Wednesday 24-05-2023 - 08:00

After two years, and one of the longest passages through Parliament we’ve seen, the Higher Education (Freedom of Speech) Act finally received Royal Assent and came into effect on 11 May 2023 for English HE institutions and SUs.

The details of the Bill have been discussed at length, but the crucial part is that it places additional emphasis on universities, and now students’ unions, to promote freedom of speech.

You can read the Act in full here.

It has always been NUS Charity’s view that there is not a problem with freedom of speech in students’ unions and the data also shows this to be the case – and we have argued this consistently throughout the Bill’s passage. However, we can only engage with the legislation in front of us and it very quickly became inevitable that this Bill would pass.

The major concern has always been the presence of a statutory tort that would allow speakers to take legal redress if they believed their freedom of speech had been impinged. This is framed as a route of last resort, but this does not mean there will be no action or that we will not see speculative cases. There is also an expectation that individuals or organisations putting on an event on university or students’ union premises will not expected to pay their own security costs.

What we feel is the greater risk is that actions of any student anywhere may become attached to their students’ unions. The issues around freedom of speech have generally been from students, student societies, or student groups not affiliated to their students’ union in the past.

OfS have been tasked with preparing and publishing a regulatory framework which consists of guidance for students’ unions on their duties to take steps to secure freedom of speech and maintain a code of practice. We don’t imagine this will be far from what many SUs already have in place, in terms of processes and policies.

The additional attention paid to issues around freedom of speech over the past few years has sharpened already successful practice in students’ unions. NUS Charity has had examples of practice, including models and templates for some years. We also have press guidance, and guidance on working with institutions on the issue – as this will be key going forward.

The political question of this development is separate from its practical implications. The Office for Students (OfS) looks set to appoint Cambridge Professor Arif Ahmed as its first free speech champion. It is not entirely clear what they will spend their time doing, but it is likely it will involve scrutiny of students’ unions.

Our strategy going forward

NUS Charity could choose to not engage with the OfS, but this would make no difference to their work and reduces any potential opportunities for NUS Charity to influence activity. Instead, our proposed approach is one of constructive engagement.

Our objective is to move the OfS toward more material issues of freedom of speech (like banning NDAs) and give them opportunities to engage with the substantive issues. If OfS chooses to ignore this opportunity, this positions NUS Charity as being interested in the substantive issues facing students. If they do engage, it will help to shape their activity toward more productive ends.

To achieve this approach we intend to extend the opportunity for the freedom of speech champion to engage with us, and have drafted a letter to them.

Our other activity will include:

• Engaging with UUK and other stakeholders to develop shared students’ union and university advice. We will welcome OfS as part of this conversation in considering how organisations can work together.
• Gathering feedback from students’ unions to put to OfS to shape guidance for the sector.
• Asking students’ unions to record the number of events taking place over the next few years. We wish to quantitatively demonstrate the impact of this legislation on freedom of speech in students’ unions.
• Inviting the freedom of speech champion to meet with NUS Charity on a regular basis to discuss freedom of speech issues. Initially, we wish to engage on the banning of NDAs, disclosures of misconduct, and student reporting to OfS.
• Inviting the freedom of speech champion to work with us in supporting our leaders, students, and wider society, in engaging in contentious debates with respect. As we have seen through NUS UK's investigation into antisemitism, political debate can quickly veer into harassment and even prejudice. While these behaviours manifested in and adjacent to NUS UK, there is a wider societal question on how we wish our future leaders to engage in robust but respectful debate.

We hope that through engagement we can shape more sensible outcomes, move the OfS toward more constructive debate, and position ourselves (and therefore SUs) as leaders on issues of freedom of speech.

Due to the political nature of freedom of speech, the media will have an interest in any issues it perceives are relevant across the UK, and therefore we suggest that all SUs/SAs across the nations look at processes and systems to ensure that practice is fit for purpose, and have a press strategy in place for any enquiries.

Events

We will be facilitating meetings to discuss the Act and its implications, as well as collating good governance practice for dealing with external speakers.

So far, we have held a Freedom of Speech 101 webinar for those who wanted to find out more and we have also held a session for SU staff to feed into our governance guidance with their own practice and ideas

For those involved in the governance guidance, we're hoping to follow up before Membership Services Conference to workshop the guidance content in person on the 15^th August, which can hopefully take into account further info from OfS at this stage. Please express your interest for being involved in this process here.

We will do a more general update of the workshop activity and the current situation in relation to the Act during Membership Services Conference - exact session timing TBC.

If you have any questions about any of the above, please email us at uniondevelopment@nus.org.uk