Higher Education (Freedom of Speech) Bill

Written Evidence Submitted by Birkbeck Students’ Union (HEFSB24)

re: the Higher Education (Freedom of Speech) Bill

Executive Summary

· Birkbeck Students’ Union is one of the founding members of the National Union of Students, with over 100 years of experience representing students at a national level and within Birkbeck itself, and represent a diverse body of students.

· We are concerned that the Higher Education (Freedom of Speech) Bill may risk creating a hostile environment within universities in the UK, and risk undermining the Equality Act and our ability to uphold our charitable objects as well as perform our duties under Prevent.

· The Bill is politically motivated and fundamentally misunderstands the concept of safe spaces. Safe spaces do not prohibit freedom of speech within a Students’ Union.

· Safe spaces provide a space for students of a specific protected characteristic or other grouping to gather together where they can be assured that they will be respected, that their speech will be respected and that they will not suffer discrimination. Therefore, they are necessary in carrying out our duties under the Equality Act.

· We do not and will not have no-platforming policies and already work to ensure that a diverse range of voices are heard within the College. Freedom of speech also includes the freedom to challenge speech that is damaging or exclusionary, especially to students with protected characteristics under the Equality Act.

Introduction

1. Birkbeck Students’ Union was founded in 1907 as a representative body for Birkbeck, University of London, and was one of the founding members of the National Union of Students. We have over a hundred years of experience providing support and advocating for students at a national level and within Birkbeck itself, and represent a diverse body of home and international students.

2. We are concerned that the Higher Education (Freedom of Speech) Bill is politically motivated and will create a hostile environment within universities in the UK, where staff and students’ unions feel unable to challenge or report hate speech and harmful rhetoric for fear of reprisals from the Office for Students, and the Director of Freedom of Speech and Academic Freedom.

3. Furthermore, we were concerned that the passage of the Bill as it stands may inhibit our ability to carry out our charitable aims or objects – specifically, to represent our students, to promote their interests and welfare, and to provide forums for discussion and debate – and our duties under Prevent and the Equality Act. If we are not able to challenge speech on the grounds that it is hateful or damaging to our students, we will be unable to promote their welfare and debate will become difficult, if not impossible.

Evidence

4. In Birkbeck’s experience, there is no freedom of speech crisis in universities cross the UK. In the government’s "case for change", they argue that the addition of "safe spaces" and "no-platform policies" in university and/or Students’ Unions attempt to "shut down legitimate freedom of speech". This is simply untrue and the government appears to be have a fundamental understanding of the concept of a safe space. Safe spaces do not prohibit freedom of speech within a Students’ Union. They provide a space for students of a specific protected characteristic or other grouping to gather together where they can be assured that they will be respected, that their speech will be respected and that they will not suffer discrimination. Therefore, they are necessary in carrying out our duties under the Equality Act. We offer safe spaces to promote freedom of speech, not to restrict it, to offer places where students can speak without fear of censorship or harm. Students’ Unions have a duty of care for our students – as exemplified by our charitable objects, which state that we must promote students’ welfare – and safe spaces are one element of our efforts to uphold our charitable objects. However, we do not ban individuals from safe spaces and we do not stop them from speaking; we merely ask that they refrain from speech that will cause harm to the inhabitants of that space. It is not reasonably practicable to ask us to share our platform or force members to share a space with those who would speak in such a way as to harm them.

5. We offer spaces and networks for students with specific protected characteristics, such as women and Black students, which often run events with those students in mind. However, we do not prohibit students from other walks of life and with other characteristics, protected or otherwise, from attending those events, as we believe that it is in their best interests to learn about issues that affect others and to expose students to as many viewpoints as possible. Furthermore, our societies reflect the diverse nature of our student body, including different religious groups, political groups and activist groups. We also regularly offer opportunities for students to voice their opinions via focus groups and surveys, as well as our student council, at which any student is welcome.

6. We do not have a no-platforming policy and do not intend to institute one, as we believe that plurality and diversity of opinion is essential. For example, if an officer invites members of a political party and/or political candidates to speak, then members from other parties who want to speak as well must be permitted to also speak. The NUS currently has a mere six organisations on its no-platform list, including Islamic extremists and jihadi groups, and white nationalist terror organisations. We would not be required to host speakers from any of those groups under the Bill as it would already be prohibited by law. Birkbeck Students’ Union encourages diversity of opinion and freedom of speech, as exemplified by our commitment to decolonization, a practice that seeks to add voices that were previously unheard to the curriculum, while not removing those that are already represented. We would argue that the government’s proposals are rendered unnecessary and disproportionate, as no-platforming – at least as it appears to be understood by the government – is not happening. Furthermore, the government has in place existing legislation to prevent terrorist organization from promoting their views and to protect protected characteristics against abuse, so the government’s proposals to ‘protect’ freedom of speech have the potential to undermine existing legislation.

7. Birkbeck Students’ Union proactively recruits a diverse team of officers to represent students from across the university with no stipulations concerning a person’s beliefs, ideas or views. This is important as we have a uniquely diverse body of students at Birkbeck, who deserve to have the most representative team of officers working for them as possible. Birkbeck is an evening university that seeks to recruit students who would not otherwise be able to attend a higher education institution due to work or family commitments, non-traditional prior qualifications or a lack of prior qualifications, and those from under-represented backgrounds. We are also designated a sanctuary university for asylum seekers. This means that a large proportion of our student body are mature students, international students and part-time students, from all walks of life and with a wide range of beliefs, ideas and views. Every single student deserves a voice and we look to make that happen as best we can. We also work to recruit a diverse staff complement for the same reasons.

8. In order to fulfil our charitable objects, we are required to represent students to the university. This must include all students, including those belonging, for example, to anti-racist groups who wish to challenge racist and/or anti-migrant speech from lecturers or outside speakers who have been given a voice on campus. The provision in the Bill creating a new "statutory tort for breach of specified freedom of speech duties" may have a chilling effect on our ability to do so, as it potentially provides an opportunity for racist lecturers, for example, to retaliate against Student Unions who call them out. This could further create a hostile environment within universities in the UK, where staff and students’ unions feel unable to challenge or report hate speech or harmful rhetoric for fear of reprisals from the Office for Students, and the Director of Freedom of Speech and Academic Freedom (and may risk undermining the Equality Act). However, if they have the right to speak harmful words, then we have the right to speak out against them. Students’ Unions are regulated by the Charity Commission as well as the Office for Students, and have to abide by our charitable objects under their regulations. By providing for regulation by the Office for Students, the Bill potentially puts the two regulators in conflict, if and when the Bill prohibits Students’ Unions from carrying out its charitable objects.

9. We have a duty, under our charitable objects, to provide forums for discussion and debate but the Bill must make it clear that this does not include allowing speech that will actively harm students. Equality policies that state that homophobic, sexist or racist speech, for example, will not be tolerated are necessary for protection of diversity and equality, and do not prevent students or staff’s voices being heard elsewhere on campus. To do otherwise, would risk undermining the Equality Act and this Bill could make it harder for us to safeguard students with protected characteristics, unless it is made explicit that the provisions within the Bill do not apply when directly in conflict with our charitable objects.

10. Finally, our duties under Prevent require us to prevent individuals from being drawn into terrorism, requiring us to report academics whose speech within their classes could radicalize or has radicalized their students. Radicalization will not always manifest as encouragement to terrorism and/or inviting support for a proscribed terrorist organization, both of which are illegal, especially as many right-wing, nationalist groups are not proscribed terrorist organisations, despite engaging in acts of terror. Therefore, the duties set out in the Bill could come into conflict with our duties under Prevent, especially if the Bill does not set out stricter guidelines as to its application.

Recommendations

11. The Director of Freedom of Speech and Academic Freedom should be a neutral party, not a political appointment.

12. In order to allow Students’ Unions to carry out their charitable objects, it should be stipulated that the provisions within the Bill do not apply when directly in conflict with those charitable objects. The Bill should further stipulate that the provisions within the Bill do not apply when directly in conflict with Student Unions’ duties under Prevent or the Equality Act 2010.

13. The term "reasonably practicable" should be made more specific to avoid a chilling effect on freedom of speech within universities and Students’ Unions who may no longer feel able to challenge hate speech or harmful rhetoric, such as anti-migrant or transphobic speech.

14. There should be a maximum financial penalty – this would go towards preventing malicious use of the provisions of this Bill to create a chilling effect on small universities and students’ unions – such as Birkbeck Students’ Union – which would be unable to pay large fines.

15. Consider whether the regulatory framework provided by this Bill will be efficient enough. It is unclear as to what will happen should individuals choose to complain to more than one regulatory body; whether regulation through OfS directly rather than through the university is practical; and how the decision making by OfS will be moderated.

16. Clarify issues around consistency. The Charity Commission already provides extensive guidance for students’ unions. Will the OfS make clear what the boundaries of acceptable speech are; if not will the presumption be Charity Commission guidance; if so how will it interact with Charity Commission guidance. Equally, we are concerned that additional penalties could 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.

17. The Bill is unnecessary and risks creating a hostile environment on university campuses, and should not be allowed to pass without extensive amendments or should be scrapped in its entirety.

September 2021