How to make the free speech act “workable”

Much of the focus seems to be on the statutory tort – some people love sending threatening letters. But there are other areas where the legislation would have been difficult to implement.

Section 3 – Duties of students’ unions – directly regulates anything that counts as a students’ union in an Approved (Fee Cap) Provider, replicating the duties of a university onto an SU.

That has two daft implications. The first is that upon enrolling, unless a joint one has been agreed, students are to be told about two free speech codes – depending on whether the SU has booked a room, or the university.

It also means that Anytown College of FE Students’ Union – caught because it’s Approved (Fee Cap) – will have to issue its own code, despite the fact that it’s likely an unincorporated association led by a group of 17-year olds running charity fundraising.

A much more sensible approach would be to delete Section 3, and require the university to ensure that its students’ unions abide by whatever code of practice is in force – which would require a tiny tweak to a provision already in the Education Act 1994 at Section 22(4)c.

Then to complaints. It makes no sense whatsoever for OfS as a regulator to be running its own complaints scheme on free speech when we already have an ombuds for student complaints.

If folk think that that is unsuitable or slow or whatever, the right thing to do is to tackle it, not just create a brand new one when OfS should be busy on financial sustainability.

So to simplify things there, all the government has to do is delete Section 8 of the Bill, and amend the Higher Education Act 2004 Section 12 (1) to add members of the public with a free speech gripe to students and former students already entitled to go to the OIA.

The OIA – as it does on many other matters – would then sensibly incorporate free speech matters into its Good Practice Framework and ensure they’re integrated with other processes covering student conduct.

That then leaves the Director for Freedom of Speech and Academic Freedom role – which always looked odd structurally. It’s almost certainly not necessary – and should go.

And on academic freedom more generally, there are real pan-European concerns that both DfE and DSIT should be showing leadership over as we “reset” our relationship with Europe, as I outlined here.

That would all represent a much more workable and straightforward set of laws that students, staff, universities and the public will be better able to understand. It should also mean that rather than spending their time on compliance costs, universities and SUs can get on with staging activities and events that catalyse a culture of debate on campus.