The free speech bill will create chaos over student disciplinary processes

The Higher Education (Freedom of Speech) Bill has reached committee stage in the Lords, and this week has seen two sessions in Grand Committee exploring the Bill and considering amendments on different aspects.

We looked at some of the amendments being proposed on Monday, and expert academic Naomi Waltham-Smith has a couple of threads up on social media explaining some of the points that have been made and then countered by the Government.

Throughout the two sessions so far, there has been a little bit of discussion that has repeated previous stages in the Lords and Commons insofar as some probing amendments have effectively been arguing that the legislation is necessary or will impose unnecessary burdens.

There have also been several attempts by Lords to raise concerns about the dangers of unfettered free speech and the need to protect students from harassment or other harms.

The tendency from the Government has been to rely on making an argument about “balancing duties” – the idea that under the legislation providers and SUs would only be required to take “reasonably practicable steps” to secure or promote free speech within the law, and as such would still have to take other duties into account.

The problem is that it’s clear that the Lords who have spoken so far don’t really understand the law when it comes to harms to others. And nobody has noticed that because students’ unions are not public authorities – and so are not subject to the Human Rights Act or the Equality Act’s public sector equality duty in the same way – the “balancing duties” are both different and weaker. SUs will be concerned that this will mean they will be unable to take steps to protect their members from discrimination or harm, or even establish codes of conduct for meetings or whatnot.

And as such universities in that context should be concerned that SU activities will represent a space in the university where protections from harassment or discrimination cannot apply. That might feel counterintuitive as the perception is that SUs focus “too much” on the EDI, harassment and discrimination end of the see-saw – but let me explain.

Right now a deaf student has the legal right to complain if a signer isn’t provided in a lecture. The moment that student is on a society social, the protection doesn’t apply. But at least if they were sexually assaulted on that social, they usually can complain to the university.

Last night the Government stubbornly insisted on the direct regulation of SUs with a duty on the Office for Students (OfS) to regulate SUs, rather than enforcing the free speech duty through universities, as is the case for other matters in the Education Act 1994.

My own view is that because the Bill catches approved fee cap providers, asking the four seventeen year old FE students on the executive committee of Bobbleton College SU to have to issue a Code of Practice on free speech and being personally liable for a complaint under the legal tort is hugely impractical. But I digress.

Under Section 3, A6 of the Bill, a students’ union has to issue its own Code of Practice (which means for example at Keele and York there will be three free speech codes of practice in use for students to peruse) and reasonably practicable steps to secure compliance with it – including the initiation of disciplinary measures.

We don’t yet know if an SU officer condemning a proposal to create a “Pro Life” society on Twitter would count in ensuing OfS guidance as an example of free speech, or an example of an SU trying to prevent free speech – but if it’s the latter, the officer would have to be disciplined by their own SU.

The problem is that most free speech cases involve an allegation of harassment/harm on the one hand, and an allegation of silencing or “no platforming” on the other.

Many SUs right now wisely refer allegations that would constitute harassment under the Equality Act to the university. That is sensible. It avoids any double jeopardy and the university is more likely to meet the relevant required standards for a fair investigation and panel (as per, for example, the OfS statement of expectations).

But if the SU is required by law to have a disciplinary process for free speech cases, it is not going to want to refer harassment cases routinely to the university – because those two things are often the same incident.

That will push SU boards towards “full service” conduct procedures of their own that integrate both ends of the see-saw. I don’t think that’s viable, fair, wise or practical – but I can’t see any other way out of it as long as the government continues to be so stubborn.

That in turn will pose a problem for universities. It’s already the case that nobody – not OfS or UUK or anyone, really – can explain whose responsibility it is to investigate a case of harassment when it concerns a year abroad, a placement or a franchise provider. But it’s clear that the proposed OfS duty on harassment announced by OfS recently will require universities to at least oversee those issues and it’s hard to believe that universities will be wise or able to say to an allegation of sexual assault “well that happened at a society meeting in a lecture theatre so it’s for the SU to deal with”.

But as I say – if the case is one that is both about harassment and freedom of speech or expression – the SU will insist that it has its own direct legal duties and has to be responsible for investigating and processing the case. You only have to think about the complexities of a case where someone alleges antisemitism, and another argues their right to critise Israel, to realise that it would unhelpful or unwise to place the duty on thew SU to investigate, determine and handle that case – especially if the SU is at a provider in the “long tail” of 345 providers caught by the act.

Let’s imagine that there is an incident along the lines of that Israel/Palestine example that is on campus but in a student society. The university might say “it’s the SU. up to them”, but it happened on campus, involves their students and the university has duties. It could say “you have to let us handle it”. But not only will the SU have its own legal duties re free speech, the “balancing” legal duties on the SU are different. Does the university use the balancers on itself or the SU when making a judgement?

And that’s on an issue of SU as organiser. Take that Tzipi Hotovely protest at LSE the other month. Is the expectation on the SU to investigate the protesters as members? Or the university? Or both? What a mess. Plenty of SUs don’t even get told who their members are over spurious GDPR grounds!

And if student socities face double investigations of this sort under an SU code of practice, won’t they all just organise outside of the SU where there’s no risk assessment or purview of activities at all? “The chess club treasurer nicked all the subs”, “not our problem as not an SU or uni affiliated society” barely works at Oxford, but would be very unwise at Oxford Brookes.

As Lord Willets said last night:

If we are indeed to make it clear to universities that they have to balance several different and potentially conflicting legal obligations, they are in a very tricky position. Here I come to the earlier intervention from the noble Lord, Lord Grabiner. It seems to me that they need practical guidance on how we expect them to reach these incredibly difficult decisions on a case-by-case basis.

Add SUs and their different duties to that, and you have absolute chaos – not least because the subsequent involvement of the OIA and/or the OfS complaints process is not clear in these sorts of cases, and stems from the Bill team and the impact assessment not thinking these issues through, parliamentarians only really debating Russell Group universities through the optic of the memories of their youth, and there being much more focus on the evidence base for the bill than its practical implications.

It’s not too late to avert a disaster – and I’ve explained a much more sensible way of delivering the Government’s goals over on Wonkhe SUs – but both SUs and universities will need to crack on and get lobbying, sharpish.

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