But why now?
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.