The Free Speech Bill is back – but there’s still plenty of problems

There's a fresh impact assessment for the new season of debate on the free speech bill. Jim Dickinson tracks the changes

If you ask the family Dickinson, you’ll discover that I’ve never been good at remembering birthdays.

So thank heavens for Jack Ballingham, the Opportunities Officer at Durham SU, who’s been taking a real interest in the Higher Education (Freedom of Speech) Bill.

He reminded me earlier that tomorrow is the one year anniversary of its emergence as an actual Bill, and to mark the occasion it appears that the Department for Education has updated the impact assessment to accompany the now carried-over Bill.

You might remember that last year the Regulatory Policy Committee (RPC), an independent body sponsored by the Department for Business, Energy and Industrial Strategy (BEIS), took a look at the last version and marked it – giving it three “weaks” and a “satisfactory”

Its job is to assess the quality of evidence and analysis used to inform regulatory proposals affecting the economy, businesses, civil society, charities and other non-government organisations. Its work helps ensure that ministerial policy decisions are based on accurate evidence, and helps to produce better regulation.

So has the department responded to the criticism in the RPC’s report, and are there any clues as to any government amendments that might appear when we finally get to report stage in the commons?

Spot the difference

In terms of actual changes, there’s very little in here. On a very basic level, someone’s done a grammar check, and the figures on financial impact have been adjusted to reflect the number of providers on the register and assumptions about how many will join.

And the revised document repeatedly now mentions the duty on higher education providers “and their constituent institutions”, reflecting one of the few government amendments we saw last year to address that the original draft had forgotten all about Oxbridge colleges.

On that, we do seem to have some confusion about Jack’s institution. In one section the assessment now says that there is a gap in the current Education Act 1986 duty insofar as “the duty does not currently apply directly constituent institutions of HEPs that may be largely independent of their parent institution, e.g. colleges of the Universities of Oxford, Cambridge and Durham.”

I’m now not sure having read that as to whether the government thinks Durham’s colleges are independent SUs and so subject to the SUs duties, a component part of the university that will fall under the university’s own duties, or confederated components that will bear their own duties. We do need to know – South College will certainly need to know if its principal is thinking about inviting Rod Liddle over for the Christmas do again.

Later there’s an even more baffling section – see if you can get your head around this:

We understand that constituent colleges at the University of Oxford, the University of Cambridge and some at Durham University have a level of control over their affairs which is deemed to give them sufficient independence from their parent university in matters relating to freedom of speech, i.e. it may not be reasonably practicable for the parent HEP to have control over a range of college level decisions. Some other universities, such as Lancaster University, may use the term “college” to represent elements of their university such as halls of residence – but these are likely to have a lower level of autonomy than colleges at the three aforementioned universities, i.e. it is more likely that it would be reasonable for the parent HEP to take steps to protect freedom of speech across its colleges.

This appears to portend an amendment that could say “where there’s a constituent college or an SU that you are confident you could exercise control over, then the duty will be on you, and if not the duty will be on the constituent college or the SU”. If that’s the case that would make oodles of sense – it’s certainly the case that Durham colleges are currently assumed to be under the control of the university on free speech issues, and most SUs can be overruled on speaker issues because of Prevent. If nothing else, if an amendment can address the nonsense of most FEIs on the OfS register having to have their tiddly SU be directly subject to the duties then we’ll have reached a sensible place.

Wringing the changes

It’s not all about Durham and Oxbridge. A new section tells us that when it comes to the souped up duty on providers, “enforcement and sanctions” will ensure “providers take their duties more seriously, there would be a conscious process of ensuring policies and procedures are current and effective, and this would all contribute to a cultural change to counter the chilling effect”. We still don’t know why “enforcement and sanctions” haven’t been happening in relation to the existing Education Act 1986/OfS public interest governance principle duties, but hey ho.

You might recall that “areas of expertise” was a thing in the Bill – the idea was that the legislation would widen and enhance academic freedom protections, extending protections so that recruitment and promotion are also covered but also making clear that it (only) covers speech “within an academic’s field of expertise”, leading to all sorts of obvious questions about the extent to which an academic might have a pop at management or whether a STEM academic might be allowed to rail against Brexit.

Interestingly, the sub clause “and making clear that it covers speech within an academic’s field of expertise” is now deleted from the new impact assessment. That doesn’t necessarily mean an amendment is coming that deletes that qualification, but it might do.

One of the things that is utterly baffling is that the impact assessment says that “constituent institutions” will need to create new codes of practice (or update existing ones if they already have them). Oxbridge colleges aren’t on the OfS register – the assumption is they’re covered by the central university’s registration with OfS.

But if this legislation feels the need to specifically reference colleges as being subject to an OfS duty, what about all the other OfS duties? Whenever I ask about this sort of stuff, OfS says “we don’t comment on the regulation of individual providers”, and I doubt an OfS crackdown on spelling or grade inflation will trouble either of them, but it’s going to really matter if and when (for example) the OfS statement of expectations on Harassment and Sexual Misconduct becomes an actual bit of OfS regulation, an issue I’ve talked about on the site before.

Beleague tables

Another new bit is that a “Post implementation review (PIR)” will be carried out to assess if the objectives of the regulation have been achieved and if they could be achieved in a less burdensome way (!):

As the purpose of the policy intervention is to ensure that staff, students, members of the HEP and visiting speakers should feel safe to discuss issues, and academic staff should be able to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions, without the risk of losing their jobs, privileges or promotion, one of the key indicators of whether this objective has been met will be that the levels of self-censorship that are currently reported are reduced.

That’s right – the government will carry out qualitative research to assess the levels of self-censorship amongst students to establish whether the problem has been reduced. A separate survey of academics within HEPs will be carried out to understand the impact of the legislation on their willingness to put forward new ideas and controversial or unpopular opinions without fear of detrimental treatment in terms of recruitment and promotion, in addition to dismissal. Let’s hope it picks up some of the deep methodological flaws that have bedevilled previous exercises of this sort.

We’re also told that the research will cover the impact of the complaints scheme and its effectiveness in providing redress, not something that’s ever been done on the main HE complaints scheme but arguably now really does need to be.

Samba de Janeiro

When the RPC issued its report last year, it did have a few stinging criticisms. For example it said that the SAMBA (“Small and micro business assessment”) should be improved by considering whether small and micro businesses (SMBs) face higher costs and how any disproportionate burdens could be mitigated. The new version does that for small and specialist providers, but somehow STILL manages to ignore SUs – in small providers if they exist at all they’re are micro de la micro. Are the Bill team not reading Wonkhe? How rude!

Meanwhile the RPC said the department could present concrete and well-founded examples of the “chilling effect” and the consequences in those circumstances. Yet despite a golden opportunity to explain how the Bill would have seen cases like Kathleen Stock at Sussex, or Raquel Rosario Sanchez at Bristol, or Robinson Crusoe and Black Beauty at Leeds turn out differently, no new material is provided. Why might that be?

The RPC also said that the assessment could consider any potential negative impacts on individuals and the academic and social environment of HEPs and SUs:

For example, the IA does not consider unintended consequences on those that may be affected by the “hateful” or “unpopular” views. The IA could also consider whether one group’s expression may curtail another group’s ability to express a contrary view or directly infringe rights protected under existing regulation.

All we get on that is the following derisory bit of text:

Consideration has been given to whether the measures in the Bill could have deleterious impacts on those with protected characteristics, and to whether there may be consequences for those who could be affected by lawful views freely expressed. Nothing in the Bill affects the balance of what is and is not lawful free speech, and HEPs will still need to balance their freedom of speech duties with their existing legal duties under the Equality Act 2010, the Prevent duty and the Public Sector Equality Duty

It’s almost as if Michelle Donelan still can’t explain how holocaust denial – which isn’t illegal in the UK – can somehow still be banned on campus. And so on.

This matters. As I’ve said before, in most of the on campus free speech cases you have an EDI complaint at one end of the see-saw, and a Free Speech justification at the other – which in turn implies an OIA complaint in the former, and a “Free Speech OfS Tsar” complaint at the other. The original impact assessment laughably said:

Students/staff may be unsure when to go to the OfS complaints scheme and when to go the OIA or an employment tribunal. However, the Government will work with HEPs, the OIA and the OfS to ensure that this process is clearly signposted.”

It hasn’t been updated for the new season – because in truth there’s still no real answer to the puzzle.

Finally, the RPC did say that the IA should:

discuss how the proposal interacts with other government policies and proposals such as those relating to online harms”.

It still doesn’t.

3 responses to “The Free Speech Bill is back – but there’s still plenty of problems

  1. One of my favourite thought experiments is to image what would happen if Oxbridge colleges each had to register with OfS! The APP stuff alone would be a complete nightmare

  2. When the government says ‘unpopular opinions’ what it really means is ‘admitting you support the government’. HE has always been predominantly left-wing and the government doesn’t like the idea of up to 50% of young people being forvever turned off from conservative ideals because of their time on campus.

    This bill is an utter farce, another totalitarian attempt to control everything said about the government so it can avoid scrutiny. It goes hand in hand with its propaganda press and worse is it flies in the face of actual conservatism or did I imagine the part where the conservatives were supposed to mind their own business and not dictate what can and cannot be said via a phony culture war?

  3. “I’m now not sure having read that as to whether the government thinks Durham’s colleges are independent SUs and so subject to the SUs duties, a component part of the university that will fall under the university’s own duties, or confederated components that will bear their own duties.”

    The answer is likely “all three, have fun”. Durham’s colleges and the SUs formed by their members are not all the same in legal terms.
    – two of the colleges are independent affiliated institutions (similar to an Oxbridge one) and are therefore responsible one way or another for regulating their local SU
    – all the remaining colleges are departments of the university fully under its control, but …
    — in some of those colleges the SU is a standard charitable organisation in the conventional way
    — and in some of them, because charities law is a lot of effort to comply with when you have a small number of members, no permanent staff, and not much budget, the SU is technically also a non-independent department of the university (run, insofar as possible, as if it were a conventional SU, and allowed considerable practical autonomy)
    — and in some of them there are in fact two “departments disguised as SUs” because there’s a separate one for postgraduates

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