Higher Education (Freedom of Speech) Bill

Written evidence submitted by Jim Dickinson, Wonkhe (HEFSB02)

Higher Education (Freedom of Speech) Bill - submission to the House of Commons Public Bill Committee.

Submission from Jim Dickinson:

I work at Wonkhe - a specialist higher education policy operation - where I take a particular interest in students, governance and higher education regulation and lead on our work advising and supporting students’ unions and their student leaders.

I am a former long standing director at the National Union of Students, where I led on students’ union development, campaigns and political strategy, student engagement and governance. I have also been a CEO of a large students’ union (UEA in Norwich), and have served as a governor in both further and higher education and the voluntary sector. I am also a fellow of the Royal Society of the Arts.

I have a long standing interest in and considerable expertise in the areas of freedom of speech on campus and students’ union regulation - and have recently completed a national project supporting the development of a Code of standards for students’ unions on freedom of speech and political diversity.

Wonkhe: Taking the debate forward – A new code to secure and champion freedom of speech and political diversity on campus

https://wonkhe.com/blogs-sus/freedom-of-speech-code/

I have general concerns surrounding the necessity of the legislation and the extent to which the problem that it seeks to tackle is demonstrable - but setting those aside, here I outline concerns about the approach to regulation that the Bill as drafted takes, and offer suggestions to ensure the legislation is workable.

Much of the below concerns the duties of students’ unions covered in A4: Duty to take steps to secure freedom of speech.

Coverage and capability

1. There is a particular issue with the providers, and therefore the students’ unions that would be "captured" by the Bill as explained in the impact assessment. As drafted, the proposed regime would apply to students’ unions at OfS registered providers that are eligible for financial support. This appears to exclude the JCRs and MCRs at Oxford and Cambridge (which are students’ unions under the Education Act 1994 Part 2), and would also exclude students’ unions at providers like the University of Buckingham and Cranfield University. There is therefore an argument that the providers to which the SU provisions should apply should be expanded.

2. However, as drafted the regulation would also apply to students’ unions at a large number of small, specialist or further education providers on the Office for Students register. These are often tiny, volunteer run unincorporated associations focussed on college representation or charity fundraising and are unlikely to be able to bear the burden of duties (ie to develop a code of practice or use disciplinary procedures). There is therefore also an argument that the providers to which the SU provisions should apply should be narrowed.

3. A related concern is that the providers that are captured are those eligible for funding – and as such the assumption is that the duties on those providers are capable of being exercised within that funding. However the funding and resultant capacity and capability of an SU to undertake these duties is usually wholly dependent on a negotiation between the SU and the provider. Without a duty on the provider to resource the SU appropriately to carry out the duty there is a material risk that they will be unable to. Vexatious complaints surrounding, for example, SU elections may not succeed but would cause an SU committee to need to seek costly legal advice which it may not be funded to obtain.

4. The legal definition of a students’ union is set out in the Education Act 1994 Part 2, and is deliberately quite broad – one of the types of body captured is any representative body (whether an "association" or not) whose principal purposes include representing the generality of students at an establishment to which Part 2 applies in academic, disciplinary or other matters relating to the government of the establishment. In many of the providers captured by the regulation, what will technically "count" as a students’ union may be a small committee of student reps, may not be functioning at various points in the academic year and is unlikely to be meaningfully capable of compliance.

5. A related concern is that where they are legally freestanding registered charities (usually in universities), students’ unions do maintain their own complaints procedures (as they are required to do under the Education Act 1994), and appeals to those complaints are heard by universities (EA94 22.2.m) - because universities act as the regulator of SUs under that act. Practically, university codes of practice established under the Education Act 1986 and associated regulations and practices tend to integrate SU and university approvals and support for external speakers and freedom of speech matters on a day to day basis - partly so universities can discharge their duties under the Counter-Terrorism and Security Act 2015. The real risk is that complainants using either the proposed ombuds arrangements or the legal tort are confused as to which body they could or should be complaining about - the SU or the university.

6. Another concern is the "chilling effect" the direct duty on SUs may have on proactive free speech work. While the coverage and controversies surround Russell Group universities, in the rest of the sector there is not an automatic clamour from student groups or students to run events or stage debates - which tend to require proactive work from SUs. Smaller SUs are unlikely to undertake that proactive work if they fear fines and/or direct threat from the legal tort.

7. To fulfil expectations placed upon them directly by the Charity Commission and indirectly by counter-terrorism legislation, university students’ unions have procedures designed to assess any risks posed by their activities (including those of their clubs and societies) with measures in place to mitigate those risks. There is already evidence that to reduce the prospect of costly legal action being taken or to avoid fines, SU trustees are considering prohibiting their own clubs and societies from provisionally inviting speakers unless and until a risk assessment has been completed – a process which would potentially have a "chilling effect" on the range and diversity of speakers invited.

8. The draft bill expects that SUs will, in enforcing the Code of Practice issued on free speech, are to use disciplinary procedures. Another concern then is that disciplinary arrangements for members of SUs are frequently integrated with those of their university. For example many SUs might remove a student from membership for a minor offence in an SU bar, but would pass a complaint of harassment in an SU context or a serious offence at an SU event to their university. As such again complainants using either the proposed ombuds arrangements or the legal tort are likely to be confused as to which body they could or should be complaining about - the SU or the university.

9. The two current principal sources of regulation for SUs are Charity Law and the Charity Commission, and their own university which regulates students’ unions under the Education Act 1994. A third regulator would be very confusing for students’ unions and may be counterproductive.

A practical alternative

10. As such I would suggest a straightforward alternative that would reduce costs and improve clarity. Students’ unions already have a range of duties under the Education Act 1994 (Section 22) and their provider has to issue a Code of Practice detailing how they are met. These duties should include the freedom of speech duties. As is currently the case, the governing body of every provider will be required to take such steps as are reasonably practicable to secure that any students’ union for students at the provider meets the requirements, and the Office for Students would regulate higher education providers as it does now, making use of relevant conditions of registration relating to management and governance and freedom of speech to ensure that the provider is doing this properly.

11. In this way it would still be the case that students’ unions will be regulated on this issue directly for the first time, but for simplicity the regulation would be through the provider that is registered with OfS rather than via OfS directly regulating the SUs. Anyone wanting to make use of the legal tort or ombuds arrangements would complain about the university which in and of itself could then take action, including funding reductions or friends, on the SU.

Additional issues

Affiliation

12. As currently drafted, the objective is securing freedom of speech within the law, which 3(c) states includes securing that "affiliation" to the students’ union is not denied to any student society on grounds specified in a previous subsection. There are two issues with this provision. In many providers - not least the universities of both Oxford and Cambridge - it is the university which handles, regulates and provides support for clubs and societies. As such this duty - which is not replicated under the equivalent section on providers' duties - should be replicated there. The wording is also likely to be an issue. In most cases a group does not "affiliate" to a university or SU, but rather is recognised and approved as a group within the university or SU.

Complaints:

13. As it stands, the Bill would allow someone who suffered "adverse consequences" as a result of action or inaction by the university (or students’ union) which breached the duties to both bring a civil claim and use a new complaints scheme. Buto ne of the common characteristics of a large proportion of the headline-grabbing campus free speech cases is that they also involve equality, diversity and inclusion issues.

14. On one side of a given argument there tend to be individuals saying things that are apparently legal but that students or staff on the other side of an argument argue are harmful and in breach of a particular equality and diversity policy or standard – or at least are said in a way which they argue represents a breach. The person being "cancelled" might use the OfS ombuds scheme - but the students on the other side of these conflicts are likely to use university complaints procedures – which in England can then end inside the entirely separate but similarly worded complaints scheme run by the Office of the Independent Adjudicator (OIA). For students, the issue isn’t a "freedom of speech" or "academic freedom" issue, it’s one of discrimination or harassment.

15. It would make more sense for the well-respected OIAHE to be able to receive (internally exhausted) complaints from more than just students - although there are further complexities surrounding staff complaints that others will be better placed to reflect on.

Duty of care, social media:

16. Much of the debate around "cancel culture" (and indeed the debate on the Bill at second reading) concerns what happens on social media. On one level it should be noted that many of the "free speech incidents" on campus play out on social media and as well as academics and students also involve ex students, members of the public, anonymous trolls and bot farms.

17. As such the Online Safety Bill is an important aspect of the agenda behind the Bill. The notes to the Bill state that:

a. "Alongside illegal content and activity, there are increasing levels of public concern about online content and activity which is lawful but potentially harmful. This type of activity can range from online bullying and abuse, to advocacy of self-harm, to spreading disinformation and misinformation. Whilst this behaviour may fall short of amounting to a criminal offence, it can have corrosive and damaging effects, creating toxic online environments and negatively impacting users’ ability to express themselves online."

18. In other words – as well as the freedom of expression issues for the posters of lawful but potentially harmful content, there are freedom of expression issues for those impacted by the toxic environments that that content can generate. That is a similar debate we see in all of these "mix" cases in universities.

19. In the Online Safety Bill, providers of "user-to-user" services must comply with duties in relation to each such service. First there is an "illegal content risk assessment duty" and a number of "illegal content" duties. These are straightforward – assess the risks of outright illegal material (terrorism, child sexual exploitation and abuse etc) appearing on your platforms and take steps to mitigate, and then have processes in place for the removal of outright illegal material.

20. Then there is a series of duties to protect adults’ online safety, to protect rights to freedom of expression and privacy, to protect content of democratic importance and to protect journalistic content. "Harm" is defined as content whose nature risks directly or indirectly having an adverse physical or psychological impact on someone of ordinary sensibilities. This could be by indirectly resulting in physical injuries or by directly or indirectly resulting in a significant negative effect on the mental state of an individual – and could include causing feelings such as serious anxiety and fear; longer-term conditions such as depression and stress; and medically recognised mental illnesses, both short-term and permanent.

21. Another section provides that content may be harmful due to the way in which it is disseminated, even if the nature of the content is not itself harmful, for example, repeatedly sending apparently innocuous content to a user could be bullying or intimidating. In determining whether content is harmful, a provider will also have to take into account how many users could be encountering the content on the service and how easily, quickly and widely the content can be disseminated on the service.

22. That is all then balanced by freedom of expression and democratic importance duties. Clause 12 in the draft Bill for example states that when designing and implementing their safety policies and procedures, all providers of regulated user-to-user services must have regard to the importance of protecting users’ rights to freedom of expression. And crucially the complaints duty – supervised by OFCOM which can hear appeals – then integrates the duties:

a. "The complaints duty includes complaints about regulated content, complaints about a provider not complying with their safety duties or their duties in relation to freedom of expression and privacy, democratic content and journalistic content. This also includes complaints about action a provider has taken in relation to regulated content such as taking down or restricting access to that content and suspending or banning a user from using the service as a result of that content."

23. Given the wider concerns about student (and staff) safety – including repeated exhortations from ministers for universities to get their house in order over duty of care issues – it should not be impossible for the Bill to be amended to integrate "freedom of expression" issues into a wider "duty of care" duty on universities that runs parallel to and is similar in nature to that proposed in the draft Online Safety Bill.

24. It would set out similar risk assessment duties (which would in part reflect those in the draft OfS harassment and sexual misconduct statement of expectations), similar duties on freedom of expression, and similar complaints handling standards – with an integrated approach ending up at the OIA. Statutory guidance could also help providers consider carefully where the line is between freedom of expression and student/staff protest on the one hand, and harassment on the other.

July 2021