We look at the impact of the new freedom of speech legislation on students' unions, as the first in a series of articles about the new changes.
The new Higher Education (Freedom of Speech) Act 2023 is a huge change to the legal framework within which students' unions operate. The legislation will have four main impacts on students' unions, which we summarise in this article.
Although we expected the relevant bits of the law to come into force from 1 August 2024, we don't yet know whether and how this will be affected by any change of government. For now, we're continuing to assume that the law will come into force this summer and would recommend that SUs do the same, to ensure they are prepared for the changes.
"Secure" duty
Under the new legislation, students' unions will have a duty to take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take, in order to secure freedom of speech within the law for:
- members and staff of the students' union;
- students, members and staff of the university; and
- visiting speakers.
There are some key features to note about this:
- The duty does not require students' unions to secure freedom of speech, but instead to take reasonably practicable steps to secure it.
- Only speech 'within the law' is protected: unlawful speech such as harassment, discrimination, hate speech etc. is not covered.
- What constitutes "reasonable" will depend on the size and resources of the students' union in question, and the surrounding circumstances. The draft guidance issued by the Office for Students did not get a very positive reception from the sector and we must wait and see what the final version looks like.
- Unlike universities, students' unions are not subject to any general duty to promote freedom of speech.
- As part of the secure duty, students' unions must ensure
that:
- the use of their premises;
- the terms on which premises are provided; and
- affiliation to the students' union of any society,
is not denied on the basis of either an individual's ideas and opinions, or the policies or objectives of societies and other bodies.
- Security costs cannot be passed on except in exceptional circumstances. The OfS has indicated in its draft guidance that it would be acceptable to place a cap on security costs, with the society being responsible for costs that exceed this cap.
"Code" duty
Student's unions will be required to maintain a code of practice setting out:
- their values in relation to free speech;
- procedures to be followed in relation to meetings and other activities to be held on their premises;
- expected conduct in relation to those meetings or activities; an
- criteria to be used when making decisions about their funding and support for events and activities to which the freedom of speech duty is relevant; and decisions about the use of their premises.
In our experience, many students' unions are basing their code of practice of that used by their university (as universities have long been required to have this in place). Some SUs are also agreeing joint codes of practice with their university, but we don't yet know how the Office for Students will view this.
Complaints scheme
The legislation introduces a new complaints scheme, to be operated by the Office for Students. A complaint can be brought if a person has suffered adverse consequences due to actions or inactions by a students' union in relation to free speech duties.
The range of people who can bring a complaint is very broad. In relation to SUs, the OfS will consider complaints from current or former students, members or members of staff of the university; current or former members and members of staff of the students' union; and (actual or invited) visiting speakers.
The OfS will have the authority to recommend taking or refraining from taking certain actions, including the payment of a sum to a complainant.
The OfS has issued some preliminary guidance on how the complaints scheme will operate, on which it consulted with the sector. The general view is that the guidance lacks detail. There are also some inconsistencies, for example, while the legislation states that the OfS cannot compel someone to take or refrain from certain actions, the guidance suggests that students' unions are expected to comply with OfS recommendations.
New tort
Finally, the Act introduces a right for a person to bring a claim against a students' union if they experience loss as a result of the students' union breaching its freedom of speech duties. The loss does not necessarily need to be a financial one. The person bringing the claim must first have pursued the complaint via the free speech complaints procedure (unless they are seeking an injunction).
The wide range of people who could bring such a claim is somewhat worrying. For example, a potential speaker whose event is cancelled could claim that the SU has breached its freedom of speech duties, resulting in a loss of income or reputational damage. It underlines the importance of SUs understanding and complying with the new legislation.
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.