Freedom of Speech Act: key considerations for student unions

Some of the key provisions of the Higher Education (Freedom of Speech) Act 2023 are due to come into force on 1 August 2024. But the current consultation on how OfS intends to regulate students’ unions on free speech matters risks leaving them high and dry. 

Chris Hook, partner in our charities and education team, discusses the current state of play and encourages those eligible to respond to the draft consultation.

Background

On 14 December 2023, the Office for Students (OfS) launched its public consultation on how it intends to regulate students’ unions on free speech matters from 1 August 2024.  

In particular, SUs will be required to take reasonably practicable steps to secure freedom of speech within the law and to maintain a code of practice setting out how they uphold freedom of speech. 

As you would expect, the consultation includes various proposals and questions together with draft guidance.  However, for a document calling itself guidance there is notably little practical information to actually guide students’ unions (SUs). 

Limited guidance

Reading the consultation document, it is hard to resist the feeling that OfS does not really know what SUs do or how they work, does not fully understand the wider charity law issues at play, and does not acknowledge the complexity of how to promote freedom of speech within the law – while also ensuring that others are not subject to unlawful discrimination, harassment or victimisation. 

Probably the biggest free speech issue facing SUs since October 2023 has been how to respond to incidents and accusations of antisemitism, with pressure either to ban or prevent an activity or event or to uphold and facilitate it.  The Department for Education and the OfS, chaired by Conservative peer Lord (James) Wharton, have for several years urged universities to adopt the IHRA definition of antisemitism. 

But last month an employment tribunal held that an academic’s anti-Zionist beliefs constituted a “philosophical belief and a protected characteristic” under the Equality Act 2010 and that his treatment by Bristol University had constituted unfair dismissal, direct discrimination and harassment.  

In other words, these issues – and others – are highly contested areas of law with competing legal duties and uncertain boundaries, and it is unhelpful for OfS to issue draft guidance which completely ignores this complexity and provides SUs with so little practical assistance – all while SUs will face the risk of an OfS investigation, a new OfS free speech complaints scheme and monetary penalties for non-compliance. 

Potential implications

If OfS had felt unable to provide useful examples to assist SUs, it is regrettable that it did not produce the consultation document and draft guidance in conjunction with the Charity Commission and/or the Equality & Human Rights Commission, who are quite accustomed to issuing practical guidance with helpful case studies or examples.

Without such guidance, SUs will inevitably have to plug the gap by paying for legal advice, reducing the amount of charitable funds available to improve student services and outcomes. 

In addition, if I were a trustee of a small SU at a newer HE provider, I might well conclude that the regulatory burden and potential financial penalties were not worth the hassle, and instead opt to wind up the SU and revert to a student forum within the provider’s structure.  

This would be a disappointing – and surely unintended – consequence of the legislation and OfS’s approach but an entirely understandable one in the circumstances. 

Further consultation

It is, therefore, perhaps not surprising that OfS recently announced further consultation on free speech matters to be published in the coming weeks. 

In the meantime, universities, colleges, SUs, students and others still have until 17 March 2024 to respond to the current consultation.  We would encourage you to do so.  

To discuss any of the points raised in this article or on education law in general, please contact Chris using 0191 211 7801 or [email protected].