Higher Education (Freedom of Speech) Bill

Written evidence submitted by the National Union of Students UK and the National Union of Students Charity (HEFSB18)

Higher Education (Freedom of Speech) Bill 2021

Introduction to NUS

This submission is provided by the National Union of Students UK and the National Union of Students Charity. The two organisations have been representing students for over one hundred years. NUS Charity supports students’ unions with capacity building and advocacy while NUS UK works with students’ unions and their members to champion student leadership.

Executive Summary

1. Effective legislation on Freedom of Speech requires careful attention to the wide range of existing laws which govern higher education institutions, students’ unions as charities, and public sector organisations. Failure to provide an effective legislative framework would not only render the laws ineffective but leave universities and students’ unions open to multiple and conflicting legislative actions.

2. Equally, the number of routes open for complaint could lead to unsatisfactory outcomes for complainants, and additional bureaucracy for students’ unions. Currently, depending on the nature of the complaint, freedom of speech issues will be overseen by the Office for Students, Office of the Independent Adjudicator, Charity Commission, and ultimately the civil justice system. The potential cost associated with navigating the plethora of bodies will only discourage students’ unions from hosting events.

3. Students’ unions are amongst the most persistent enablers of free debate, discovery, and open discussion, of any part of civic society. Every year, tens of thousands of speakers are visiting university campuses unimpeded, and students’ unions are central to providing venues, resource, and staff, to enable these events to happen.

4. The evidence of a chilling effect on freedom of speech is overstated. OfS’ own data suggests that on average in any given year less than 1% of speakers will be prevented from speaking. Overwhelmingly, the reasons for this are administrative or cost. The most recent research into students’ union events demonstrates that of 10,000 events taking place only 0.06% were cancelled.

5. William Shawcross, the Independent Reviewer of Prevent, in a letter to the Guardian notes that he wants to "hear the case for and against Prevent based on evidence that can be tested." Through this process of reviewing Freedom of Speech legislation, Government should do likewise. Students’ unions have long believed that the Prevent duty disproportionately impacts the freedom of speech of Muslim students and staff.

The Current Legislative Landscape

6. Universities are already governed by a wide range of laws which interact with the notion of freedom of speech. Section 43(1) of the Education (No.2 Act) 1986 requires higher education providers to take "reasonably practical" steps to protect freedom of speech. Section 202 of the Education Reform Act 1988 provides that "academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions." The Higher Education Act 2017 imposes protecting academic freedom as a duty, and a breach of such would be a reportable event to the Office for Students.

7. There are also a number of other statutory provisions which impact on freedom of speech. For example, The Public Sector Equality Duty requires universities, as public bodies, to take affirmative actions to promote the needs of protected groups where these are different to the needs of other people. The Equality Act 2010 protects staff against dismissal for philosophical belief. Section 29 of the Counter-Terrorism and Security Act 2015 (Prevent) places an obligation on universities to have "due regard to the need to prevent people from being drawn into terrorism".

8. In addition to a requirement to adhere to the Equality Act students’ unions as charities are also governed by charity law. The Charity Commission believes that encouraging broad debate is an important use of charitable resource. However, as the Equality and Human Rights Commission make clear, this should not be for the purpose of "unchallenged hatred or bigotry." In addition, the 1994 Education Act and associated charity legislation provides students’ unions can only deploy their resources for issues which impact "students as students".

9. The Charity Commission already provides extensive guidance for students’ unions. This include a change of focus to this guidance after the Joint Commission of Human Rights in 2018 so that guidance "sufficiently stresses what charities can do, and supports trustees in recognising, managing and mitigating risks to their charities".

10. Among the changes to the Charity Commission's guidance was to reaffirm the importance of freedom of speech to charities with the purpose of advancing education. It also stressed the importance of charities in supporting their trustees to manage some of the challenges associated with hosting potentially controversial speakers and debates. [1]

The State of Freedom of Speech

11. University campuses are a place for rigorous debate and the fair exchange of ideas. No more so is this debate evident than in the tens of thousands of events students’ unions up and down the country facilitate every year. Freedom of speech is important to students and students’ unions. Overwhelming evidence suggests that students’ unions are enabling, not curtailing, student’s ability to express their views freely through events, societies, lectures, and other such opportunities to engage with ideas.

12. The Office for Students official figures show that 0.09% events or external speakers were blocked in 2017-18, only 0.2% of 59782 events in 2018-19 and 0.2% of 43337 events in 2019-20 were rejected. [2]

13. A Wonkhe survey of 61 university students’ unions in December 2020 found that in 2019-20, six events from almost 10,000 involving an external speaker (0.06%) were cancelled, with four of these cancellations being the result of a failure to meet administrative requirements. One cancellation involved a pyramid scheme fraudster, and the other was moved to a larger venue because it was a rally featuring then-Labour-leader Jeremy Corbyn. [3]

14. In 2018 the OfS concluded that "we currently see no cause, in the information being reported to us, for concern that the sector or individual providers are not balancing their freedom of speech responsibilities with the Prevent duty, or indeed other legislation such as health and safety". [4]

The Current and Coming Complaints Process

15. Currently, the rights of students generally are protected by the Office for Students as the regulator of higher education institutions. As individuals, students’ rights are protected by the Office of the Independent Adjudicator (OIA) who provide recompense where a providers’ internal complaints processes are exhausted. This is in addition to the protections provided by the Consumer Markets Authority who can intervene where a students’ contractual rights with their education provider have been breached.

16. The Bill introduces a fourth body. The proposed complaint scheme in the Bill will be overseen by OfS. OfS will be empowered to take actions such as imposing a monetary penalty where they believe there has been a breach of regulations.

17. The Bill also introduces a new statutory tort where an individual may seek damages against a university or students’ union where they believe their freedom of speech has been curtailed.

Concerns with the Proposed Complaints Process

18. The multiple routes for complaint will inevitably lead to confusion for complainants. For example, if a student believed a speaker they had invited had been unduly prevented from speaking it is not clear whether they would pursue a) an internal complaints process then the OIA b) a complaint directly to the OfS c) a consumer rights complaint if they believe freedom of speech constitutes a legal right or d) a civil claim for damages.

19. Universities currently oversee the discharge of students’ unions freedom of speech duties. The Bill introduces a new requirement that students’ unions introduce their own code of practice on freedom of speech. It’s not entirely clear how a separation of responsibilities will protect freedom of speech.

20. The ability to seek legal recourse is not yet clearly defined. To raise a claim a complainant would have to demonstrate they have suffered damages. It would be usual practice to define a threshold for such damages and a limit to the damages that can be pursued. It would be an inefficient use of public funds to tie universities and students’ unions in persistent litigation.

The Practical Consequences of the Bill

21. The Prevent Duty already demonstrates the impacts of additional requirements placed on students and students’ unions. While only 0.02% of the total number of events or speakers were cancelled at universities in the past year, latest OfS data shows that between 14-21% "Prevent related events" received mitigation or conditions placed on them between 2017-2020, demonstrating the significantly more widespread effect of Prevent.

22. This is just the tip of the iceberg however, as a far higher number of events/speakers do not make it to the point where they would be included in these figures. This is due to the additional scrutiny brought about by the need for compliance. This includes events that were "timed out" by the bureaucratic process, those that were informally rejected before they got to the stage that they were officially recorded, or that organisers themselves decided not to pursue on account of the chilling effect.

23. NUS’ own research showed that one third of Muslim students had been negatively affected by Prevent. Of this group 30% had organised events that were cancelled or significantly changed because of it and a further 43% felt unable to express their views or be themselves. [5]

24. It would be likely that this chilling effect would be more widely spread if a more general duty is introduced. The routes for legal redress are open for speculative claim against students’ unions and that ironically, it is likely this will lead to fewer events, not more, as universities and students’ unions seek to reduce their risk of litigation as any charity with good governance structures and processes would.

25. Equally, that additional penalties imposed by the OfS will mean that students’ unions are less able to fulfil their charitable functions as they invite fewer speakers with less diverse views in order to avoid the risk of large fines should the speaker attract controversy. This will be compounded by the absence of a clear definition of what constitutes un/acceptable speech.

26. With the associated or potential cost of speakers likely to rise with the Bill, this will impact affordability and ultimately result in fewer speaking opportunities representing a narrower pool of perspectives.

Proposed Amendments and New Clauses

In working to secure freedom of speech for students within a framework suitable for students’ unions and students NUS UK and NUS Charity proposes the following amendments

27. To move the following clause: before exercising the duties in clause four the Secretary of State must first set out a complaint route which articulates which regulatory bodies in which order students, university staff, organisations, and individuals, should pursue when making a complaint relating to freedom of speech.

28. Clause 69B, page 7, line 7, insert "This penalty will be limited to a maximum amount set out by the Office for Students decided in consultation with universities and students’ unions."

29. Clause 3A1, page 11, line 22 insert after OfS "and an advisory board consisting of sector bodies".

30. To moving the following clause 3A (1)(d): "providing an annual update made available to students’ unions and higher education institutions on a) the number and nature of complaints made to OfS regarding freedom of speech and b) examples of what OfS believes to constitute unacceptable infringements of freedom of speech as set out in this Bill.

31. An amendment to the Long Title of the Bill, at the end of the title insert "and for supportive conditions to ensure it is exercised equitably."

September 2021

 

Prepared 16th September 2021