The government has finally announced a timetable for introducing the Office for Students’ free speech complaints scheme, bringing to an end nearly two years of wholly unnecessary delay during which too many academics whose rights may well have been breached have been left in legal and institutional limbo.
The announcement shows that sustained pressure can make a difference, and is a testament to the efforts of those who have pressed for progress, including CAF, which helped organise letters, circulate briefings, and draft parliamentary questions pressing for action.
So while this is long overdue, it is nonetheless a welcome step forward.
To understand why, it’s worth recalling that, on paper at least, universities have long been under a duty to uphold free speech. Section 43 of the Education Act 1986 imposed such a duty decades ago. But it was never taken especially seriously by much of the sector, largely because it lacked any real enforcement mechanism. That is precisely what the new complaints scheme is designed to supply, giving the regulatory regime established by the Higher Education (Freedom of Speech) Act 2023 its teeth.
And they are pretty sharp – if not quite in the Cerberus league of underworld guardians envisaged by the legislation as originally drafted, then nonetheless keen enough to nip at the trouser seat of the odd errant vice-chancellor. If implemented as planned, the scheme will, for the first time, create a free, regulator-backed route by which academics, visiting speakers and other non-student members of a university can challenge restrictions that breach their rights to free speech and academic freedom. The regulator will then be able to investigate those complaints and recommend remedies, including requiring universities to review decisions, pay compensation, or change their internal processes.
Just as importantly, from April 2027 the wider regulatory framework will place a far more serious constraint on university decision-makers’ tendency to let vague and legally questionable understandings of “hate speech” and “harassment” encroach on lawful expression. Universities that breach their duties under the 2023 Act will face the possibility of substantial financial penalties: either £500,000 or 2 per cent of their income, whichever is higher — and in practice, it is likely to be the latter. Analysis by CAF Advisory Board member Professor Abhishek Saha suggests that, for Russell Group universities, this could translate into fines ranging from around £10 million to over £60 million. In the most serious cases, the consequences could extend to deregistration, with all that implies for the loss of public grant funding and access to student-support arrangements.
If all goes to plan, the scheme will be up and running by the start of the autumn term.
There are, however, still challenges ahead. The scheme will only be as effective as the cases that come before it. There is a real risk, especially in the early stages, that complainants struggle to navigate the process or to frame their concerns in a way that engages the relevant legal duties. If that happens, the scheme could appear less workable than it actually is.
Speaking to the Times Higher Education this week, CAF Director Dr Edward Skidelsky commented: “If the pipeline of cases is well formed and the OfS is willing to act decisively, then this scheme could, over time, begin to shift institutional behaviour in a meaningful way. But that will depend not just on the formal powers, but on how confidently and consistently they are used.”
Without some degree of upstream filtering and case-building, the OfS may find itself confronted with a large volume of complaints that are either weakly framed or legally inchoate. That is not a criticism of complainants – most academics are not expected to have, or to find the time to develop, a working grasp of statutory duties, conditions of registration, or the intricacies of the regulatory framework.
The effectiveness of the scheme will therefore depend, in part, on whether complaints are presented in a way that allows the OfS to engage with them efficiently and on their merits, rather than getting bogged down in additional case preparation or repeated requests for further information. There is also a risk that complaints with genuine merit are not pursued or are dismissed at an early stage simply because the underlying issues are not clearly articulated.
This is where organisations like CAF will have an important role to play.
Over the coming months, as further detail emerges from the OfS, we will be preparing for the scheme’s launch by updating our website, refining our intake and triage processes, and ensuring that we are able to identify the core issues in a complaint at an early stage and help structure them in a way that reflects the relevant legal and regulatory tests.
That may involve assisting individuals in navigating any necessary internal procedures, clarifying the issues in dispute, and, where appropriate, supporting the preparation of complaints to the regulator.
We will also be working to ensure that as many academics as possible are aware that this route exists. One of the lessons from a comparable regulatory framework in the EU – which created out-of-court dispute settlement bodies for free speech complaints under Article 21 of the Digital Services Act – is that new complaints mechanisms do not automatically generate their own demand. They have to be made visible, understood, and, if they are to function effectively, used. Without that, even the most carefully designed system can sit largely dormant.
Handled well, the result of the roll-out phase should be a body of decisions that begins, over time, to give real shape to universities’ free speech duties. If it is not, there is a risk that the scheme becomes either overwhelmed or underused – and that the promise of the 2023 Act remains, once again, only partially fulfilled.
Academics who have encountered similar issues, or who are considering making use of the new scheme, are welcome to get in touch with CAF in confidence at manager@afcomm.org.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.