Office for Students’ proposed guidance for student unions unhelpful, CAF finds

The Office for Student’s proposed guidance for students’ unions on their duties to secure free speech contains little useful information. 

Under the Higher Education (Freedom of Speech) Act, students’ unions have a duty to take “reasonably practicable” steps to secure freedom of speech for their members and for visiting speakers. The Office for Students (OfS) is required by the Act to provide unions with guidance on whether they are fulfilling their free speech duties. 

On the 14 December, the OfS published its proposed guidance for students’ unions. The main points of the guidance (201B) are that the duty to secure freedom of speech includes: 

  1. Ensuring that no individual or group is refused the use of students’ union premises on the basis of their beliefs or associations 
  1. Ensuring that no student society is denied affiliation to the students’ union on the basis of their beliefs 

Both points, however, are already specified in the Act (A5), which the guidance reproduces nearly verbatim. Next to no information, beyond what is already in the Act, is supplied. One exception is a passage on what the OfS will interpret to be a “reasonably practicable” step: 

The OfS interprets the duty ‘to take the steps that… are reasonably practicable for it to take…’ to include deciding not to take a step which would have an adverse impact on freedom of speech without compelling lawful justification. (201H

It is likely that by this passage the OfS means that the mere violation of a union or university policy – for instance, to secure the “safety” of students – is insufficient to justify preventing speech. The basis for preventing an individual from speaking must be in the law. This, if it is what the OfS means, could have been stated more explicitly. The OfS could also have referred to those pieces of legislation which might require students’ unions to prevent speech. 

The OfS add that an additional consideration as to whether a step is reasonably practicable is: 

the financial and other costs which would be incurred in taking the step and the extent to which it would directly disrupt other lawful activities. (201I

However, the OfS give no indication of what level of financial costs or disruption to other lawful activities might justify preventing speech. What level of financial cost, for instance, in hiring security to manage aggressive protesters, might legally justify rescinding an invitation to a speaker? The stipulation that students’ unions must have “particular regard to the importance of freedom of speech” conveys little about the specific content of their duties. 

It is extremely important that the OfS provides guidance that is as clear and detailed as possible. Without detailed guidance, individuals who have had their speech curtailed will not know whether universities and SU’s have failed in their free speech duties – and will be much less likely to bring complaints to the OfS. Further, if it is not clear to students’ unions what their free speech duties involve, they are simply unlikely to fulfil these duties. 

The OfS proposed guidance for students’ unions is open for consultation until 17th March. CAF urges supporters of academic freedom to respond.