Consultation on the OfS’s new free speech complaints scheme – our response

The Office for Students (OfS) is seeking feedback on its proposed “free speech complaints scheme,” a cornerstone of the government’s efforts to champion free expression within academic settings.

Our response to the OfS’s consultation on the new free speech complaints scheme is set out below. We are not proposing to comment on the other questions set out in the consultation document.

The deadline for submitting responses to the consultation is 10 March 2024.

Question B: Do you have any comments on Proposal B regarding who can complain?

  • Definition of student

The definition of student is: ‘a person undertaking a course of study or a programme of research (i) at the institution in question or (ii) that leads to an award granted by the institution in question, and in either case this may include a trainee or apprentice’. It should be noted that this will include students who are undertaking further education courses at a registered higher education provider; whereas further education students who are undertaking further education courses at an FE college or private training provider which is not registered with the OfS will not have the right to complain (although the Education (No. 2) Act 1986 applies and will continue to apply to institutions in the further education sector).

The reference to a person who ‘is or was’ a student is potentially problematic, because every graduate was once a student. Does this mean that someone who graduated 40 years ago who attends a civic dinner organised by their former institution is entitled to make a free speech complaint? We assume this is not the intention, particularly as the definition of ‘member’ in the Higher Education and Research Act 2017 (HERA) expressly excludes graduates (who in chartered universities are normally included in the constitutional definition of ‘member of the university’), presumably to avoid the situation where universities owe lifetime duties to ever-increasing numbers of people.

The proposed definition of student also includes any student who is undertaking a programme that leads to an award of the registered higher education provider, which covers students on validated, franchised and other similar collaborative programmes, whether studying in the UK or overseas. Giving students studying overseas on a validated programme the right to bring a free speech complaint is potentially problematic in countries which have a different approach to free speech, where it may not be legally possible for the registered provider to comply with its obligations under HERA (or require that its partner institution so complies) whilst operating in that jurisdiction.

Our recommendation

We would recommend that the OfS should adopt a revised definition of ‘student’ which restricts it to current students or those who were students at the time the free speech complaint arose; and removes students studying overseas from the ambit of the scheme.

  • Definition of member

The proposed definition of member states that it ‘may include board members, faculty, staff, students and administrators’, but ‘does not include a person who is a member of the institution solely because of having been a student of the institution’. The use of ‘may’ means it is not clear whether a member of a provider’s board of governors is caught by the scheme or not – who decides? We also have concerns about the impact of this proposed definition for those registered providers that are charities. Board members are charity trustees and under the Charity Commission guidance (which the OfS cites with approval in its Regulatory Advice 6: Exempt Charities) are required to avoid conflicts of interest and conflicts of loyalty. The guidance makes clear that a conflict of loyalty could arise where the religious, political or personal views of a trustee could interfere with the ability of the trustee to decide the issue only in the best interests of the charity. In these circumstances, the trustee could have to be excluded from certain decisions or even asked to step down. Further, their freedom of speech is inherently restricted by their duty to safeguard the reputation of the provider and the duty of confidentiality they owe to the provider.

Our recommendation

We would recommend that the proposed definition of member is amended so that it is clear that board members of registered providers are not able to bring free speech complaints.

The references in the proposed definition to ‘faculty’ and ‘administrators’ are also unnecessary and could be removed, as they will be covered by the term ‘staff’; whereas it would be helpful to clarify whether the definition extends to honorary/visiting academics.

  • Definition of visiting speaker

The proposed definition of visiting speaker is ‘a person who was invited to speak at a registered higher education provider, constituent institution or relevant students’ union’. It does not include a person who wanted or requested an invitation to speak but was not invited’. It is not clear from this definition whether the term visiting speaker is intended to cover any person who is invited to speak at a registered provider by anyone at the institution i.e. by any member of staff or student, or only those who have been invited through the provider’s formal processes for visiting speakers. The majority of higher education providers have adopted detailed processes which are designed to enable them to balance their free speech obligations with considerations of health and safety and security.

Our recommendation

We would recommend that the definition is amended to clarify that it applies only to visiting speakers invited through these formal processes.

It is also unclear whether the proposed definition applies to someone who is invited to speak by an organisation which has booked the use of a meeting room at the registered provider’s premises. We would suggest this would be inappropriate given that the event is not organised by a member of or being held in the name of the registered provider.

Question C: Do you have any comments on Proposal C regarding complaints that we will not review?

It is proposed that a complaint under the OfS scheme can be brought if the complainant has completed the provider’s internal complaints or appeals process, or, if earlier, once 30 days have elapsed since that process began.

In our view, the proposed 30 day time period is unrealistic, because it is very unlikely in the majority of cases that a provider will have completed its complaints/appeal process within that time period. The relevant process is likely to be still continuing 30 days after the complaint/appeal was brought, and the provider will not therefore have had the opportunity to rectify any issues, thus leading to the complainant potentially waiting longer for a resolution.

It is also likely that the provider will not be in a position to fully respond to a complaint raised under the OfS scheme if, for example, the provider’s internal investigation is still ongoing. This is particularly likely where the complaint/appeal involves multiple elements, only one of which is a free speech claim. Limiting the provider’s ability to fully respond to the complaint is likely to impact on the OfS’s ability to make a decision on the substance of the complaint.

Our recommendation

We would recommend that this proposal should be amended so that a complaint can only be brought once the provider’s internal processes have been completed.

Question D: Do you have any comments on Proposal D regarding time limits?

It is proposed that a free speech complaint must be submitted to the OfS within 12 months after the date on which it appears to the OfS that the adverse consequences alleged in the complaint last occurred. This is an open-ended timescale which could enable a complainant to bring a complaint many years after the alleged breach of their free speech rights by arguing that the adverse consequences are continuing.

Our recommendation

We would recommend that the time limit should be amended so that a complaint must be submitted within 12 months of the alleged breach of the complainant’s free speech rights, unless there are good reasons for extending the deadline.

Question F: Do you have any comments on Proposal F regarding reviewing a free speech complaint?

It is proposed that the OfS ‘may share some of the information that the complainant sends to us with the respondent and may seek their representations on that information’. The use of the word ‘may’ gives the OfS the discretion to decide whether or not to share the full details of a complaint with the respondent provider and seek their representations on it, potentially meaning that the OfS could make a decision on a free speech complaint without notifying the provider about it at all, never mind giving the provider an opportunity to respond. This is unfair and contrary to the principles of good public administration. Except where the decision is to reject a complaint because it is ineligible to be brought under the scheme, our view is that the full complaint should always be shared with the provider and the provider’s comments sought on it before the OfS makes any decision.

The duty of the OfS under HERA is to determine whether the provider has breached its duty to take reasonably practicable steps to secure free speech within the law. It is not clear how the OfS intends to decide whether the speech in question was within the law (or not), given that it is not a court or tribunal. Simply taking legal advice may not be sufficient, given that legal views can differ. It would also be helpful to understand the extent to which, in determining whether a provider has breached its free speech duty, the OfS will take into account the fact that the provider took and acted on legal advice, and how legal privilege will be maintained in the circumstances. Our view is that the OfS should not seek to review the legal advice received by the provider or to substitute its own advice, unless there is some evidence that the advice may have been plainly wrong.

It is proposed that where the OfS considers that a free speech complaint concerns academic judgment, it ‘may seek expert academic judgment to inform our review…only if we consider it appropriate’. It is not clear to us how the OfS, as a regulator, is in a position to be able to make a decision on any matter involving academic judgment without appropriate expert advice, and we would therefore recommend that there should be a requirement to seek such advice in those cases.

Question G: Do you have any comments on Proposal G regarding our decision and Notice of Complaint Outcome?

It is proposed that the OfS will make a decision on a complaint ‘as soon as reasonably practicable’. This is a very open-ended statement which provides neither the provider nor the complainant with any indication of when they can expect a decision, and goes against the OfS’s assertion in proposal C that delay ‘may constitute punishment in itself’. We would recommend that the scheme rules should include a timeframe within which the OfS will normally reach a decision.

We note that there is no proposal for the provider (or the complainant) to have a right of appeal against the OfS’s decision. This is contrary to the principles of good public administration; and it is particularly important if the provider is not given any opportunity to make representations about the complaint, including about any factual inaccuracies.

Question K: Do you have any comments on Proposal K regarding representations?

It is proposed that the OfS ‘may’ seek representations from the provider before reaching a final decision about the eligibility of the complaint, the extent to which the complaint is justified, and any remedy. As stated in our response to proposal F, our view is that, other than complaints which the OfS considers are not eligible for consideration under the scheme, it should always seek representations from the provider on the complaint before reaching a decision on the substance of the complaint and any proposed remedy.

Question P: Do you have any comments on Proposal P regarding the publication of information relating to the free speech complaints scheme?

It is proposed that the OfS would normally expect to publish information about the outcome of free speech complaints made under the scheme, including the identity of the provider, whether the complaint was found to be justified, partly justified or not justified (including where settlement is reached before a decision) and any recommendations or suggestions made by the OfS.

In our view it is inappropriate to publish the identity of the provider where a complaint is found to be not justified. There is a risk of reputational damage to the provider in these circumstances, particularly those where issues of free speech are more contentious.

It is also proposed that the OfS will seek representations from the provider before making a final decision to publish information where it considers it appropriate to do so. In our view the OfS should always seek representations from the provider on information it intends to publish which relates to that provider, given the potential for reputational damage.

Question Q: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.

As mentioned in our response to question B, we consider there is a need to clarify the definitions of ‘student’, ‘member’ and ‘visiting speaker’.

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Smita leads the team that works to shape the universities and colleges of the future by providing strategic advice and sector specific insight across all their legal needs.

Smita is a recognised leader in her field, specialising in constitutional, governance and regulatory advice which helps educational institutions thrive in a rapidly changing landscape. She has helped institutions to innovate and develop, to widen their reach, build institutional resilience, and deliver the best outcomes for students and other stakeholders.

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Published: 4th March 2024
Area: Education

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