Let’s assume, for the purposes of this blog, that a coherent case has now been made for the existence of the Higher Education (Freedom of Speech) Bill as a solution to a problem.
Let’s also do our best to ignore the other issues facing society or even higher education, lest we are accused of whataboutery over the problem we’ve temporarily decided to accept and requires legislation to fix.
Some 536 days after its first reading in the House of Commons, the Bill is now due to be treated to line-by-line scrutiny in its committee stage in the House of Lords – the first real prospect of anything other than partisan pot shots being taken by two sides that thus far have seemed much more interested in the right of freedom to speak than the responsibility to listen and actually respond to that speech. As well as the Halloween kick-off, we’re due sessions on 2 November, 14 November and at least one other is to be scheduled.
The potential for alt-right grifters to use the legislation and its new “tort” to coin in compensation every time they’re ridiculed by a students’ union president or critiqued by the master of a college has dominated discussion so far (despite those also being examples of freedom of speech) – so the big news is that amendments with Crossbench support in the name of Lord Stevens of Birmingham (Cross), Lord Willetts (Con), Lord Wallace of Saltaire (Lib Dem) and Lord Collins of Highbury (Lab) would prevent the creation of the new tort.
They argue that it risks duplicating the functions of the Office for Students and would impose “unnecessary additional costs” on universities [and their students’ unions]. It will be fascinating to see if the government has the numbers to prevent what has so far been seen as a key plank of the Bill from being sensibly deleted.
Plenty of other problems remain with the legislation – here we’ve identified some of them, which may end up being addressed by the amendments that have been rolling in, might be tackled instead by the Office for Students (OfS) once it gets into implementation mode, or alternatively, we suspect we’ll just be stuck with.
Legal but harmful (or just fairly abusive)
In May 2021, universities minister Michelle Donelan launched the Bill straight into hot water when she reasonably suggested that legislation whose second line states as an objective “securing freedom of speech within the law” would protect the rights of Holocaust deniers on campus. Amendment 1 from Lord Wallace of Saltaire (Lib Dem) even proposes tidying up the Bill so the “within the law” framing is consistent throughout, while Amendments 2, 3 and 28 also have competing stabs at actually defining the term.
Since her immediate ticking off from No.10, the government has relied upon providers only being asked to take “reasonably practicable” steps to secure free speech – arguing this means other duties around harassment won’t be erased. Others have argued that there’s enough case law around the interaction between Articles 10 and 17 of the Human Rights Act that would mean a university or an SU would feel able to turn down a speech explicitly on holocaust denial.
But the question of holocaust deniers coming to speak on other issues gets repeatedly dodged. It also remains the case that nobody has been able to make clear where universities or their SUs will be able to draw the line more generally between acceptable and unacceptable speech – on the basis that all sorts of conduct on campus could and should be legal but could still be harmful or unacceptable in context. None of the amendments really address this “legal but harmful” conundrum that Donelan now also faces over her online safety bill at DCMS.
And while plenty of MPs and Lords have argued that condemnatory behaviour from senior academics, professional services staff or student leaders could “chill” debate, nobody has yet managed to explain why their right to do so wouldn’t also be protected as free speech in and of itself. None of the amendments seem to tackle that.
The Bill sets up a new Director for Freedom of Speech and Academic Freedom as an ombudsperson capable of hearing and adjudicating on complaints about breaches of the new duty from students, staff and the public. The problem is that almost all of the “controversies” issues involve student conduct, EDI or harassment allegations on the one hand (where students have a right to a route to the OIA), and staff or external speakers arguing that their freedom to be challenging or even offensive is under threat on the other (where the route is to the new DfFoSaAF).
The June 2022 version of the impact assessment for the Bill notes that students/staff may be “confused” about the two processes (and their interaction with staff grievance/employment tribunal) but offers that the government will ensure that process is signposted. But this isn’t about a flowchart – it’s about rights. An amendment from David Willets attempts to deal with this by specifying that the OfS route couldn’t kick in until a university’s procedures, and those of the OIA, had been exhausted – but that posits the OfS adjudicator as having some higher authority than the OIA, which feels less than satisfactory.
It has pretty much become accepted during the passage of the Bill that the Kathleen Stock/Sussex case provides good evidence for the need to legislate, where the established narrative is that Stock was hounded off campus by censorious students. What the government has never done is explain how the new law would have caused the affair to turn out differently and has never explained why similar pre-existing powers currently held by OfS don’t seem to have generated any action off the back of an investigation it announced last November – that ironically was only made public thanks to the Lords.
If Stock was unfairly harassed and drummed out, and the university failed in its existing 1986 Education Act duty and the HERA public interest governance principle to protect academic freedom and freedom of speech, wouldn’t we know that by now? Why hasn’t OfS fined? Or issued a condition of registration?
Alternatively, students used their free speech and protested within the law, much of the objection to Stock was on anonymous social media from outside of the university, nothing done by Sussex students or other academics reached the threshold of harassment, and the university did all it could. If that’s what OfS has found, don’t the Lords need to know? And why the silence from the regulator?
On what I might describe as the “other end” of the freedom from harm/freedom to speak see-saw, Lord Collins of Highbury (Lab) attempts to ensure that non-disclosure or confidentiality agreements with higher education providers can’t obstruct a victim’s freedom of speech at Amendment 11. Meanwhile, Baron Hunt of Kings Heath (Lab) and Baroness Morris of Yardley (Lab) use Amendment 25 to probe the extent to which the Bill covers protest and any behaviour “designed” to drown out a speaker.
Much of the discussion over the Bill has assumed that all ideas are somehow equal – in Amendment 16, Lord Wallace of Saltaire (Lib Dem) attempts to probe whether “controversial or unpopular opinions” not based on evidence should be included in the protection of academic freedom. But who would decide that?
The amendments list is full of these sorts of proposals, which are designed to test some of the principles of the Bill but end up exposing how difficult it is to legislate in these areas. One amendment attempts to prevent “discrimination” in the distribution of research funding by providers based on lawfully-held principles or political opinions of the recipient – another, for example, seeks to prevent research funding or donations from funding “abridging in any manner” the right to freedom of speech.
We wait with interest to hear the anecdotes driving these amendments and to determine whether the unintended consequences have been thought through.
As we’ve noted here before, the proposed regime would apply to students’ unions at OfS registered providers that are eligible for financial support – and so would exclude students’ unions at large providers like the University of Buckingham and Cranfield University. But it would also apply to students’ unions at many small, specialist or further education providers on the Office for Students register. These are often tiny, volunteer-run unincorporated associations focussed on FE student representation and charity fundraising and are unlikely to be able to bear the burden of duties (ie to develop a code of practice or use disciplinary procedures).
In recognition of this, the government took specific steps at the committee stage in the Commons to exclude JCRs and MCRs (ie the SUs of Oxbridge colleges) on the basis that the college exercised enough oversight. That makes lots of practical sense – and Baroness Garden of Frognal (Lib Dem) and Lord Wallace of Saltaire (Lib Dem) have a sensible amendment in to spread that sense to all providers so that the regulation of SUs would be carried out through the university rather than directly by the Office for Students, as is the case for other issues in the Education Act 1994. Doing so would save OfS from compiling a register of SUs, and would recognise the practical overlap between SU and university duties over external speakers and counter-terrorism duties.
Finally, from an expectations management point of view, we refer readers to our blog from the day the Bill was published. Relatively ignored in the discussion so far has been the “positive duty” to “promote” free speech that supposedly makes this legislation better than what’s there now. But what does it mean – one of those online courses you do at induction? And what if students, having experienced this “they’re all kids” bit of education, still use their free speech to protest views that they find hateful or harmful?
Given the majority of contributions at the second reading in both houses have considered the nature and extent of “cancel culture”, it’s pretty weird that the proposals will do many things, but they absolutely will not clamp down on cancel culture per se. As we noted here, the implication is that the “organised mob” must and will be stopped. And if you can’t find the ringleader of the pile-on, or it turns out that it was all a bit organic, you should still hold the students’ union president or the head of the department or the vice chancellor or Universities UK to account for not doing enough to prevent that mob.
But what if there are no ringleaders? What do you do about anonymous troll accounts? What if someone is banned from doing something by a social media company but not by a university, and vice versa? What if much of the “mass” of messaging comes from those outside the university or universities in general? What if the legislation is all a bit analogue and institutional in a digital and distributed world?
In other news, amendment 32 suggests guaranteeing freedom of speech while “fulfilling the provider’s duty of care for all students, academics and staff”. Someone probably needs to tell Lord Mann (Lab) that providers don’t really have one. And that’s arguably much more of a problem than the one this Bill tries to solve.