Thursday 23-09-2021 - 10:42

You may have seen that a Higher Education Freedom of Speech Bill is being brought forward by the government. Here Jack Ballingham, your Opportunities Officer, explains what the Bill is, its possible effects for students, and what Durham SU are doing about it.

What will the Bill do? 

The Higher Education (Freedom of Speech) Bill is a piece of legislation brought forward by the government, which aims to “strengthen academic freedom and free speech in universities”. As well as universities, the Bill lays out new requirements for students’ unions, including: 

• Creating a new duty for SUs to “secure freedom of speech within the law” for members, staff and visiting speakers 
• Requiring SUs do not deny the use of premises, or give use of premises, on terms influenced by a person’s ideas, beliefs or views, for holding meetings and events 
• Requiring SUs maintain a code of practice, setting out their values relating to free speech, and the procedures to be followed by members, staff and visiting speakers when holding meetings 

In relation to governing these new requirements, the Bill: 

• Gives the Office for Students (OfS) the function of promoting free speech and academic freedom, including at SUs 
• Gives the OfS the power to monitor SUs’ compliance with their new duties, and to impose fines where they do not comply 
• Creates a new role of “Director for Freedom of Speech and Academic Freedom” at the OfS, with responsibility for overseeing the OfS’ new free speech functions 

What does the issue really look like? 

The government claims, in a white paper from February 2021, that there are many instances of “no platforming of speakers and protests against academics or students who have expressed lawful, if controversial opinions”. This is simply not backed up by the facts. The OfS’ own figures for the 2019-20 academic year showed that, out of a total of 43,337 events involving external speakers, only 94 were rejected: 0.21%. During the 2020-21 academic year at Durham, the SU received applications for 120 events involving guest speakers. None were rejected. 

It is also claimed that there is a “chilling effect” on free speech at universities and SUs, through which people feel unable to express their views and “self-censor” themselves. The government cites a study by King’s College London to demonstrate this. The KCL study, however, does not link this to events, debates or visiting speakers, or to any specific practice in institutions. If a “chilling effect” does indeed exist, it is not clear how this Bill’s new provisions would address it. 

A new role for the Office for Students 

The new role of the OfS also raises issues with the Bill. SUs have not previously been regulated by the OfS, and have instead been regulated mostly by the Charity Commission. The Bill does not clarify how the relationship between these two regulatory bodies should be managed, especially where they may clash.

They may clash, for instance, on the meaning of “free speech within the law”. The Bill’s definition of free speech, to be governed by the OfS, suggests all speech which is not illegal should be protected. Charity Commission guidance for SUs, meanwhile, requires that SUs consider things like protecting the institution’s reputation when managing events. How these duties relate to each other is left unclear, and is likely to cause confusion and take up time for SUs and societies.

This confusion is also likely to come with a price tag, as SUs seek legal advice to clarify what their duties really are. The government itself puts the cost of implementing this Bill at £48.1 million over ten years, a cost which will fall entirely on SUs, universities and other HE providers. The government intends to provide no funds for this. We must question whether this is a good use of institutional funds in the HE sector, at a time when the government is axing financial support for teaching qualifications, and the arts, humanities and social sciences, and universities are forced to close courses. 

The creation of the new “Free Speech Director” comes with enormous risks. This “Director” will have responsibility for overseeing the OfS’ new free speech roles, and is to be appointed directly by the Secretary of State for Education. There is no provision for the accountability of the Director, and no requirements stated for their qualification. The OfS already has an unfortunate track record with appointments like this. Toby Young, after being appointed to the OfS’ board in 2018, resigned after a week when his views were brought to public attention. The current chair of the OfS, meanwhile, is James Wharton, a Conservative member of the House of Lords. Wharton is also a former Conservative MP, and formerly the manager of Boris Johnson’s party leadership campaign. When he took up the role at the OfS, he refused to resign the government whip in the House of Lords. There is every reason to believe the appointment of this new Director will be just as, if not more, politically motivated, carrying the very real danger that whoever holds the role will function as the government’s own political officer within the higher education sector. 

The Bill in context 

Besides these details, it is crucial to consider this Bill in the wider context of the government’s legislative agenda. It comes at the same time as several other pieces of legislation, all of which extend the government’s powers over civil society and dissent. The Police, Crime, Sentencing and Courts Bill will give the police sweeping powers, including over protest. It has changed trespass from a civil to a criminal offence, punishable by the confiscation of property, including vehicles. This move will effectively criminalise the way of life of Gypsy, Roma and Traveller communities. The Covert Human Intelligence Sources Act 2021 has given the security services the ability to commit crimes in the course of undercover surveillance of groups. State spying operations have been carried out in the past against trade unions, peace groups, and, pertinently, the National Union of Students. Where these two laws seek to expand the power of the government against sources of dissent and opposition, the Higher Education (Freedom of Speech) Bill we are now faced with attempts to do the same, advancing the power of the government in higher education. Universities and students do not often agree with the government’s view; this balance is now to be redressed by an Act of Parliament. Perhaps this is the real “chilling effect”. 

What Durham SU is doing 

For these reasons, Durham SU has made a submission to the Public Bill Committee for the Bill, setting out our criticisms of it. Our submission explains the flawed justifications for the Bill, the situation at Durham, and lays out the questions we have about how the Bill’s provisions will operate. It suggests several changes to the Bill, including clarifying that SUs and universities will not face penalties where events have been cancelled due to circumstances outside of their control, and a proposal for proper accountability for the Free Speech Director. You can read our submission here. We also wish to express support for the National Union of Students’ proposed amendments, which are laid out in a briefing you can find here.