Free Speech Bill – Impact Assessment

That’s £48.1m incurred, jointly, by students’ unions and higher education providers in England: familiarisation costs and compliance costs (including direct costs and administrative burden). There will also be an impact on the OfS in creating a new director role and creating a complaints scheme – these costs will, of course, also have an impact on providers as they will be covered by subscription (and fine) income.

DfE claims it does not know precisely where these costs will fall – for instance it claims not to know which providers are not complying with existing free speech duties. This may come as something of a surprise to the Office for Students, who holds a register of 420 providers who are complying with the E (governance) conditions of registration. There’s also no clarity as to how many additional OfS staff will be required to support the work of the new director for freedom of speech (though between 5 and 10(!) is suggested later in the document), or indeed how much said director will be paid (though the total cost of this is assumed later in the document to be between £0.5m and £0.8m.

Alternative universe

In these impact assessments it is required that an alternative is provided to the proposed intervention, and this needs to be presented alongside a “do nothing” option and the measures that will be taken forward.

The “do nothing” consideration notes that:

As the growing body of evidence (Policy Exchange (2019); KCL Policy institute (2019); JCHR (2018); Hillman (2016)) has found a chilling effect on freedom of speech and the existing legal framework for protecting and preserving freedom of speech is insufficiently effective to the detriment of students, staff and visiting speakers, under the current framework, it is likely that the fundamental principles of freedom of speech and academic freedom at some HEPs would continue to not be sufficiently promoted and protected.

Notice again that the growing body of evidence is not sufficient to make a determination as to which parts of the higher education sector will not be promoting freedom of speech.

“Option 2” is non-legislative – offering other three options for promoting the freedom of speech.

• Option 2a concerns the promotion of the 2019 EHRC guidance. This is dismissed as “research has continued to find evidence” of the famed “chilling effect”, although we’re not told what particular evidence published since February 2019 has convinced the government that this guidance is not sufficient.
• Option 2b is the Michelle Donelan Round Table route, where a meeting of the great and the good is convened to solve higher education problems. Despite this apparently being good enough to address the impact of Covid-19 on student, and the actual documented problem of sexual misconduct it appears that since Sam Gymiah’s 2018 Free Speech Summit not enough has happened to make it worth trying again.
• Option 2c lets fly the dogs of war in the form of guidance and registration conditions from the Office for Students. This one is a bit of cheat as this is going ahead anyway – though there’s not really any indication as to why we couldn’t use a registration condition rather than a bill.

Giant steps

The Higher Education (Free Speech) Act will come into force in the autumn of 2022 at the earliest – pending the safe passage of the bill as written. DfE estimates that this will impact 420 providers (clearly not expecting any late surge in registrations, although we learn later on that DfE actually expects there to be 468 providers registered with OfS in 2023-24, and a further 15 the year after) and around 350 students’ unions as broadly defined.

There are no costs to these bodies associated with the statutory tort (the ability for aggrieved parties to make a civil claim regarding a breach of free speech duties – the David Irving Travel Reimbursement Scheme as it shall henceforth be known), with some impressively circular logic suggesting that as all providers and SUs will comply with free speech requirements there will be no financial impact! To be scrupulously fair, in writing these things you are allowed to omit “sanctions” from your working, but as much of the costs for SUs and providers will be in defending yourself against vexatious and frivolous claims I’m not impressed.

The wording on the benefits from the proposal to widen and enhance academic freedom will be read with interest by trade unionists:

Strengthening protections on academic freedom gives staff improved employment security. This gives staff confidence to challenge the current thinking without fear of consequences to their employment status or progression; and promotes an environment where open debate can lead to new ideas and solutions which address the current challenges facing society.”

One of the other things you are meant to do in these things is actually consult the people who will face a likely financial impact to help you put some sensible numbers on costs. Here DfE has gone above and beyond by contacting 30 providers and getting 6 responses – mostly alternative providers, and four of whom already had free speech policies. How many students’ unions were contacted? Yes, none – DfE is just assuming the costs will be similar in scope to providers.

The suggestion is that 5 per cent of providers will need to ensure compliance by running a one hour training session on free speech – remember this is the same document that says a whole actual Act is required to address this pervasive problem.

Watch and learn

So how is the success of this bill to be measured? With Michael Barber getting involved in delivery again it is clear that some poor soul in DfE will be drawing trajectories and making projections. But of what?

This, for me, is the most concerning section of this document. Suggested measures include:

• that the levels of self-censorship that are currently reported are reduced – there’s even going to be a government survey of academic self-censorship!
• Monitoring the number of cases raised with OfS (remember this can only happen when provider-level processes are exhausted)
• Number of incidences of “positive steps” taken by providers to promote free speech.

What’s not on there? Well the number of cancelled events reported to OfS through Prevent monitoring, for one. That would feel like a data time series of interest, but no mention here. And there’s nothing about measuring student attitudes, perhaps using some kind of a national survey of students.

The detailed breakdown of costs towards the end of the assessment are an interesting read, albeit a speculative one. But if you have no meaningful way of measuring benefits, it does feel like something of a sunk cost – the costs of doing business with a government fighting a largely imaginary mental battle.