DfE enacts the free speech rules it planned to last year
David Kernohan is Deputy Editor of Wonkhe
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Back in June last year, the Department for Education told us it would be enacting some of the remaining parts of the Higher Education (Freedom of Speech) Act that deal with the OfS’ complaints mechanism (section 8) and the OfS’ applicable conditions of registration (section 6) with the mildest of tweaks.
The section 8 complaints scheme was slated to be amended to exclude students, who would instead have recourse, as now, via the Office for the Independent Adjudicator. The OfS’ complaints scheme will cover only staff, external members, and non-student members.
Today’s Written Ministerial Statement confirms that this is still the plan – though it would eventually require (in the absence of opening the Henry VII powers can of worms) primary legislation. That’s not to say that OfS simply can’t start running a complaints scheme covering only the groups DfE want to cover anyway, it’s just a matter of legislative neatness (and would probably be done alongside the repeal of the statutory tort and duties on student unions). There’s rules for the scheme to come from OfS before it becomes operational on 1 September this year.
The development of the specific conditions of registration described in Section 6, amusingly enough, are something that OfS has the power to do anyway – though it would probably need to consult on the new conditions before they could come into force in April 2027. That’s where the traditional “up to £2m in fines” language comes from: the current maximum tariff for regulation condition breaches.
The curious thing is the timing of all this. We are days – weeks at most – away from Justice Lieven’s judgement in the case of University of Sussex vs Office for Students and if you have been following that story you will know that OfS’ ability to fairly and reasonably rule on matters of freedom of speech (and for that matter, conditions of registration) is under serious question.
Giving OfS new statutory powers at this moment is a decision that is very much hostage to fortune – any number of likely findings may constrain or alter the way the regulator investigates alleged breaches of academic freedom or freedom of speech, and there are even questions about the rights OfS has to dig into governing documents at universities.
If OfS is to run a complaints scheme that will investigate in a similar manner to the way the Sussex case played out – I’m taking the blanket coverage of the underlying issue in the Telegraph as the complaint that sparked the investigation – then it is taking on a great deal of legal risk, and can look forward to spending significantly more time in the High Court. To be fair, it has the extensive legal team required on hand, but one cannot help but wonder whether resources and time could be better spent dealing with some of the problems that students and the sector are currently struggling with.
The good news is that OfS went through all the fun of consulting on a complaints scheme before, so they can just dust that off, cross out any mention of students and students unions and go with it.
I wonder if their particularly robust section on frivolous or vexatious complaints made it through the consultation process – it gives them the ability to dismiss any claim they think is trivial.
The legal basis of the complaints scheme and the OfS’s powers and administration under it are different from the conditions of registration. The scheme aims (as regards financial outcomes) at compensation, so the amounts payable would generally be much smaller than the potential fines for compliance failures under the conditions of registration. So JR, which is hugely expensive, is unlikely to happen often if ever, as there would be little point; and would be arguably a misuse of charitable funds (for which trustees can be personally liable) unless for a properly justifiable purpose.
I know it’s a fairly small scale dig but it’s kind of telling that this is not in any way focused on students and their pressing issues at all, it’s entirely to do with people outside the industry projecting their own privileged pasts and current ideological obsessions onto the sector – so much for the ‘office for students’.
In the current briefings on this, there is a fairly worrying focus on ‘jobs which require a particular ideology’ – I can only assume this refers to jobs related to EDI – and Universities do actually have a duty to be inclusive as per the Equality Act… Or maybe it’s to do with specific research jobs related to projects which, for instance, are focused on Queer or Trans experiences as a potentially positive thing? Either way it feels this is all heading to a pretty unpleasant place where Universities can be fined millions for adhering to their corporate values of diversity and inclusivity, which even if not always sincere are still fundamentally a positive thing.