The Higher Education (Freedom of Speech) Act 2023 is implementing new and more rigidly enforceable duties on students' unions (SUs). They require, among other things, relevant SUs to take "reasonably practicable steps" to secure "freedom of speech within the law" for groups, including students and visiting speakers. The Act also expands the requirements applying to higher education providers (HEPs).
The statutory duties are somewhat generic and unclear, and yet they have potentially significant consequences for unions. It is crucial that the sector obtains clear guidance which recognises both the new law and the long-held existing duties of charitable status. Explore a summary of our key recommendations to the Office for Students (OfS) consultations on this Act (running until 10 and 17 March 2024).
Regulation of students' unions consultation: key recommendations
The guidance should reassure SUs that "reasonably practicable" steps depend on the SU's available resources
The OfS must acknowledge clearly in its guidance that SUs have comparatively limited resources, and that this has a bearing on what constitutes a "reasonably practicable" step (and accordingly, when the OfS will intervene). For instance, these questions often involve multiple legal specialisms and judgement calls about what a speaker, for example, may say.
The guidance should refer more to the relationship with other laws and duties
It should address the scope of a "reasonably practicable step" and "within the law" noting the other obligations (other than charity law) which are often engaged alongside freedom of speech – whether education law, criminal law, or equality law. It should also affirm that what is required is a balancing act and that trustees that do that will be protected by the regulator.
The guidance should address SUs' charitable status
The new regulatory guidance needs to be consistent with the Charity Commission's guidance, where the two regimes are currently at odds with each other. SU leaders who are charity trustees have duties, including to further the educational purposes of the union, to further public benefit, and to comply with a duty of prudence in the administration of the charity. The Commission interprets this broadly, including stating that there is a "well-known" duty to protect an organisation's reputation; that charities must conduct social media activity with "respect and tolerance" and that they must "protect people who come into contact with your charity through its work". There are many situations where an SU could get into regulatory trouble with the OfS for one thing, and with the Charity Commission for doing the opposite. The MoU between the OfS and the Charity Commission should be revised for this purpose.
The reporting requirements need to be more specific and less onerous
The guidance proposes a ten-day period for SUs to report any free speech issues, and provides no real detail about what / when they will be required to report. This period is too short, particularly during university elections and holiday periods, and will make it very difficult to obtain suitable trustee-level input. The guidance should also make clear at this stage what is, or is not, a reportable incident (note the Charity Commission's serious incident reporting guidance). We are concerned by the suggestion that the OfS will take account of media reporting (which could be inaccurate and/or politically partisan) in deciding how to proceed.
The OfS should commit to hear representations from SUs in each investigation process
At present it affords itself a wide margin of discretion to determine whether or not, and how, to listen to SUs accused of breaching their duties. In the interests of natural justice / as a matter of basic procedural fairness it must commit to always do so.
There should be a moratorium on fines
The OfS plans to issue revised guidance on these matters in the summer. This is too close to the implementation deadline of 1 August to expect SUs to prepare, particularly as (i) trustee teams will be new; (ii) it will be the university summer break; and (iii) the new requirements are quite onerous. The OfS should therefore indicate that it will not issue fines for a transitional period.
Fines should also be clearly capped at a proportionate level by reference to the available assets of the SU, and should be nominal in many cases.
The guidance should specifically address the role of clubs and societies at an SU
OfS should carry out an equality impact assessment
At present the guidance skates over the potential disproportionate impact of the proposals on people, on the basis of their protected characteristics and this must be properly considered.
New complaints scheme consultation: key recommendations
The eligibility criteria should be clarified
At present the wording catches anyone who "was" a student (i.e. any graduate), which seems too broad. There is a lack of clarity on who is a visiting speaker, and more clarity is needed about the procedure where (it is proposed that) children complain.
HEPs / SUs should have longer to address a complaint internally before the OfS starts to investigate
The current suggestion is 30 days which we think is inadequate to conduct an internal complaints process, particularly for a complex matter and particularly for an SU with fewer resources.
The OfS's ability to make "recommendations" to HEPs / SUs is interpreted too broadly in the guidance
The OfS states that a respondent is "expected to comply with any recommendation we make in full". There is also insufficient guidance about how these recommendations will look / if the OfS will be able to make them (noting the range of duties applying to HEPs / SUs).
The OfS needs to commit to allow representations from the HEP / SU, at key points in the process. At present, it makes no such commitment.
The OfS should not charge HEPs / SUs costs
These costs could be substantial and divert limited charitable funding away from its intended purposes, as well as lead them to be more risk averse in defending themselves, ironically detracting from freedom of speech.
What's next?
The OfS announced yesterday that there will be a third consultation released by the end of March (with an eight-week response time), with:
1) "Examples where a provider, constituent institution or students' union may not have taken steps to secure free speech; and"
2) "A non-exhaustive list of steps that it may be reasonably practicable for providers, constituent institutions and students' unions to take to secure free speech within the law. This includes steps relating to the free speech code of practice".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
