We examine some of the distinctive features of students' unions which cause problems with the new freedom of speech legislation.
This is the second in our series of articles for students' unions about the new freedom of speech legislation. You can read the first article, about how the impact of the new legislation on students' unions, here Students' unions: how does the new freedom of speech law affect you? - Wrigleys Solicitors LLP.
Students' unions are multi-faceted organisations with diverse and unique characteristics. These multiple personalities lead to significant tensions and contradictions with the new freedom of speech rules.
Students' unions as charities
Virtually all students' unions are charities, with charitable purposes to advance education. Trustees must take their trustee duties into account when applying the new freedom of speech duties, leading to the potential for conflict.
For example, trustees must consider the interests of all their beneficiaries when making decisions, rather than just a select group of them. It's easy to imagine a situation where a students' union allows an event to go ahead with a controversial speaker, because to refuse it would impinge on the freedom of speech of a group of students. However, going ahead with the event makes another group of students feel uncomfortable, or even unsafe. How should trustees weigh up these competing duties?
We are waiting to see how the Charity Commission and the Office for Students will work together to make sure guidance issued by each of them is both consistent and avoids duplication of effort, particular on topics such as campaigning and political activity.
Students' unions as 'political' organisations
Whether it's debates on Israel/Palestine or policies on trans rights, students' unions regularly have to deal with contentious issues, with issues of national and international significance played out at campus-scale.
In many cases, these activities also involve external stakeholders. National organisations or movements often have outposts within students' unions, usually through student societies. Time and again, we see student complaints where an external body is supporting either the complainant or the defendant. Even though most SU complaints processes insist that they must be student-led, these actors still work in the background. We expect that this will only be intensified under the new freedom of speech regime, adding to the complexity of what students' unions must tackle, with their limited resources.
Students' unions as complex governance structures
Students' unions are complex governance structures. To take one example, sabbatical officers wear multiple hats, as trustees, student members, elected officers and employees, and we see this causing confusion and practical difficulties when it comes to applying codes of practice and disciplinary procedures, of which there might be several. The new freedom of speech code of practice is yet another layer to add into the mix.
A particular problem is presented by student societies. Although these are often an integral part of an SU, they are legally separate, including some we are aware of which are separate registered charities (which must be independent, as a principle of charity law). To what extent should SUs be expected to take reasonably practicable steps to secure freedom of speech in this context where it has little control? We might be dealing with events or activities on SU premises, off-site or, increasingly, online.
Students' unions as student-led
SUs are, by their very nature, student-led and we must be mindful of the burden and expectations placed on those students, often in their early 20s and in their first responsible job. Expecting a fresh sabbatical officer to adjudicate on the IHRA definition of anti-semitism is a huge ask, and the new duty can only increase that burden of responsibility.
It's also worth noting that the expected implementation date of 1 August is likely to cause significant issues, as sabbatical officer teams will be new in post and will already have a huge burden to get to grips with.
Students' unions and the Equality Act
Speech that is not lawful is not protected under the new freedom of speech law. This would include speech that amounts to unlawful harassment or unlawful discrimination under the Equality Act 2010. However, this is one of the most complex areas of legal advice we deal with. Expecting under-resourced student-led organisations to weigh up freedom of speech obligations against Equality Act duties is a tall order.
Students' unions as heterogeneous
Finally, SUs are heterogeneous. They range from a tiny operation with a single part-time staff member and one or two elected officers, up to multi-million pound organisations with multiple elected officers and dozens of staff members. This variety in size, character and resources must be recognised in finalised OfS guidance, and the approach it takes to enforcing the new law must take into account this heterogeneity.
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