Campus free speech legislation ‘to target students’ unions’

Legislation on free speech in English universities being discussed by the Westminster government is expected to target students’ unions by putting them under extended statutory duties and threatening fines.

The Department for Education is also believed to be examining the system of block grants directed by universities to students’ unions.

The department has a group of officials working on the issue of free speech in universities, Times Higher Education understands.

Speaking in the House of Commons last week, Gavin Williamson, the education secretary, said the government was “exploring a range of legislative and non-legislative options” to protect free speech on campuses, following the Conservative manifesto pledge to “strengthen academic freedom and free speech in universities”. Any legislation on free speech in universities – a hot-button issue for the right in the US and now in the UK – is certain to prove highly controversial and bring concerns over potential threats to university autonomy.

There have been discussions in the government about teeing up the issue of campus free speech in the further education White Paper, expected this autumn, then introducing legislation subsequently that would extend statutory free speech duties – already imposed on those who run universities – to students’ unions, sources told THE.

While legislating has previously been discussed in detail within the government, the decision on whether to introduce a bill in the autumn is likely to hinge on whether the political mood around universities has changed in recent weeks. The A-levels and university admissions crises have required the government to work with the sector, while also putting doubt over the future of Mr Williamson, whose special adviser, Iain Mansfield, is a driving force behind moves to legislate on campus free speech.

Any moves to target students’ unions, particularly by financial means, could also be problematic at a time when unions have a key role to play in supporting students as they return to campuses during the pandemic crisis.

In August, the right-wing Policy Exchange thinktank published a report on academic freedom, which extended a similar 2019 report.

Policy Exchange wants Section 43 of the 1986 Education Act – which requires those running universities to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers” – to be extended to students’ unions.

Shortly after the general election in December 2019, Mr Mansfield, then working at Policy Exchange, said that key recommendations in the original report included “extending the statutory duty on freedom of speech to include students and student unions as well as HEIs”.

The report also recommended “that the Office for Students should appoint a national academic freedom champion who would have the power to investigate allegations of academic freedom or free speech violations and then lead on sanctions where appropriate”, he noted.

“Those would be two things which could be done” by the new government, Mr Mansfield told THE in December 2019.

Policy Exchange’s report last month said the OfS should “be willing to exercise its existing powers to fine [higher education providers], for breaches of academic freedom and freedom of speech”.

The report also said the government should provide guidance to universities that should include “disciplinary action for individuals who engage in unlawful intimidation, disaffiliation for student societies who infringe their freedom of speech duties, and fines for student unions who discriminate on grounds of viewpoint”.

A DfE spokeswoman said: “As set out in the manifesto, this government is committed to strengthening free speech in higher education, and is considering measures to do this, including legislation.

“University leaders must do much more to champion free speech, and if universities are not prepared to defend free speech, the government will.”

Hillary Gyebi-Ababio, vice-president (higher education) of the National Union of Students, said that it would be “ridiculous” for ministers to focus their attention on free speech legislation in the midst of a global pandemic.

“Students’ unions in the UK support many thousands of events each year, the vast majority of which proceed without any issues. The Joint Committee on Human Rights in Parliament even investigated free speech on campus in 2017 and found it was ‘not a pervasive problem’. Instead of channelling its energy into a non-existent problem the government should focus on the crisis in hand,” Ms Gyebi-Ababio said.

john.morgan@timeshighereducation.com