Has the new free speech bill been properly thought through?

As “niche audience” posts on Wonkhe go, this one is right up there - but it does tell us a thing or two about the depth of thinking that’s gone into the impact assessment for the Freedom of Speech (Higher Education) Bill that ought to sound alarm bells more generally.

Jim is an Associate Editor at Wonkhe

One of the things that the legislation seeks to do is bring students’ unions directly under the ambit of free speech regulation for the first time. Back in 1986 the assumption was that a level of control over SUs was to be done through universities – here the repeated (and disingenuous) cries of “we can’t control them” from VCs have been met with “OK, we’ll regulate them directly then”.

That sounds fine in theory but it raises a bunch of questions. For the enhanced free speech duty on providers, a decision has been made to only implement it on higher education providers – the Education Act 1986 covered all FE Colleges too. And then when it comes to students’ unions, some further filtering has been done – the intention is that the duty would only cover recognised SUs at “approved (fee cap)” providers.

The impact assessment doesn’t say why, but let’s assume that’s shorthand for “we want to catch all the SUs where the Telegraph has told us there’s a problem without actually mentioning the Russell Group”.

The problem with this version of the level playing field is that it doesn’t really work. Why would the students’ unions of Cranfield or the University of Buckingham not be covered? Will the duty as drafted cover the JCRs (and MCRs) attached to Oxford and Cambridge colleges? What about the “colleges” at places like Lancaster and Durham? What about student groups who are entirely independent? (see for example the Oxford and Cambridge debating unions).

The duty on students’ unions has some specific wording designed to cover clubs and societies that isn’t present in the provider duty. But what about places (like Oxford and Cambridge) where clubs and societies are supported by the university not the SU? What about the handful of student groups supported by universities more generally (see Christian Unions, for example). Athletic unions? Student sports clubs supported by the university? And so on.

But the most worrying bit is the way in which the legislation as drafted would “catch” smaller SUs in the FE and small and specialist sectors. The breadth of the definition of an SU in the Education Act 1994 is often not picked up by these providers – I have over the years seen a lot of “but we don’t have an SU, we have a council, course rep committee” etc when it’s clear that all sorts of those sorts of things would actually be defined as a students’ union if the courts or a regulator got involved. And this Bill does indeed propose that the courts or a regulator should get involved in all sorts of aspects – not least OfS working out who has an SU.

The way the Bill is drafted will pick up all of the classic “small FE” SUs that are basically five 17-year olds operating an unincorporated association from a desk in student services that does some charity fundraising, sits on college committees and sells Calypso cups in the common room. The idea that a body like that could meaningfully bear the weight of a formal regulatory duty and/or have to stump up (personally) the cash for a wronged speaker using the new legal tort is for the birds – and not even close to being recognised in the impact assessment.

And quite how some of the assumptions in the free speech duty on SUs would interact with lots of FE colleges’ safeguarding and EDI policies is anyone’s guess.

The problem here is that the impact assessment doesn’t seem to have considered the nature or character of either the “long tail” of providers it’s looking at, or their students’ unions that the Bill will accidentally catch, at all.

Generally, there is continuing confusion about OfS regulation of college HE in 170 OfS registered colleges and overall DFE/ESFA regulation. A while back OfS decided to make life simpler for itself and for universities by combining its regulator of courses role with its charitable regulator role, but this means confusion for colleges who have OfS directing governance, accounting, electoral registration, free speech and a few other things in a way that overlaps or substitutes for ESFA activity as the lead regulator in FE.

To cap the annoyance, DfE collects 25% of OfS costs from colleges (who account for less than 10% of regulated HE) because the number calculation covers all level 4 courses whether OFS regulated or not. There’s a section in the free speech impact assessment which acknowledges this issue for colleges but which says (pretty pathetically) “we can’t do anything about this because of the 2017 act”

For the SU issue, there’s a simple solution here – providers already have regulatory duties over their SUs, and they should be clarified and if necessary strengthened such that OfS would continue to hold a single relationship with each higher education provider, but could hold providers to account for the way they in turn regulate their SUs. The point is that academics and academic departments have a defined level and type of autonomy, and we don’t respond to that by asking each of them to directly register with OfS – so nor should we do so with often tiny and fledgling SUs.

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