly what the government is going to allow to happen via amendments that will see Oxbridge MCRs and JCRs regulated through their colleges rather than directly, it’s what should happen to Bobbleton College of FE SU, and it’s what should happen for large SUs in universities.
I’m assuming the government doesn’t want to be seen to be backing off “directly regulating students’ unions”, but in doing so is proposing legalisation that won’t work and will have a chilling effect on the booking of controversial speakers, as my eyes roll gently into the further reaches of the rear of my head.
The truth about SUs is that they resemble 17 year olds living at home. They’re usually pretty autonomous, we want them to be grown up, they can be sometimes boisterous, but they mostly couldn’t survive without money from their parents. They can come and go as they please but when they’re living in this house they live under these rules. That’s essentially the current legal settlement in the Education Act 1994 – the union is autonomous but its parent university has to cause it to abide by certain rules.
And if your 17 year old wants to invite the Israeli ambassador round for tea, of course we need the parents to take an interest and make the visit safe, working in partnership with the 17 old rather than a) dumping the arrangements on them because it’s “their legal duty”, or b) taking over and treating them like they’re 7 instead of 17.
That some universities have pretended over the years that they are powerless over their SU – and that some registrars have in the past dreamed of OfS or the Charity Commission having an uncomfortable conversation to save them having to do it – is hardly the point. The government should now do the sensible thing – simplify the legislation, regulate SUs through their universities, and let everyone get on with delivering a great student experience.