Three remaining issues with the Free Speech Bill as we head towards report stage in the Lords

The Mail in South Cumbria reports the happy news that students from across its sixth form and Channelside campuses have been elected to the exec of Furness College SU.

As well as a wellbeing festival, the new committee of FE students plans socials, recycling facilities and fundraising for the community.

So it’s odd, really, that in a few short weeks, this unincorporated association with no meaningful budget, where the legal liability is on the student exec committee directly (that’s newly elected Jayden, Gabe and Wilson) will have to:

  • Issue a code of practice on free speech separate to that of the college;
  • Impose disciplinary measures on its own (student) members if they don’t follow the code;
  • Unlike Policy Exchange, will have to account to the regulator for any “foreign funding” flowing to the SU;
  • And will be directly and personally subject to the new legal tort on free speech and academic freedom if they fail in that duty in some way.

That’s because Furness College is an Office for Students (OfS) approved fee cap higher education provider, and so will be caught by the Higher Education (Freedom of Speech) Act. How utterly preposterous.

Not once has a single parliamentarian in either of the houses (other than former shadow minister Emma Hardy) properly engaged with this FE issue, and nor have the civil servants on the Bill team in meetings or in the impact assessment(s).

This is why SUs should be regulated through their provider. When this was suggested during the Lords committee stage of the Bill, the government’s position was:

…if we took the approach proposed in Amendment 47, the duty would be on the provider to take reasonably practicable steps to secure the various freedom of speech obligations, as I have said, but there would be no requirement on student unions to comply with those requirements.

But regulating through the provider doesn’t mean there would be no requirements on SUs, just that it would be regulated slightly differently – and anyway, the government’s position directly contradicts… the government’s position when it moved, in committee stage in the commons, to regulate Oxbridge college SUs (ie MCRs and JCRs) through their colleges:

Colleges fund their junior and middle common rooms and, to that extent, can exert a lot of control over their activities. Those groups do not own or occupy their own premises or run the booking the systems, so imposing a freedom of speech duty on them seems to be unnecessary and overly bureaucratic. We do not believe that including them in the provision is necessary, as the freedom of speech duties on the colleges will apply to the activities of their student unions…. and to that extent, they can exert a lot of control over their activities, as these groups do not own or occupy their own premises, or run the room booking systems. And so imposing these freedom of speech duties on does seem quite unnecessary and overly bureaucratic.”

The idea that the government is taking that kind of sensible approach to Oxbridge MCRs and JCRs on the basis that they’re already being supervised by their colleges, but is not doing similar for SUs in general or Furness College SU (whose principle activities don’t even include its HE students) specifically is absolutely astonishing – and pretty much tells us everything we need to know about the concerns both of the Bill team and its woeful impact assessment, and parliamentarians themselves.

But we shouldn’t worry just about SUs. One of the things that we should do when evaluating the new Free Speech Complaints Scheme proposed in the  Bill is think about what might motivate a student to make a complaint.

And we should specifically try to work out what might cause a student to pursue a complaint through this, rather than the Office of the Independent Adjudicator (OIAHE), route – given the government keeps insisting that students should have a choice.

As such, I don’t think anyone has given nearly enough through to academic failure.

A huge proportion of the OIA’s casework concerns students who appeal against a result through their university and up to and including the OIA. They’re often desperate – having sunk costs into their dream profession, or having travelled across the world carrying the hopes of their family with them, or both.

Most of the time, students attempt to question the academic judgement of the academic staff and find that they can’t. Some of the time they’ll question the support they got to produce the work that they did, and often only accept that they can’t challenge academic judgement once someone says that they should have complained earlier.

As such, as any SU Advice Centre will tell you, it’s not that they know their chances are doomed given the academic judgement “get out of jail free” card. It’s that they’ll pursue as long as possible to as high a body as possible because they have no other choices.

The Free Speech Complaints Scheme in the Bill is modelled on the OIA scheme in many ways – but is different partly because the definition of complainant is broader than just students, and narrower on the type of complaint.

It can be from a student, staff member or visiting speaker that has suffered adverse consequences, and those consequences have to have been as a result of action or inaction of the governing body of a registered higher education provider that claims that, or gives rise to a question as to whether, the action or inaction was a breach of a duty of the governing body to secure freedom of speech within the law.

There is, however, another important difference. In the Higher Education Act 2004, a complaint is not a qualifying complaint to the extent that it relates to matters of academic judgment. But no such exemption applies to this new OfS Free Speech Complaints Scheme. In other words, even if a complaint from a student partly (or fully) concerns a matter of academic judgment, the new OfS scheme can, will and should look at it:

  • So a student who fails their politics degree will be busy complaining that their views never did chime with those of the lecturer, and they suspect their being marked down was about political bias.
  • Another student will be able to argue that their low mark was a judgement on the political views expressed in their exam rather than some objective criteria.
  • A third will be including screenshots of lecture slides that make commentary on political events and views.
  • A fourth will say that the views they tried to express in class – which were laughed at by other students with no intervention from their lecturer – made them feel ostracised and led to their poor performance in their Biology exam.
  • And a fifth – from a member of academic staff who doesn’t get on with others in their school – will object to the academic judgement of the course team that resolved to diversify the curriculum that they now have to teach.

Maybe it’s the case that the OfS scheme will, in the end, have to dismiss each of the above complaints for other reasons. But the expectation that it will deal with each of them, not least from a politically appointed Director for Freedom of Speech and Academic Freedom that is both expecting to and under pressure to deal with them, will be huge.

If it does, chaos ensues from every chancer student unhappy with a grade, in a regulator that, remember, doesn’t believe in external examining. If it doesn’t, chaos ensures and we end up with more legislation as the new Tsar resigns, unable to meet the demands placed on them by the Telegraph and Toby Young.

And as such, the final looming question for the Bill concerns last week’s row about subject benchmark statements. There’s a world in which universities can use them and their EDI nostrums on the basic of autonomy and academic freedom. There’s another world where adopting a university of decolonising the curriculum is specifically ruled out in OfS guidance emerging from the Free Speech Act on the basis of protecting free speech.

That we’re so close to the Bill becoming law, and we don’t know which world will emerge in OfS guidance, is pretty astonishing really.

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