Is an invited speaker an invited speaker if they’ve not been… invited?

In the Higher Education (Freedom of Speech) Act 2023, one of the specified groups of people for whom freedom of speech within the law is to be secured, and so one of the groups able to advance a complaint into the Office for Students’ complaints scheme, is a “visiting speaker”.

Schedule 6A sets out those “eligible persons” who can complain – and it says:

…a person who was, or was at any time invited to be, a visiting speaker.

To operationalise that, its consultation on implementing the scheme, OfS proposes to define a “visiting speaker” as follows:

A person who was invited to speak at a registered higher education provider, constituent institution or relevant students’ union. It does not include a person who wanted or requested an invitation to speak but was not invited.

That poses a potential problem for those that think universities and SUs are constantly trying to find reasons to ban speakers. What if someone wasn’t formally invited?

In the narrative, OfS has an answer:

We considered a definition that would restrict “visiting speakers” to those who had been approved under the organisation’s approvals process. However, a refusal to approve an invitation may itself give rise to questions about whether there has been a breach of a duty to secure free speech within the law. We therefore discounted this option.

As such, OfS is saying something like this:

…well, if an academic or a student society invited someone informally, and then got blocked by the university or SU once they’d filled in a form, we want them to be able to complain.

And is also saying something like this:

If a university or a students’ union doesn’t approve an invitation, it’s still an invitation. Even though it’s not been approved.

Which is a bit like:

If someone orders something without a purchase order, even if the purchase order is never approved, it’s still an order.

Put another way, for OfS, anyone on campus can issue an invite. And then the duty is on the university or the SU to make it happen unless some other balancing duty kicks in.

The problem with that position for James Murray, Naomi Waltham-Smith and Julius Grower in their response to the consultation is that that definition rules out those who would have been invited but might not have been because of a breach of the other duties.

So their proposal is that OfS includes those whose invitation was “in contemplation” but rejected for reasons that would breach the free speech duty.

As such we need to consider who the invitation was “in contemplation” by – they either mean the university or the SU was contemplating the invite, or they mean that a student, student group or staff member was contemplating it.

Getting contemplative

Bear with me. If a university or an SU requires a student, student group or staff member to go through a process before inviting a speaker, that enables the university or the SU to consider whether there are any legit reasons why it can’t happen.

So if a student society emails Noel Edmonds to put the feelers out pending a proper “official” request, if the request is later turned down because the SU has no-platformed him on the basis of his views on parental orbs, under its proposals, Noel can complain to OfS.

And if the student society is told in no uncertain terms to never email out those feelers, or at least to state something like “this isn’t an official invitation, I just want to know if you could make it if we do go head”, OfS is effectively saying that it wants to be in a position where students, student groups or staff members aren’t made to get approval first.

The OfS proposal, in other words, is to extend the right to invite to students, student groups staff, while the responsibility to then allow, ban or regulate remains with the university or SU.

As such, it can’t be the case that the “contemplation” over an invitation that is envisaged by Waltham-Smith, Grower and Murray is being carried out by the university or the SU. The only alternative explanation is that they think students, student groups or staff themselves were contemplating but then decided against it – perhaps because of some atmospheric issue on campus caused by a failure to implement the free speech duties properly.

Enter Amber Rudd.

Pre-Covid fun

You might remember back in March 2020 (just as Covid was kicking off) that Amber Rudd had been invited to speak at an event organised by Oxford’s UN Women UK society. Presumably, the OfS definition is designed to address this scenario. It wants to prevent universities or their SUs from saying no unless there are grounds to do so.

But neither the university nor the SU said no. The 13-strong society committee had approved sending an invitation to Rudd in the January, but had come under “intense pressure” from students who said the event should be scrapped because of Rudd’s links to Windrush. On the day, the society posted:

…following a majority vote in committee, tonight’s event with speaker Amber Rudd has been cancelled.

It was never clear if Rudd got the message – but she pitched up, got a photo taken in an empty lecture theatre, and the rest is history. It became a signature, quotable case – both by Gavin Williamson in pushing for the legislation, and by MPs and Lords debating the legislation in the Commons.

Some have taken it further – you may also recall this report that HEPI put out on “quiet no platforming”, where a group might debate whether to invite a speaker but decide on balance not to.

Maybe the proposed Waltham-Smith, Grower and Murray change is designed to address these issues. But neither OfS’ definition nor the Waltham-Smith, Grower and Murray amendment will work.

If a student group decides to invite someone to campus, but then decides against it having come under pressure from others, it’s obviously nonsensical to force them to hold the event. That raises the prospect of either staging it with the organisers not present, or making them stage it on the threat of disciplinary action. All that will do is put students, staff and student groups off from inviting people in the first place.

I can’t see that a university or an SU can force students to give up their time to stage an event that they don’t want to stage.

And if the idea is to extend the duty to never think about anything other than equality act harassment (or one of the balancing duties) when thinking about speakers to every student, student group and staff member (rather than the SU or the university as corporate bodies) we’re into the realm of thought crime.

Imagine the training event for new student society Presidents:

When you’re thinking about inviting speakers, I know you might be thinking about reputation or gender balancing a panel or not wanting the flack from other students, but you’re not allowed to even think about that personally. And if we think you have been thinking that, we’ll report you.

Not only will every decision ever taken by a student, student group or staff member to uninvite or not invite be coupled with a made up reason (“it clashes with our Blind date event”, “we’re all busy studying” etc), it’s also completely unenforceable. Who are these students that are going to invite if they’re never allowed to uninvite?

Even if someone was uninvited (or on balance never invited) and the visiting speaker got wind that the student, student group or staff member came under pressure from others to uninvite or never invite, they would either be complaining that the student, student group or staff member had not been trained properly, or that the student, student group or staff member had been trained and had breached the thought crime rules in making the decision they did, and should have been disciplined or something.

And then, even if a university or an SU had a programme of interventions aimed at promoting free speech, I’m not sure OfS should be fining a university or an SU if a student decided to ignore the messages in it. Not having the freedom to protect one’s own reputation with others doesn’t sound much like freedom to me.

If, for example, a student debating society invites David Miller (whose anti-Zionist beliefs are, it seems, protected under the Equality Act), I can see (even if I don’t agree with) the “free speech” case for not allowing the SU or university to step in and ban him unless it thinks his proposed topic will amount to harassment, however much pressure is put on by others.

But if Deb Soc considers inviting David Miller to speak and invites him – and then comes under pressure from Jewish student groups to uninvite him; or if DebSoc informally considers inviting him but despite having been on a training session on the value of free speech resolves to not risk the heat; it surely can’t be the case that OfS or Waltham-Smith, Grower and Murray are intending to force them, can it?

We’re not forcing anyone

So let’s imagine that neither OfS nor Waltham-Smith, Grower and Murray are intending to force people to not change their mind.

Under the OfS workaround, where anyone on campus can turn anyone off it into a “visiting speaker” complainant, it becomes practically impossible to manage speakers at all – and surely unreasonable to give those with the right to invite the responsibility to balance the other legal considerations onto students, student groups or staff.

Neither universities nor SUs can stop them from changing their minds for over-egging harassment concerns, and it can’t be “reasonably practicable” for universities and SUs to allow anyone on campus to turn anyone off it into a “visiting speaker”, only to sometimes also require universities to take away that status in pursuit of their other duties – not least because the Charity Commission says that “any risks of inviting speakers should be balanced with any risks of inhibiting lawful speech”, and should have “clear risk assessment and decision-making policies and procedures for inviting speakers.”

It also says that charities should ensure “there are clear procedures in place for dealing with an incident/complaint and for taking action, including where relevant, disciplinary action, if the charity’s policy and rules which govern decisions on inviting speakers are breached”, and says that charities should “record decisions made on inviting speakers and where appropriate the reasons why, particularly where they may be controversial, and the factors that were considered.”

For the charities regulator, it’s the charity itself that does the actual inviting. It’s therefore obvious that universities and SUs both can and should insist that an “invitation” is only an “invitation” once it’s approved by the body that’s legally responsible for the event.

The Waltham-Smith, Grower and Murray proposal then goes one step further and suggests that anyone on campus can turn anyone off it into a “visiting speaker” complainant even if they are never actually invited by anyone. To support their proposal, they quote R (Butt) v Home Secretary, where someone went to the High Court over the government’s Prevent guidance.

The court was interpreting the Education Act 1986, which requires universities to ensure that freedom of speech within the law is secured for visiting speakers. The judges found that in that act, “visiting speakers” cannot be restricted to “speakers who have already been invited to visit” because a distinction between speakers who have been invited to visit, and those who would be invited but for the effect of the guidance, will be arbitrary.

Fair enough. But someone should have told the authors of Schedule 6A. And so while both OfS and Waltham-Smith, Grower and Murray would love people who haven’t been officially invited to speak to be able to complain, it seems clear to me that while they might be able to raise an OfS notification, moan about it in the press or even use the new “tort”, they shouldn’t be able to use OfS’ new complaints scheme.

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