Students unions get guidance on the free speech act

The number one thing that students’ unions want from an OfS document on their free speech duties marked “guidance” is some sense of how the duty to secure free speech interacts with wider duties in their university to prevent harassment.

That’s partly because most just want to get things right, and partly because students’ unions have a proud history of focussing on both ends of that see-saw, if less experience of focussing on them both at once. Above all, they want, on those key issues, to be “guided”.

For many this term the tricky issue has mainly been about antisemitism – specifically, where someone says that something is antisemitic, there’s now oodles of pressure to either prevent and ban that thing, or secure and champion that thing.

As such they’ll be disappointed by today’s “consultation” on OfS’ approach to regulating students’ unions on free speech matters.

Despite SUs being organisations with notably less experience and resource for regulatory compliance than their parent institutions, they get today a pretty standard legalistic, jargon-laden and excessively cautious formal OfS “consultation” of the type many in the sector will be familiar with.

Much of it concerns technicalities like the way in which OfS will amend its regulatory framework, or the way it will create a list of SUs. But on the substantive issues of the interaction between the duty to secure free speech – and to balance the see-saw, doing free speech in a way that is “reasonably practicable” – it’s silent.

In the legislation itself, OfS “must” issue guidance for the purpose of helping to determine whether or not students’ unions are complying with their free speech duties. That amounts to a new section in the regulatory framework that pretty much copies out what’s in the legislation.

Meanwhile it “may” specify what OfS considers students’ unions need to do to comply with their free speech duties, and factors that OfS will take into account in determining whether or not a students’ union is complying with its free speech duties, and that “may” include illustrative factors which OfS may take into account in determining whether or not an SU is complying with its free speech duties.

In other words for the time being it is setting out the absolute bare minimum that it has to – and avoiding offering guidance on all sorts of areas that SUs are likely to be confused about – most of which relate to the other areas of the law that an SU has to comply with.

Its justification here is that because OfS will undertake a “quasi-judicial” role, it reckons that it would not be appropriate to provide “generic” guidance on “specific” subject matters, or in relation to specific policies or definitions that relevant students’ unions may have adopted. This sounds like nonsense – OfS manages to issue quite detailed guidance on its expectations around the quality of courses, for example.

It also argues that because there is a diverse range of organisations within the definition of “relevant students union” to be sensitive to the diversity it is not issuing detail right now. Given its regulation of HE providers is also hugely diverse, that also doesn’t hold much water.

Its third excuse is that the free speech duties are newly extended to SUs and so the development of guidance should be informed by its actual experience of monitoring SUs. So rather than trying to make whatever problem OfS thinks there is there better now, it’s going to wait for some car crashes before it tries to improve anyone’s driving.

That means that on many judgements they are making every week in the middle of a difficult Middle East climate, SUs will be assuming that they’ll be damned if they do and damned if they don’t.

It’s weird – the Charity Commission manages to guide on any number of issues in broad terms, and the EHRC manages to talk about the balance of duties with case studies too. Even if OfS thinks it can’t, surely it could commission or partner with people that could?

What SUs desperately need is for OfS to talk to them about the questions and issues they have and identify guidance before they come a cropper. The various excuses for not doing so are more likely to relate to the relative unfamiliarity of OfS with how SUs work – which suggests that there is need to get up to speed, and quickly.

More broadly, having now assumed his formal role at OfS as Director for Freedom of Speech and Academic Freedom, Arif Ahmed will need to work out whether to achieve the impact hopes for he should morph into a a hedge-betting bureaucrat describing the reportable events regime, or something more improvement-focussed. Talking to SUs – beyond a planned trio of 90 minute webinars in the spring – could give him something to go on.

If you’re a philosophy academic at Cambridge or even an OfS official, what SUs do in reality (rather than the crude caricature in the press) will likely be a revelation – and over time I’m convinced that Ahmed and his team will realise that there’s almost no intent at all to shut down students’ free speech. That’s a sub-sector that lends itself towards being guided in the same way that APP professionals are in the sector, rather than threatened and bamboozled.

Crucially, without any guidance on the key issues, the unspoken expectation is that they’ll seek end up seeking lots of expensive legal advice. And that’s a lot more expensive for an SU than it is for a provider.

For subscriber SUs we’ve covered off lots more of the important detail for them on the SUs minisite, but a few other things to note here.

Because neither the Prevent duty nor many aspects of the Equality Act directly apply to SUs, as it stands an SU might be legally required to say lots of things that a university might want to later say no to. That suggests a joint approach or even joint code might be preferable – and on the record, Ahmed was both open to that and encouraging of it.

Ahmed has said that the definition of “visiting speakers” has been drawn so broadly as to include pretty much anyone in the university inviting anyone that accepts, regardless of going through any process – because, he says, the “process itself might represent a restriction.” SUs will want to feed back on that given their wider charity law duties.

And it’s very much stressing that SUs should cover a range of their activities in their code rather than just external speaker arrangements – but they knew that already.

The big danger here is that any number of college SUs like this one take one look at all this and decide to shut down and become a learner voice forum that’s part of the college instead.

During the passage of the bill, government ministers in both the Lords and the Commons repeatedly insisted that it was giving powers to OfS to hand-hold tiny and underfunded student-led organisations through what amounts to a minefield. The government probably now needs to give it some legal cover and a gentle nudge as well.

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