A quick look at proposed amendments to the free speech bill

So now’s as good a time as any to take a look at what’s been submitted and to try to work out what’s in the minds of the submitters.

Early on, universities minister Michalle Donelan submitted a raft of amendments whose intention was to make sure that the individual colleges of Oxford and Cambridge be covered by the legislation.

That makes lots of sense in principle – save that for some reason she’s specifically proposing that the JCRs and MCRs of the colleges (which count as students’ unions under the Education Act 1994) would not be covered. That’s odd given cases like this, but would also leave us in the surreal position where Basingstoke College SU (a couple of seventeen year olds running a RAG week) would be covered by a complex legal duty to issue a code of practice and operate a disciplinary scheme, but Balliol JCR wouldn’t be. Go figure.

More broadly, it’s a fascinating move because it wasn’t done during the passage of the Higher Education and Research Act– which doesn’t appear to include the word “constituent” anywhere. We looked at some of the issues that throws up in Oxford and Cambridge here.

By the way. It’s already a headache thinking about some of the provisions around freedom of speech “within the law” when it comes to TNE. Whose law? But I’m also concerned about a college that has four or five franchise partners. Whose free speech complaints procedure are we using if something goes wrong?

In some cases reading the doc I have no idea what’s going on. For example, for some reason shadow minister Matt Western wants to extend the legal duty on university governing bodies to “any individual or body of persons concerned in the government or management of a registered higher education provider”, which sounds unhelpfully broad to me. He’s also proposing that the duty on not denying space or facilities use on the basis of beliefs be extended to the online world, and I for one am looking forward to seeing a virtual student demo over Katie Hopkins’ avatar in those Second Life universities everyone built once.

John “Common Sense” Hayes seems to abandoned all of that common sense. In one amendment he proposes that any conduct that would otherwise constitute conduct having the effect of harassment in accordance with the Equality Act 2010 will constitute freedom of speech within the law as long as it conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting. You can see what he’s trying to do, but I’m looking forward to John giving us some examples of discussions “of an academic or scientific matter” which require “creating an intimidating, hostile, degrading, humiliating or offensive environment”.

Meanwhile, Hayes wants to extend the “academic freedom” clause to cover “design and deliver their own teaching, notwithstanding direction as to the topic or occasion of their teaching”. Again, you can see where he’s coming from, but if nothing else that would set up a major collision course with several of the professional, statutory and regulatory bodies floating around higher education who variously keep a tight grip on that sort of thing.

Meanwhile Fiona Bruce has an amendment in that seeks to protect the right of academic freedom for students in addition to academic staff, another that would leave out that “within their field of expertise” thing, and another that would allow staff to express opinions “including without limitation opinions concerning its curricula, governance, affiliations and the teaching and research conducted at the provider”. Has the Conservative MP for Congleton joined UCU?

Charlotte Nichols has had a go at addressing the Holocaust denial issue by suggesting that the objectives would not apply to any person or body that has made any statement in public that amounts to the denial of genocide. It’s hard to argue with, but it’s a fairly blunt attempt to “draw the line” where there are competing concerns – something we looked at here.

Later, John Hayes wants the governing body of a registered provider to make a report at least once a quarter detailing the steps the organisation has undertaken to fulfil its duties, and another requiring OfS to compile an annual review of providers, “ranking their compliance” with their free speech/academic freedom duties. That would represent a more detailed and onerous mode of regulation than is represented in law for any of the rest of its duties – and reminds us of the imbalance that’s about to be created between this issue in OfS and the rest.

When a student tries to get OfS to intervene on their individual issue and it says “we don’t do that unless it’s about free speech” that will a) be pretty galling and b) fatally undermine the illusion of an independent regulator. “No we won’t look at your whole cohort doing a year abroad on YouTube”, but “we will look at your SU having a minor fall out with pro-life soc over a plastic foetus at Freshers Fair”. Sure.

Matt Western and John McDonnell want procedures to be adopted for consulting by ballot staff and students of a provider in making decisions about whether to allow the use of premises, and on what terms, for events – which sounds preposterously impractical – and also want Codes of Practice to include the right of peaceful protest by staff, students and other interested parties, which sounds much more sensible.

Matt Western has also tried to deal with the OfS/OIA overlap by suggesting that “a free speech complaint is not to be referred to the OfS under the scheme if a complaint relating to the same subject-matter is being, or has been, dealt with by the Office of the Independent Adjudicator”, but that would mean that a staff member can’t use the OfS scheme if a student uses the OIA scheme, so that won’t work. He’s also suggested that when it looks at a complaint under its new complaints scheme, OfS considers the other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equalities Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015. It’s almost as if we should just give the whole job to the OIA and be done with it.

In an attempt to deal with that MCR/JCR issue, Matt Western is suggesting that where a provision applies to a students’ union, it should also be taken to apply to “any other student body”, including “any club or society made up of students at a higher education institution, whether or not the club or society is affiliated to the students’ union”. Fair enough, but how would that work? Do they all have to register with OfS?! All those Christian Unions that aren’t part of the SU or university over their insistence that members sign a doctrinal statement are going to be fun and games. The point is that you can apply a duty to a “clearing house” of diverse groups like an SU or a university – but not directly to the groups themselves, surely.

He’s also suggesting that OfS provides an “annual update on the number and nature of complaints made to OfS regarding freedom of speech”, and “examples of what OfS believes to constitute unacceptable infringements of freedom of speech”. Again, fair enough, but that would be more detail than OfS provides right now over any of the rest of its duties.

Finally, providers that are currently captured by the Bill and impact assessment are those eligible for OfS 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 committee to need to seek costly legal advice which it may not be funded to obtain.

So Matt Western proposes that providers must take steps to ensure that students’ unions have sufficient resources to carry out their duties. If the Conservatives block it, they’re guaranteeing that many SUs won’t be able to comply. If they approve it, they’re legislating to fund SUs. Funny old world.