5The way forward
96.This inquiry began as an attempt to find out if the Government was right to be concerned about freedom of speech in universities, and, if so, whether its approach to securing free speech was the correct one. We have discovered there are inhibitions on free speech, which come from a number of sources. In April this year, the OfS will begin to take responsibility for this in universities in England.
97.The Government expects OfS to take an interventionist approach to monitoring freedom of speech,125 while Sir Michael Barber told us that the OfS would like maximum freedom of speech within the law but it will not be “interfering endlessly on this” adding that he did not expect to use the range of powers that the OfS will have at its disposal. It is important that the Government and the OfS talk to each other about the OfS’ approach to promoting freedom of speech, especially given that our inquiry has revealed the following things:
- the level of students restricting each other’s free speech is not a universal problem but whilst most student union officers who responded to our survey say that they are confident that they and their companions can speak freely, we have ascertained that, as outlined in this report, there have been, and continue to be, unacceptable incidents, and such disincentives could be having a wider “chilling effect” on free speech which is hard to measure. A much broader survey of students’ opinion would be needed to assess levels of confidence amongst the student body as a whole;
- some groups have expressed concerns about the OfS’ role in monitoring freedom of speech in respect of the impact this could have on institutional autonomy. Universities UK and London South Bank University have expressed concerns around the OfS becoming a regulator of free speech, arguing that it would compromise the autonomy of universities. Sir Timothy O’Shea told us that the OfS’ proposals appear to be a move towards “increased bureaucratic intervention and a possible decrease in university autonomy” neither of which he said are productive.
98.We welcome the OfS’ strong support of free speech. We would expect the OfS to intervene if problems emerged at particular institutions. They should ensure that university policies do not inhibit legal free speech and are not overly burdensome. To help facilitate this, the OfS should have an accessible means of feedback for students to report incidents of intimidation and issues related to free speech, on which the OfS could act as an arbiter between the students, student unions and universities. The OfS should also visit universities that have faced issues regarding freedom of speech, and ensure universities and student unions are respecting this right. The OfS should report annually on free speech in universities, including naming when universities have been non-compliant with their responsibility to secure free speech, under the Education Act 1986.
99.Until recently, the Government’s approach has been strong on rhetoric, but short on clarity. There are welcome signs that this is changing. We noted the conflicting guidance from Government itself in terms of higher education bodies’ duties to secure free speech and, under the Prevent duty, to mitigate risks of nonviolent extremism; we also noted the conflict between the Charity Commission approach and the free speech duty. In addition, there is guidance for student unions from the NUS, and the various policies set out by individual universities. This plethora of material is likely to confuse both university administrators and student unions.126 We put our concerns to the Universities Minister who agreed that more clarity was needed:
“The Committee is right to point this out. You have the 1986 Act; a new regulator, the Office for Students; the Charity Commission; the autonomy of universities; and within universities you have the NUS, but you also have clubs and societies. I am holding this summit to thrash out not only where the responsibilities lie but to make sure that they do not cut across each other and in so doing achieve the opposite of what all these guidelines are meant to achieve, which is to promote free speech.”127
We also noted his view of the Charity Commission guidance where he welcomes the commitment to clarify its guidance but noted:
“I think it needs to go further and facilitate the promotion of free speech. It should be giving student unions the permission to host debates about controversial issues and expose students to a wide range of viewpoints. That should be the core purpose”.128
100.It is welcome that the Government is taking a broad look at the policy context for freedom of speech, and that the Minister plans to hold a summit with key bodies to work out where responsibilities lie and how all bodies can work together to promote freedom of speech. The Government should ensure that all bodies with an interest in this area, such as the EHRC, are included in this summit to ensure a joined-up approach across the different bodies. Moreover, although we understand that this is a complex area, the Government should consider whether there is any case for the OfS to take over the regulation of student unions rather than the Charity Commission.
101.This dialogue, and intervention to ensure that the Government itself and associated regulatory bodies are working coherently, is long overdue. The Government should ensure that all relevant organisations are included in this process. Both the Prevent duty guidance for higher education institutions and the Charity Commission guidance to student unions should be reviewed. The Government should take the lead in encouraging all the bodies involved in this field to produce coherent, consistent and accessible guidance and material by January 2019 at the latest, paying full attention to the extent of universities’ legal responsibilities to secure free speech.
102.The OfS will not take up its full regulatory role until 2019. In the meantime, clear guidance on the importance of free speech and in the legal restrictions upon it is needed. We have ourselves published guidance to assist student bodies and societies, universities (and the Charity Commission) which need to decide where the boundaries lie, and we have annexed it to this report.
126 Q29 (Aileen McColgan): “but a university administrator sitting in his or her office trying to work out how to keep all these balls in the air is not well served by the guidance. Having a single piece of guidance which would pull together freedom of expression implications, the public-sector equality duty, the Prevent duty and give some practical guidance would be massively helpful.”
Published: 27 March 2018 by authority of the House of Commons and House of Lords