Good news gang! I’ve invited myself to do a talk at Oxford next week on the history of Estonian entries to the Eurovision.

Now I’ve been invited, not only can you not stop me, but the university and the government will swing in to help if you try! And they’ll have to stump up the cash for the sound system and the security, like it or not.

Ah, the “cancellation” of Amber Rudd. Depending on which side of the argument you choose, this latest slice of campus chaos and counterclaim is either a helpful crackdown on snowflake students hellbent on destroying debate, or in and of itself a sinister threat of silencing of students by grown-ups intent on attacking the rights of students to invite and disinvite who they please to their extra-curricular meetings.

It’s actually a bit disingenuous to say there’s two sides, mind. There’s a third, centrist-dad Principal Skinner position that thinks that we saw a “No Platforming” of Amber Rudd, and thinks that such tactics should be reserved for fascists – the origin of the tactic in the 70s:

Oh David. Let’s not worry that this was not, in fact, a policy passed by a body seeking to remove Rudd from debates. Let’s also not worry that Rudd doesn’t exactly appear to have have been silenced. Ignore all that – after all, you have your column in the press to promote.

As ever with university free speech stories, the actual facts tend to be ignored or at best distorted in the media. So let’s have a look at what we know.

I for one am appalled

The whole thing emerged late on on Thursday night when the Mail reported that former Home Secretary Amber Rudd had “told of her disgust” at being “blatantly snubbed” by Oxford University students night over her links to the Windrush scandal.

Posing for a picture with Rudd just hours earlier in an empty lecture theatre, Felicity Graham – the President of an Oxford student society supporting the work of UN Women UK – revealed that her society’s 13-strong committee had approved sending an invitation to Rudd in January, but had come under “intense pressure” on Monday from students who said the event should be scrapped because of Rudd’s links to Windrush.

In the piece, she told the Mail she was “adamant” the event should go ahead, but received a call 30 minutes before the event was due to start from the committee which said they “no longer supported” the invitation. The society posted on Facebook on Thursday night that “following a majority vote in committee, tonight’s event with speaker Amber Rudd has been cancelled”, adding it was “deeply sorry for all and any hurt caused” over the event.

Own goal

It’s hard to find anyone that thinks that cancelling a speaker 30 minutes before they are due to appear is an especially smart move – but you’d expect Felicity Graham to defend her own committee and take the hit. Instead she was keen to apportion blame to the organised expression of afro-caribbean students on campus. “It was ultimately my decision but every single person on the committee was against and I was given no choice”, she said, adding “I think she was a great feminist to be platforming and because she has worked on UN campaigns, it seemed right. It was the Oxford African and Caribbean Society – who hold a lot of power – who really applied the pressure and forced us to cancel.”

The Guardian wasn’t so sure. It bothered to seek out on Twitter the view of Oxford’s African Caribbean Society (ACS), who it turns out it didn’t call for the cancellation of the event at all. In fact it said that “individuals who are members of our society expressed public disapproval, but did so as individuals. Oxford ACS never planned or even discussed boycotting the event … In no way did Oxford ACS ‘force this to happen.’”

Remember, Rudd wasn’t due to deliver any teaching, she’s not a practising academic, she wasn’t booked to do a debate and she’s not been banned by the university, Oxford’s SU or even the society. What actually seems to have happened here is a row between some students about whether Amber Rudd should be held up as an inspirational feminist by a student society.

Either way, by 8am on Friday morning the row was in full swing when Amber Rudd tweeted:

Comments from Jacob-Rees Mogg followed, warning Oxford that it “ought to lead the way” in defending the “bedrock of democracy … rather than being snowflake central”. Twitter, as usual, went into meltdown with both sides repeating the usual arguments. Toby Young’s Free Speech Union predictably appeared from nowhere with a letter to the Proctor’s office. You get the jist:

Later in the day, the university’s comms team was cranked up, when it said it “strongly” disapproved of the decision, adding that she should have been “given the opportunity to speak”. “The University is strongly committed to freedom of speech and opposes no-platforming,” a spokesperson said. “We encourage our students to debate and engage with a range of views, and to treat others with the courtesy and dignity that they would expect themselves. We will be making the University’s position and feelings very clear to the event organisers and taking necessary steps to ensure that this cannot be repeated.”

Some pointed out that a central Oxford University position on regulating free speech wasn’t an ideal match for a university found last year to be regularly using NDAs, and nor was it necessarily compatible with a university who last year responded to the treatment of Ebenezer Azamati, the blind student dragged by his ankles from an Oxford Union debate, by stressing that “the union is an entirely independent club not governed by the university”.

Plenty @’d Oxford’s twitter account asking exactly what the “next steps” might be to tell a student society that it can’t un-invite someone that’s invited, but next we got news of the government’s position. Publicly, Gavin Williamson said that “For two speakers to have been no-platformed at Oxford within a week is unacceptable,” adding that “It is not enough to adopt free speech codes if they are not enforced. I expect the University of Oxford to take robust action over these incidents – and, if universities are not prepared to defend free speech, the government will.”

What might that look like? The Telegraph ran some clues on Saturday morning, then on Saturday night HuffPo’s Paul Waugh said that an “11-clause bill” has been drafted within DfE and could be brought forward in coming months to “give life to” the Conservatives’ manifesto pledge to “strengthen academic freedom and free speech in universities”.

Apparently, the 1986 Education Act (which the Telegraph said “underpins” the regulatory powers of OfS) will be revisited as a means of addressing no-platforming. “There’s an obvious gap in the legislation that the duty [on free speech] doesn’t apply to student societies and student unions,” a source said. “It would be very interesting if the OfS had the power to directly regulate them and fine them.”

I have the power

If that feels a little left field, remember that we’ve seen something like this proposal just a few months back. November’s report from Policy Exchange, Academic freedom in the UK, recommended that the government should “extend the existing statutory duty to ensure freedom of speech and academic freedom” to include “students and Student Unions”.

We are told that there was nearly legislation on free speech in universities in October’s Queen’s Speech, had Jo Johnson not resigned. And remember who was Johnson’s special advisor, who then became Head of Education, Skills, Science and Innovation at Policy Exchange when that report launched? Iain Mansfield, who’s now back at DfE as Gavin Williamson’s special advisor – named as the source in the HuffPo piece.

So would the proposal work? Right now, regulations relating freedom of speech on campus form part of the Education (No2) Act 1986: section 43, which places a duty upon the institution to have a code of practice in place that will, as far as is reasonably practical, ensure that all members of the institution and visiting speakers enjoy freedom of speech and further that the use of premises is not denied to groups on the basis of the views they hold.

This was bad legislation in an analogue age, and assumed that the activities and meetings of student societies and SUs would end up being covered by the duty because SUs tended not to own buildings. Indeed one bit of the legislation covers this off by saying that where an SU occupies premises which are not premises of the establishment, “any reference … to the premises of the establishment shall be taken to include a reference to the premises occupied by the students’ union”. The act doesn’t directly mention SUs because government didn’t have a direct relationship with them – the idea was that SUs would play ball with any CoP, and if not the university would “take reasonable steps” like threatening withdrawal of funding or access to rooms.

Back to the 80s

That 1986 legislation does not, of course, “underpin the regulatory powers of the OfS” as the Telegraph suggested, but it does sort of underpin one of them. Schedule 11 of the Higher Education and Research Act amended s. 43 of the 1986 Education Act by broadening providers covered by the legislation to any registered higher education provider, but otherwise HERA only refers to OfS’ powers to intervene in relation to free speech indirectly, via sections on academic freedom. The Act also says that OfS must have regard to guidance given to it by the Secretary of State, and previously the SoS has asked OfS to be a “champion of freedom of speech”.

As such one of the “Public Interest Governance Principles” in OfS’ regulatory framework became “the governing body takes such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider”, and one of the suggestions that OfS has for providers to meet condition E3 (Management and Governance) is the publication of a code of practice to ensure compliance with the statutory duty on freedom of speech in section 43 of the Education (No.2) Act 1986.

In other words – OfS only actually has powers to regulate higher education providers. SUs right now are regulated principally via two sources – their own institution, which is required to ensure the SU abides by requirements in the Education Act 1994, and the Charity Commission which regulates on the basis of charity law. Even if the Education Act 1986 was amended to place duties directly on SUs, that wouldn’t give OfS to power to enforce those duties. To do that, you’d surely have to give OfS powers to regulate (and keep a register of) SUs – a whole different ballgame.

For example – right now, the Education Act 1994 places duties on universities to annually bring to the attention of students those codes of practice on free speech. But OfS thus far has refused to regulate universities on their duties under that act – because it doesn’t have the powers.

Even if it did, it’s not at all clear that OfS would be able to regulate (and fine) student societies. Not all student societies are legally part of the local SU for a start. That’s certainly the case at Oxford, where student societies register with the proctors’ office, not the SU. Maybe OfS will be asked to keep a register of both SUs and every other student group knocking about universities that aren’t technically a part of one. Will they have to have an accountable officer? Will there be reportable events? And what would count as a regulate-able group?

But even if all that was sorted, what would a code of practice written by and enforced by an SU or a university mean in this Rudd situation? A student society decided it didn’t, after all, want to hold up Amber Rudd as a woman to be celebrated on International Women’s Day and uninvited her. Surely forcing them to would represent a contravention of their freedom of expression rather than an enforcement of it? What sort of law would require a student society to never rescind an invitation once given?

We obviously can’t regulate or legislate our way out of student X thinking something would be good, but then student Y disagreeing. We can’t regulate or legislate our way out of student group X thinking something would be great but then changing its mind. And nor can we regulate or legislate our way out of students having a pop at other students over who gets lauded as a feminist.

We can’t regulate things to make them cool. Take these daft concepts to their logical conclusions, and you can see the obvious chaos that would ensue. So you’re left with the distinct impression that this is all twaddle, designed to look tough to the forty-somethings that are obsessed with the antics of SUs or student societies.

Regulating what’s cool

But perhaps that’s the real problem. You can take a view on the “youth of today” all you like, and whether you think they’re snowflakes or whatever. But it’s all so circular – because telling a student society they’re not allowed to un-celebrate a woman will always be censorship and Stalinist for some, and freedom for others. This row is really about student politics, the fact that the young tend to be more left wing, and daft attempts to regulate it.

It always has been – which is why history is repeating itself here. In the early 80s Tories visiting campuses were jostled, shouted down, and sometimes branded fascists and racists – and as we noted in “The enemy within” a couple of years back, by May 1986 Secretary of State Keith Joseph wrote a letter to the-then NUS president (and later Labour education minister) Phil Woolas on free speech:

The saddest aspect of this new relapse into the dark ages is that it manifests itself… in the institutions of advanced learning that should be the crucibles of debate and discussion. In a university or a polytechnic, above all places, there should be room for discussion of all issues, for the willingness to hear and to dispute all views including those that are unpopular or eccentric or wrong.

He went on:

But the new barbarians are not genuinely concerned with the incitement to disorder or the detail of individual freedoms. On the contrary, they are concerned to prevent the orderly and serious discussion of those views with which they themselves do not happen to agree. But in our democracy it is not an offence to discuss views of which some, even many, disapprove. So these new barbarians set up their own fascist policies: they ban that which they disapproved by adopting “no platform” policies…

And he finished:

Remember now, before you do lasting damage to your institutions and to our political life, that serious free and orderly discussion of controversial issues is the hallmark of any society which is worth living in. I plead with you to remember that the denial of such discussion, is a denial of respect of individuals, an attitude morally equivalent to that taken by the fascist and racists whom you wish to oppose.”

That all culminated in the Education Act 1986, and maybe the contemporary flurry of so-called “no platform” cases will end in similarly daft legislation that creates a sledgehammer that will always miss the intended nut. It’s just the consequences we need to keep an eye on.

In higher education in the UK we have thousands of volunteer run student societies organising hundreds of thousands of events every year featuring all sorts of external speakers. They’re cheap, generally very well run, and provide immeasurable social, educational and mental health benefits for the people that run and take part in them.

But ask anyone involved in an Islamic society, and you’ll discover that Prevent’s imposition of heavy risk bureaucracy into the booking of external speakers has a chilling effect. As Robert Liow points out over on Wonkhe SUs, it’s not so much the formal bans, it’s that this sort of thing causes volunteer students running societies more often than not just to not bother.

So remember now, Gavin, before you do “lasting damage to our institutions and to our political life”. It would be pretty ironic if your coming crackdown had the net effect of Amber Rudd not being invited in the first place.

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