Michelle Donelan on free speech at Durham

Most days we get hopelessly identikit answers to questions – but on Wednesday there was an answer from universities minister Michelle Donelan that deserves more scrutiny than usual.

Julian Lewis, MP for New Forest East, asked:

To ask the Secretary of State for Education… what steps he plans to take to block reported proposals by Durham University Student Union to (a) vet in advance external speakers invited to address student societies, (b) require such speakers to submit their speeches to the Union in advance and (c) cancel the invitations to such speakers or require that additional speakers should also be invited; what the legal basis is for student unions to exercise such powers against speakers whom they judge to be controversial; what recent assessment he has made of whether universities are meeting their obligations to (i) protect freedom of speech and (ii) exercise any necessary restrictions on speaker invitations by student societies which pose an identifiable threat to students on campus; and what assessment he has made of whether those obligations require review.

Admitting that she’d not actually checked the detail with Durham (University or SU) as she opened her answer with “if it has been accurately reported in the press”, she went on to argue that the decision is “gravely disappointing and not in line with our high expectations for universities in this area”.

She continues:

To give a student union this power over external speakers is wholly inappropriate: no university should ever grant a student union any authority or role in vetting, limiting or otherwise overseeing which external speakers may be invited to speak on campus, or under what circumstances they may do so.

This is, of course, absolutely preposterous. As the Charity Commission notes, some SUs treat clubs and societies as components of the SU and some treat them as independent entities, which are affiliated with the SU. For most of the SUs which are registered with the Commission, their clubs and societies are linked to the SU in its constitution. The SU is legally responsible.

Even with clubs and societies which are constitutionally independent, if the SU funds the clubs and societies, the commission says that SU trustees will need to have oversight of them to ensure that the provision of this funding is furthering the educational objects of the SU.

That Charity Commission guidance has a section on speakers at events, and refers readers to a specific section applying to SUs and debating societies.

It expects that charity trustees have in place procedures that consider the risk posed by charity events, and that (for example) steps are taken to identify when external speakers might present at an event and that checks are made on people that are planned to speak at an event.

As such the Commission expects that when handling these sorts of issues, there are procedures in place to monitor, examine and make judgements on the activities of societies and their event; that there are opportunities for the trustees to consider the range of legal responsibilities that are placed on them, including both the university’s requirement to secure freedom of speech and other legal considerations on the trustees (such as the need to consider risk and follow union policy) when making judgements about what can or cannot happen in the name of or under the auspices of the union.

Anyway Donelan continues:

Although it is true that when considering external speakers, higher education providers should, under the Prevent duty, consider the risks that the event may pose in drawing students into terrorism, this must be balanced against their duty to secure freedom of speech; it is only rarely that speakers will form into this category, and applying intrusive procedures on a blanket basis, such as asking all speakers to submit their speeches in advance, is unnecessary and inappropriate. In the vast majority of cases these risks can be mitigated without shutting down speech. In any case, to outsource such decisions to a Student Union, giving them de facto control of who can speak on campus, is completely unacceptable.

The Charity Commission guidance requires that SUs take a measured and proportionate risk-based approach in the organisation of events. The more frequent the events and/or the greater the concerns, the more they have to do to provide sufficient assurance that their decisions to allow speakers a platform (including through constituent or affiliated student groups) are in the best interests of the charity and furthering its purpose.

It advises that they should establish systems to assess the risks and benefits of running events, including:

• why the event is in the charity’s best interests
• whether the charity may be drawn into activities that: are outside its purposes; do not comply with the public benefit requirement; are a misapplication of funds
• whether the event may breach the legal/good practice requirements on political activities and campaigning
• what benefit or detriment there may be to the charity’s reputation, which may include an impact on the charity’s independence or credibility
• the costs and financial risks
• the risks attached to the specific event, and how these might best be managed and the cost implications in doing so
• any unintended consequences
• how best to evaluate the event’s success and impact

As such it advises that some of the steps that SUs can take that will help them to manage the risks include:

• having clear risk assessment and decision-making policies and procedures for inviting speakers (internal and external) to events
• having clear criteria for deciding if a speaker is a cause for concern
• where other organisations are closely associated with an event, the risk assessment should include an evaluation of the suitability of the charity’s relationship with them and of being linked to any of their promotional material
• carrying out due diligence checks on potential speakers and partner organisations, including basic checks that aim to establish the extent of the risk of the charity directly or indirectly promoting inappropriate or extremist views
• if a risk assessment identifies a sufficient cause for concern, considering obtaining and assessing a copy of the speech before giving approval for the speaker to deliver it
• providing a written briefing for speakers that sets out the SU’s requirements of speakers and their conduct at an event. The briefing should make speakers aware of: the SUs charitable purposes, its charitable status; and, the key factors which they should consider to ensure that their contribution is consistent with the charity’s purpose.

It also advises that SUs:

• ensure they do not do anything that could bring the name of the SU as a charity into disrepute or damage public trust and confidence in it;
• do not encourage, glorify or promote any acts of terrorism, including any individuals, groups and organisations that support such actions;
• do not incite hatred or violence or call for the breaking of the law;
• do not spread hatred and intolerance in the community;
• be careful not to be unnecessarily divisive or denigrate faiths, racial or other groups;
• consider how to facilitate the right to reply to various points or views raised and whether they should intervene and challenge if inappropriate comments are made;
• ensure there are clear procedures in place for dealing with an incident/complaint and for taking action, including where relevant, disciplinary action, if the charity’s policy and rules which govern decisions on inviting speakers are breached;
• record decisions made on inviting speakers and where appropriate the reasons why, particularly where they may be controversial, and the factors that were considered.

We did explain all of this in Taking the Debate Forward, (for which Michelle provided a supportive quote!) but this is getting silly now. Even if you ignore the motivations and the politics, if ministers want to quibble with the guidance from the official regulator (the Charity Commission) then they should go ahead. But they should also bear in mind that the guidance for SUs was rewritten by the Charity Commission in the wake of Sam Gyimah holding a round table on all of this.

In any event, the idea that the SU should “outsource” its legal duties in the way described will be highly problematic for those charged in law with looking after Durham SU as a charity – its trustees. And constantly putting individual SUs in this position is profoundly unhelpful. What are SUs supposed to do – ignore the Charity Commission, or ignore ministers?

Donelan goes on:

At my request, officials have asked the Office for Students, the independent regulator, to investigate this matter and have also contacted the Vice Chancellor of the university to express my concerns.

Maybe former Durham SU student officer James Wharton can plot a sensible way through this when be takes up his job as Chair of the Office for Students.

The SU should ask the Charity Commission to investigate its perfectly sensible and proportionate proposals that look to me to be designed to secure free speech, and then discuss with Donelan, DfE and the Office for Students. And when the grown ups have finished having their odd, passive aggressive row through student organisations, perhaps they can get back to the rest of us.