For SUs, free speech regulation is a terrible mess

Despite repeatedly saying that he won’t get into hypotheticals, the Office for Students (OfS)’ director for freedom of speech and academic freedom, Arif Ahmed, has been promoting the regulator’s consultations on Twitter by getting into hypotheticals.

In one, a politics undergrad wants to use her coursework to defend a certain position on a controversial topic, but her if her professor urges her to not write the essay or mark the essay down because they disagree with the point of view being put forward, that could possibly be the subject of free speech complaint.

In another, if a university is about to sign a lucrative contract with another country and a professor wants to do research on the human rights record of that country, if the university pressures them to drop that research, that could also raise free speech concerns, and so could be the subject of a complaint.

📣 Students, we want to hear what you think
Share your views on our proposals for a new free speech complaint scheme and approach to regulating relevant SU’s
Register for our online events to hear more: https://t.co/w9zmIJ0oDy
Respond to our consultations: https://t.co/WJjouAgutQ pic.twitter.com/geqFS1hzvj

— The Office for Students (OfS) (@officestudents) February 17, 2024

Notwithstanding that there are some who both in principle and (legal) practice might raise questions about the examples, what’s interesting is that I suspect if could rouse the interest of the person on the Clapham Omnibus to stop worrying about the cost of living crisis for a minute, they’d agree that they both sounded like things the free speech act ought to be tackling.

But not all “complaints” into OfS’ new ombuds service for free speech issues are likely to be so clear cut.

The hopes are up

When the Act was being debated, it tended to set up two types of expectation. One was that universities and SUs would not prevent anyone from speaking unless they were acting outside out of the law. But the bewildering array of laws that might interfere with someone’s free speech rights, and the corresponding political, moral and legal duties on universities and SUs to protect other students by interfering are anything but clear.

The other was about the “chilling effect”. In this narrative some students are (for want of better terms) bullied, harassed or just put off from expressing their views in a “monoculture” of ultra-PC, “social justice warrior” views for fear of criticism, pile-ons and so on. The implication has always been that the Act would stop that too – but insofar as that might interfere with others’ rights to be controversial, the position is also anything but clear.

Then there’s a third expectation – that students’ rights to not be discriminated against, harassed or victimised will remain protected. Both the government and OfS have consistently maintained that these can be compatible with the free speech duty – but, not least given that a number of “culture wars” debates seem to feature controversial views that are apparently protected by the equality act yet for some seem to clash with others’ protected characteristics or beliefs, the position there is anything but clear too.

OfS’ recent confirmation that if an SU “goes too far” in securing students’ free speech rights “over here”, but in doing so might create a hostile or intimidating environment for other students “over there”, then that might be able to be submitted as a free speech complain too, also muddies the waters.

The other thing that’s interesting about Ahmed’s hypotheticals is that they both concern universities and the stuff they do in terms of teaching, assessment and research. That’s perhaps to be expected – that’s the stuff that was being debated in both houses, the stuff that dominated the explanatory notes and impact assessments that accompanied the Bill, and the sort of thing you’d expect the higher education regulator to have some understanding of.

But there’s a whole range of questions, incidents and issues that are much more about student life, and much more closely related to students’ unions than they are universities.

Whataboutery

SUs have questions about elections – and whether candidates in them should be able to engage in a free for all, whether other students should be able to attack candidates for their (protected) beliefs, and whether they can set policies or rules that concern those beliefs.

There’s the question of protests, open letters or campaigns, and when what feels to its participants as an act of free speech impinges on others’ rights of speech and freedom from harassment. There’s the question of whether an SU officer can speak out on a controversial matter – is that free speech, or does it have a chilling effect?

There’s conduct procedures for members, their interaction with or independence from the university’s, and the extent to which SUs should be expected to control the behaviour (one way or the other) of their members or clubs. There’s the question of SU staff – named in the Bill, yet some case law suggests that Civil Servants can be silenced over, say, public comment on politics and elections.

And there’s this whole question over “institutional neutrality” – some are arguing that the new law (and the Code of Practice that will have to be issued to comply with it) should prevent an SU from taking a position on a controversial issue, and some argue that Charity Law does that. Others argue that having a debate on, and taking a position on a controversial issue are the essence of SUs’ democratic role, legally permissible even on issues that don’t affect “students as students”, and a vivid manifestation of free speech.

It all leaves SUs in quite a bind. The laughable Department for Education (DfE) impact assessment (over which it didn’t bother to consult with SUs) both ignored that some SUs the Bill will catch consist entirely of five seventeen year-olds in an FE College, and completely sidelined the numerous complexities that are emerging.

Now – with just five months to go until OfS opens the doors to its new complaints route, it can’t confirm the detail on its new approach to harassment, isn’t clear about the extent and impact of the “balancing” duties on SUs, is holding quiet conversations with mission groups about levels of financial penalties without actually talking to SUs, isn’t keen to offer up hypotheticals that concern them, and accepts that regulating SUs is “an entirely new area for us”.

And given the duty to notify OfS if anything might threaten an SU’s ability to meet the new duties, you might have thought “the university doesn’t give us enough money” would count. But it can’t even confirm that.

All it says is “raise your questions in the consultation”, like that’s ever done any good in previous OfS consultations. And it can’t even commit to publishing the results of its consultation before the summer – when SUs won’t be able to pass new policies or amend by-laws ahead of August 1st.

A judgement in a new legal case both underlines the astonishing complexity of the situation, and offers some potentially challenging perspectives on all sides.

Procedural shortfalls

To read the coverage of the Green Party v Dr Shahrar Ali case, you’d think it was dead simple. “The Green Party has been found to have discriminated against its former deputy leader over his gender-critical beliefs”, said the Telegraph:

A court ruled that the party had improperly dismissed Dr Shahrar Ali – who believes that “biology is real and immutable” – as party spokesman because it had failed to identify any misconduct.

Ali called for the Equality and Human Rights Commission to investigate the Green Party over how it handles trans rights debates. He also said an independent inquiry “into the hostile environment in political parties across the Left” should be set up.

But the detail in that case is anything but straightforward.

Across twenty allegations of “detriment” relating to harassment, discrimination and victimisation by the Green Party, just one was upheld – the one that found a procedural irregularity in the way that Ali was removed from his post as a party spokesperson for policing and domestic safety. The minutes weren’t detailed enough, basically.

The Green Party, like SUs, is a democratic membership organisation that can’t always control the activities of its members. Like SUs, it often takes positions on controversial matters – sometimes that aren’t about the environment – that it then converts into expectations that it places particularly on what its leaders say and so.

It has elections, conduct codes and removal from office procedures where the members often discriminate against candidates on the basis of their beliefs. And unlike universities but like SUs as service providers, as an association, protections from harassment and victimisation under the Equality Act do not apply to religion and belief.

One big issue in the case concerned a branch of the party that published an open letter calling for his removal as spokesperson, citing alleged transphobia. He argued that the accusations were false and a form of discrimination. After bringing the letter to the Party leadership’s attention, no steps were taken to protect him. He argued that their inactivity furthered the discrimination he faced. It’s the kind of thing that could happen in any number of SUs over all sorts of issues.

It raises the question – was he being discriminated against and having his free speech chilled, or were the members exercising their free speech? Where was the line?

It’s your (open) letters

On the one hand, the court found that the open letter was an action independent of the leadership, and not directed or approved by the Green Party Executive – so didn’t hold it responsible.

Nor did the judge expect that executive to have taken action without a complaint. Unlike in the recent OU case that largely featured academic staff signing letters, the judge pretty much accepted that the nature of the organisation was not one of control of members.

But more fundamentally, the judge argued that it can’t have been Parliament’s intention to interfere with the fundamental democratic rights of members to debate things.

He noted that one interpretation of the Equality Act was that it forbids any form of unfavourable treatment based on belief. But he also noted that that kind of strict interpretation would contradict the “democratic principles of the United Kingdom”, the safeguards established in the Human Rights Act, and other laws and regulations regarding elections:

For example, once every five years, throughout the United Kingdom, voters engage in an act of mass direct discrimination against other persons on grounds of the protected characteristic of belief by casting their votes in a general election. People may cast their votes for many reasons, but these include voting for a candidate because of the beliefs of that candidate or their political party, or voting to prevent a particular candidate from getting elected, e.g. by voting tactically, because of the beliefs of that candidate or their political party.

Both cases will involve the voter treating other candidates less favourably because of the beliefs of those candidates or their political parties. Candidates, party workers, and commentators in the mainstream media and the blogosphere will publicly encourage the electorate to support the candidates and parties whose protected beliefs best fit their own and reject the candidates and parties whose protected beliefs do not. That, in the United Kingdom at any rate, is how democracy works. I am satisfied that Parliament did not intend the EA to prohibit direct discrimination of that kind, as to do so would interfere with the foundations of a democratic society.

He thought it fine for members to support or oppose party policies, critique other members whose beliefs or actions conflict with those policies, and internally campaign to promote or demote members based on alignment with said policies.

He thought it fine for processes to allow his removal based on his beliefs and the way they contradicted party policy. He thought it fine for members to criticise him as a “public figure”. He thought it fine to be subjected to the invective and manoeuvrings of political opponents, because they are part of the price one risks having to pay for active participation in politics:

For the court to step in and try to stop this would be to rebalance the relationship between the courts and the polity in a manner which I am satisfied was not within the contemplation of Parliament when it enacted the [legislation].

And when Ali complained that the Open Letter has accused him of “a history of transphobia and discriminatory behaviour towards minority groups”, he found that the allegations were “not abusive in the sense that racial slur is abusive”, but rather that they were “factual allegations about words or actions of which reasonable people would disapprove, made in language which would be appropriate if the allegations were true.”

Does that all mean that if staff sign an open letter about a prominent colleague or leader that accuses them of being a “TERF” they will be disciplined by a university, but that if students do it about an SU officer they are protected?

And given that SUs are established in law as democratic membership organisations, and that case law and top flight legal advice suggests that they can and should debate matters of common concern to students outside of their “students as students” role, does that means that those arguing that SUs should observe “institutional neutrality” in pursuit of free speech should back off?

Any answers?

I don’t know the answers to most of these questions, but I know this. SUs and their activities are part of yet distinct from universities.

But so far pretty much no-one – law makers, civil servants, regulators, pundits and all sorts of others involved – has attempted to understand what it is that SUs do and what they are being expected to do in a given situation. SUs have largely been treated like naughty children.

Of course it is true that SUs have some political motivations on different issues – they are led by and influenced by, democratically, their members. It would be a tragedy if we expected them to be permanently neutral.

But it really does come to something when we expect these organisations not to campaign on student hunger or put their largely voluntary efforts into belonging initiatives or mental health projects, and instead to spend their time trying to follow a set of baffling and inconsistent rules that nobody seems able to define, explain or even attempt to enable.

The whole thing – the way we are treating these people – is a scandal. It should stop now – and the myriad of so-called grown ups involved should accept that they’ve created this mess, and should collectively commit to working with student leaders and their staff to fix it.