The Office for Students (OfS) has opened up its proposals for a new free speech complaints scheme to consultation.
The free speech complaints scheme will allow individuals to complain that higher education institutions have failed in their legal duty to “take reasonably practicable steps to secure free speech within the law”. Consultation on the proposed scheme will run until 10th March, and the scheme will come into force on 1st August 2024. CAF provides a summary of notable features of the proposals below:
Under the proposals it will be possible to register complaints about the governing body of any higher education provider registered with the OfS. This includes the governing bodies of all universities and some higher education colleges. It will also be possible to register complaints against any students’ union that is eligible for financial support. This includes the vast majority of “official” student unions at universities.
Who can complain?
Anyone who is or has been a member of staff, student, applicant for an academic job, visiting speaker, or recipient of an invitation to speak at a relevant organisation can complain.
None. The proposed complaints scheme is entirely free to use.
Window for making complaints
Complaints must be made within 12 months of an adverse consequence that a complainant alleges they have suffered as a result of the organisation’s failure to take reasonable steps to secure free speech or academic freedom. Complaints should be made after the complainant has raised the matter with the relevant organisation, and the organisation has had 30 days to resolve the issue.
Anonymous complaints will not be considered. The OfS will make “reasonable attempts” to conceal a complainant’s identity if the complainant requests this. The OfS “cannot guarantee that we will be able to maintain a complainant’s anonymity.”
Requirements for a complaint to be considered
For a complaint to be considered by the OfS, it must make two claims:
- That the complainant has suffered “adverse consequences” as a result of the action or inaction of the respondent (governing body or student’s union). The adverse consequences need not be financial. They could, for instance, be a student’s removal from a course, or the disciplining of an academic member of staff.
- That the respondent has failed in its duty to take reasonably practicable steps to secure free speech within the law. This duty includes securing academic freedom for academic staff, defined as “the freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.
Decisions on the merits of a complaint
The OfS will decide that a complaint is either justified, partly justified, or unjustified.
- Justified. The OfS will decide that a complaint is justified if it seems to it more likely than not that the respondent has failed in its duty to secure free speech, and the complainant has suffered adverse consequences.
- Partly justified. The OfS will decide that a complaint is partly justified if it seems to it more likely than not that the respondent has failed in its duty, but that the complainant has not suffered adverse consequences.
- Unjustified. The Ofs will decide that a complaint is unjustified if it seems to it more likely than not that neither has the respondent failed in its duty, nor has the complainant suffered adverse consequences.
Outcomes of the complaint
If the OfS decides that a complaint is justified or partly justified, it may make a “recommendation” to the respondent. Thus, the OfS may make a recommendation to a respondent, even when the complainant has not suffered adverse consequences. The recommendation can be anything, provided it recommends that the respondent “does something or refrains from doing something”, and “arise[s] from the free speech claims in the complaint”. Recommendations can include payment of financial compensation to the complainant. The OfS will specify a time limit in which the respondent must enact the recommendation. If the respondent does not enact the recommendation within the time limit, the OfS may start a civil procedure case with the aim securing an injunction. When the OfS decides that a complaint is justified or partly justified, it will ordinarily publish this decision.
The proposals closely follow the stipulations of the Higher Education (Freedom of Speech) Act. In effect, they give the OfS a broad power to order universities to take specific courses of action to secure free speech and academic freedom. It remains to be seen what use the OfS will make of this power – whether or not, for instance, it will confine itself mainly to issuing fines. Further, these “orders” can only ultimately be enforced if the OfS successfully gains an injunction under the Higher Education (Freedom of Speech) Act, though universities may prefer to comply than risk court.
One concern about the OfS’ new power to regulate universities, voiced by supporters of academic freedom, is that it compromises universities’ autonomy. Universities, so the argument goes, ought to be to left to secure academic freedom themselves, and not have it imposed on them by an external body. This is a significant consideration, though it is worth noting that today university policy relating to academic freedom is already substantially swayed by external forces, including social media, small groups of activists, and large organisations including the government and Stonewall.
It is to be hoped that the OfS’ new complaints scheme will protect academic freedom. In the meantime, CAF encourages all academics who are supportive of academic freedom to respond to the consultation.