OfS proposals on freedom of speech complaints scheme

Office for Students is consulting on how it will operate a complaints mechanism for staff, students, and speakers on freedom of speech. David Kernohan and Jim Dickinson have the details

Jim is an Associate Editor at Wonkhe

The Office for Students (OfS) is consulting on its new “free speech complaints scheme,” one of the central pillars of the government’s plans to support free speech on campus, and you have until 10 March to respond.

There’s also a consultation on the regulation of students’ unions that we’ve written up elsewhere.

The complaints scheme was first outlined back in 2021 with the publication of the Higher Education (Freedom of Speech) Act. The plans under consultation follow the requirements of the Act scrupulously – and, pending the result of the consultation, should be in place on 1 August 2024.

While we have experience of student complaints adjudication via the work of the Office for the Independent Adjudicator (OIA), OfS is very much starting from first principles with this parallel scheme devoted to freedom of speech issues (as defined, topically this week, in the European Convention on Human Rights as codified in the Human Rights Act 1998).

How OfS’ proposals would work

What is a free speech complaint and who can make one?

A free speech complaint needs to be made by an eligible person who has suffered adverse consequences as a result of action (or inaction) of a provider, a constituent provider, or SU (the respondent), and where this action or inaction was a breach of the respondents free speech duty (in A1 of the freedom of speech act for providers and HERA A5 for SUs).

There’s a wrinkle in that a complaint that includes free speech and other issues may be reviewed, but OfS will only make a judgement (and thus recommendations) relating to the free speech issue.

Any eligible person can make a complaint. In the case of a provider (or a constituent institution like an Oxford college) if you are or were a student or staff member, or had applied to be a member of staff, or were (or were invited to be) a visiting speaker, you can make a complaint to OfS. For complaining about a students’ union you need to be a member or staff member of the SU, a student or staff member of the provider linked to the SU, or were (or were invited to be) a visiting speaker.

Some will be surprised to learn that OfS’ proposed definition of “student” isn’t limited to higher education students – because the Act doesn’t differentiate either. So as some providers may have students aged 11 to 16 (Key stage 3 and 4), or 16 to 18 years (Key stage 5), or adults enrolled on further education or community learning programmes, they’re covered here and in the wider duties. OfS has defined “student” to include a student who is studying or undertaking research at a provider or is studying or undertaking research elsewhere for an award of that provider.

And in any case you must be alive at the point the complaint is made.

Students studying at one provider for an award of another provider could suffer adverse consequences should that awarding provider breach its duty to secure free speech within the law. So both validation and franchising is covered both here and then presumably in the duties.

The scheme as a whole relates only to things that happen on or after 1 August 2024, which is when the scheme will come into being (and the relevant bits of the act are expected to become law). There is a timeliness rule, in that the “adverse consequences” need to have happened within 12 months of your complaint being made – although that opens the prospect of someone saying something affected their career in a decade’s time and then having a further year to complain about it.

If something is not a free speech complaint, or does not relate to a provider or SU, it will not be reviewed. Likewise, if proceedings are being dealt with by a “court or tribunal” external to the provider or SU in question (or a professional, statutory, or regulatory body) it will not be reviewed. If a student has made a complaint to the OIA on the same issue, OfS will not review the complaint.

The rules relating to internal provider processes are a little different – OfS will “normally” only begin their review once an internal complaints process has been completed, or after 30 days, whichever comes first. Occasionally OfS will weigh in on a “time sensitive issue” before that point.

That 30 day thing includes any appeal processes in a university or SU, and there’s neither a formal “completion of procedures” approach being proposed. Nor are there plans to develop a good practice framework in the management of complaints as the OIA has – because OIA is concerned to improve the processes around complaints while OfS is concerned with a specific set of issues in those complaints.

As with the OIA, disciplinary, complaints, appeals, grievance or similar internal review processes are all covered. There’s less clarity for SUs, particularly over whether OfS thinks it has the powers to adjudicate on election complaints or grumbles that are processed through democratic structures.

OfS also has the right to ignore vexatious complaints – there’s a few examples listed, but notably this precludes repeat complaints on the same issue.

And “visiting speakers” has been drawn so broadly as to include pretty much anyone in the university inviting anyone that accepts, regardless of going through any process – because, according to OfS Director of Free Speech and Academic Freedom Arif Ahmed, the “process itself might represent a restriction.”

What happens next?

You fill a form in on the OfS website, or submit it by post. You need to include your name (no anonymous complaints are permitted), and your contact details – though you can appoint a representative if you like.

OfS then figures out if it is an actual free speech complaint, if you are an eligible person, if you are complaining about a provider, constituent provider, or SU, and if the complaint is in scope (as regards time limits or other reviews ongoing). The regulator might also get in touch with the respondent at this time to help them make a decision. There’s then a letter from OfS telling you if it can review your complaint under the scheme or not – the respondent is also told.

After this the review proper will start. OfS will look at what has been sent, and gather further information from you and the respondent. This will generally be a desk-based exercise, but there could be face to face meetings if needed. There’s the possibility of expert academic judgement being brought in, where relevant – notably unlike the OIA, complaints to this scheme can include matters of academic judgement.

A decision

At this point one of three things may happen. OfS can dismiss the case (if it decides it is not able to review it after all), attempt to resolve the issue via a settlement (if it can get both parties to agree on what should happen in order for the complaint to be withdrawn), or it can make a decision.

The decision comes in the form of a “notice of complaint outcome,” sent to you and the respondent. This will set out whether the complaint is justified, partially justified, or not justified – along with the reasons for this decision, and any recommendations.

The burden of proof here is “more likely than not” – if it is more likely than not that there has been a breach of the free speech duty, and more likely than not that you have suffered adverse consequences beyond the minor or trivial, the complaint is justified. If there is a breach, but you’ve not suffered adverse consequences of the required severity, the complaint is partially justified. If there’s no breach, the complaint is not justified.

Recommendations can be that the respondent does (or stops doing) pretty much anything. The respondent has to comply in full and within any time limits. If it doesn’t, OfS can start civil proceedings to make it do so. OfS can also make suggestions that are non-compulsory. There may also be regulatory action based on non-compliance with registration conditions, including the new freedom of speech ones.

Other bits

Complaints are suspended if you don’t supply requested information, cease to be contactable, or if you decide to withdraw.

If OfS gets a load of complaints about the same issue, it might choose to treat these as a group complaint (even if those complaining don’t know that other people are complaining). It might then choose one complaint to review ahead of all the others, or consider all the complaints together. We don’t know whether, if someone complains about a university when the issue is really about an SU (or vice versa) OfS could switch the “respondent”.

Providers, constituent institutions, and SUs have to advertise the scheme. There’s a required text to go in induction materials (for staff and students), the free speech code of practice, relevant internal process documentation, and application materials for academic jobs at the provider. Staff and students need also to be reminded about the scheme once a year.

There’s no charge for making a complaint, though for a justified or partly justified complaint OfS can require the respondent to cover costs.

Finally, OfS would normally expect to publish information about the free speech complaints it receives – covering the notices of complaint outcomes themselves, recommendations and suggestions, and the compliance of the respondent, though it would not include the name of the person making the complaint. There’ll also be statistics about the scheme published.

What’s missing?

Overlapping complaints at OIAHE and OfS

During the passage of the Higher Education (Freedom of Speech) Act there were a lot of questions about the way in which the freedom of speech complaints process (managed by OfS) would interact with the more general student complaint process managed by the OIA. It was assumed, by ministers and others, that there would be a great deal of information sharing between OIA and OfS.

Outside of a consideration around avoiding duplication (both organisations will not review the same complaint by the same student) there’s very little sign of this – and there could conceivably be problems around the interaction between student complaints to OIA and staff or speaker complaints to OfS.

Imagine, for example, that a black student is confronted with what they understand as racist ideas from a member of staff. The student then complains to the provider, whereupon the member of staff is slapped on the wrist and told not to do it again. The student is unhappy about this, and complains to OIA about harassment – while the staff member complains to OfS that the wrist slap constitutes a breach of freedom of speech duty, or even just complains that the SU isn’t controlling the associated society. In this case, there are two parallel investigations into the same incidents involving the same people – and no guarantee that there will not be contradictory rulings.

This course of events is not even merely plausible, it is likely. Harassment and freedom of speech are often two sides of the same see-saw: this is why provider level investigations of issues like this are incredibly complex and time consuming as it is a very difficult judgement to make – often requiring considerably more than 30 days. The OfS scheme really should have some consideration of what would need to happen in these cases. And other forms of chaos here are available.

OfS’ attempts to argue that it will only look at the free speech aspects of a case feels naive if a provider or an SU says it has restricted free speech or academic freedom on the basis of said speech representing harassment. The scheme will end up having to make judgements on harassment too – on impossibly tight timescales.

We might have reasonably expected a chunk of material from both the OIA and OfS on how the systems will work together and, indeed how they will work together. We might also have expected OfS to say “oh and we’ll use the OIA Good Practice Framework to assess how you handled the issue internally”, but no.

Interaction with the statutory tort

If you followed the back end of this Act’s record-breaking two year passage, you’ll recall that most of the arguments were about a statutory tort that allowed those whose freedom of speech had been restricted to seek satisfaction via the courts.

This was left in a state where a person could apply for an injunction at any time (against the same list of respondents, and for the same reasons, as the rest of the bill). For other purposes the OfS or OIA scheme needed to have been completed first.

You would think, therefore, that the OfS scheme would include consideration as to what would happen if an injunction under section 4 was in place, and at what point a complaint that had been through its process would be eligible to go to court (and indeed, what OfS’ role in this would be).

Not only is there no consideration of any of this in the proposed scheme, there is also no information regarding when the statutory tort will be enacted. It did not become law when the bill did, or via the commencement (number 1) regulations over the summer, and although we are told that various chunks of the act will become law on 1 August 2024 (to make the OfS scheme work), there’s no indication as to when the tort will happen.

For a provision that drove multiple rounds of parliamentary ping-pong right up to the day before the bill would have fallen, it does seem very odd that there’s been no hurry to enact it. And it seems doubly odd that the plans for the scheme don’t mention it.

How long?

In many complaints systems, not least the OIA system, the idea that someone making a complaint should have some idea of how long it will take to get a result. It is not always possible to give exact dates or deadlines for resolution – as above, some complaints are complex – but there is a general expectation that you’d be kept up to date and would have someone to talk to about the progress of the case.

This is important, for example, when a complaint is linked to a professional issues (fitness to practise, for example) where there is a hard or immovable deadline, the team can be notified and the complaint priorities.

There’s no expectation management on timings within the scheme – and no way in which additional information could be fed in (for example on deadlines) outside the initial submission. OfS is surprisingly happy to determine that a full provider investigation into this kind of complex issue should take around 30 days, but is happier to give itself some leeway.

Either way, if someone is making a complaint they need to be kept informed in a timely way – and amid all of the requirements placed on everyone else, it feels like there should be a promise that OfS will do this.

General delays

The Higher Education (Freedom of Speech) Bill was introduced in May 2021. It was carried over between parliamentary sessions in April 2022, and finally became law in May 2023. Throughout this period (the longest passage in parliamentary history, by some counts) we were assured that the issue was a pressing and urgent one that required swift and decisive action.

As 2023 comes to an end, the majority of the act sits uncommenced on the statute book. Other than the appointment of Arif Ahmed, nothing has happened until the publication of this consultation – which sets out the complaints scheme (and thus the powers needed to operate it, including the requirements on providers and SUs) will commence in August 2024. The provisions allowing OfS to make freedom of speech a condition of registration, which (in a manner of speaking) it already is, will not be introduced until 2025. Neither will the stuff about monitoring reliance on overseas funding.

The lack of urgency is rather surprising under the circumstances. It is possible that a new government may simply decide not to enact these provisions, citing the reduction of burden as a reason. You would think, for that reason alone, the current administration would want to get a wiggle on.

Leave a Reply