Consultation on the OfS’s new free speech complaint scheme

The consultation document can be downloaded here.

Question A: Do you have any comments on Proposal A regarding what a free speech complaint is?

We support the proposed rules governing what a free speech complaint is.
We note that further guidance is expected to be issued by the OfS on what are “reasonably practicable steps” with regard to the A1 duty. We invite the OfS to make it clear in this guidance that freedom of speech within the law should take primacy over other considerations (such as reputational risk to the university) when the duty is balanced in practice by higher education providers. We also invite the OfS to give specific and relevant examples in this guidance of the kind of things universities would need to do (e.g., ensure that internal research ethics committees do not block research by members of academic staff for ideological reasons that are in breach of their duties to secure academic freedom) to comply with their A1 duties.

Question B: Do you have any comments on Proposal B regarding who can complain?

Regarding the proposed definition of “visiting speaker” (Annex B, Section T), we strongly agree with the OfS that a refusal by a higher education provider to approve an invitation to a speaker may itself give rise to questions about whether there has been a breach of a duty to secure free speech within the law (paragraph 57).

We suggest that the OfS broaden the definition of “visiting speaker” to include speakers who can show on the facts that their invitation by a member was in contemplation and that they would have been invited but for some policy or practice at the institution which was unlawfully chilling. This would include, in particular, speakers who members of staff wanted to invite but were prohibited from doing so by university management in breach of the free speech duty.
Regarding the proposed definition of “member of academic staff” (Annex B, Section T), we suggest broadening it to include those holding emeritus positions at the institution. Emeriti academic staff often tend to remain active at the university (despite not being formally employed under a contract of employment) and they typically perform academic activities and exercise academic freedom. We also suggest that OfS include in its definition of “member of academic staff” anyone who is on a formal academic visit to the institution for the purpose of engaging in teaching and/or research and is provided with facilities similar to academic staff at the institution.

Question C: Do you have any comments on Proposal C regarding complaints that we will not review?

We support the proposal that a 30-day period should normally elapse since the beginning of an internal process before OfS will review a free speech complaint (paragraph 64, and Annex B rule 17). In our view, 30 days strikes a sweet spot and will provide incentive for respondents to quickly resolve a claim internally. We also believe that in the real world, if the respondent is expediting their internal process and liaising properly with a complainant, the complainant will be unlikely to bring a complaint to the OfS even if 30 days have passed if they think that a result from the respondent is coming soon. If the period is set to longer than 30 days (such as 60 days), universities will have a reason to delay. We therefore urge the OfS not to increase this period beyond 30 days.

We strongly oppose the hypothetical alternative of requiring a complainant to have completed any internal process before they can use the OfS complaints scheme, as this would disincentivise respondents from dealing with free speech matters quickly.

We suggest that the beginning of an internal review process (for the purpose of the 30-day period rule) should be from the date that complainant submits an internal grievance, complaint, appeal, etc., rather than from the date that the respondent starts processing this submission. This would ensure that institutions do not have an incentive to delay the processing of internally received free speech complaints.

We invite the OfS to clarify what would happen if a complainant communicates their free speech concerns or complaints to the institution in a manner that does not clearly fall into an official internal disciplinary, complaints, appeals, grievance or similar internal review process. An example of this would be an email by a member of staff to their line manager expressing concerns that some internal policy might be a breach of the free speech duty. Would such an email trigger the 30-day period? In our view, staff, students and visitors are often unsure or unaware of the most appropriate internal review process to use for a particular free speech related complaint, and some clarification would be welcome.

We further suggest that the OfS add a requirement that in order to avail themselves of Annex B, rule 17, institutions need to have a dedicated internal free speech complaints webpage (in addition to any existing disciplinary, complaints, appeals, grievance or similar internal review process). Having a dedicated free speech complaints webpage would make it easier for complainants to complain internally for a perceived breach of the free speech duty. Such a webpage could be required to have the following characteristics:

* It should be easy to find, and should contain a relevant online complaint form to make a free speech complaint.
* The text in Proposal N (rule 60) must be displayed on this webpage.
* Institutions would be allowed to redirect complaints received on this dedicated free speech complaints page to some other internal review process if appropriate.
* Any submission to this webpage would trigger the 30-day period for the purpose of rule 17.

In our view, a dedicated free speech complaints webpage would to a large degree address the concerns expressed above about complainants often being unsure or unaware of the most appropriate internal review process to use for a particular free speech related complaint.
Regarding paragraph 61(b) (or Annex B, rule 13), we believe that the OfS should consider matters, factors or events which took place or had effect prior to 1 August 2024 where such matters, factors or events are relevant to a complaint about a free speech breach which is ongoing as of 1 August 2024.
We are concerned that the non-exhaustive list of circumstances in which the OfS may judge a complaint to be frivolous, trivial, or vexatious (Annex B, Rule 18) are too broad. In particular, the terms “aggressively” and “offensively” in Rule 18c can be interpreted subjectively and can thus result in arbitrariness. We invite the OfS to set out a narrower and more objective set of criteria it would use to judge a complaint to be frivolous, trivial, or vexatious.

Question D: Do you have any comments on Proposal D regarding time limits?

We are generally supportive of the 12-month time limit rule for complaints (Annex B, rule 19) but we believe there should be a qualification for exceptional circumstances. For example, there may be cases where there are some serious health or personal circumstances of the complainant that prevents them from making a claim within 12 months. Another example of an exceptional circumstance would be when new information comes to light a significant amount of time after the adverse consequence occurred.

Question E: Do you have any comments on Proposal E regarding submitting a complaint?

We support the OfS proposal to make reasonable attempts to protect the complainant’s identity if requested, unless OfS is legally required to reveal their identity (Annex B, rule 22). We think this is right as some complainants will reasonably fear adverse consequences or ostracisation if the fact of their making a complaint becomes known to the respondent and therefore may wish to remain anonymous.

We further note that for many classes of complaints, concealing the name of the complainant would not prevent just disposal of the complaint. For example, if a HEP has a policy that affects the complainant and has a chilling effect on free speech, and the OfS is capable of checking such a policy exists (they are often public) it should be possible to make a decision on whether such a policy represents a breach of the free speech duties without revealing the identity of the complainant.

There may be cases where the complainant has requested anonymity but where their complaint cannot be properly pursued without sharing certain information with the respondent that would likely lead to them identifying the complainant. In such cases, we suggest that the OfS inform the complainant of this fact and give them the opportunity to either withdraw their request for anonymity, or withdraw the complaint as per rule 51.

Question F: Do you have any comments on Proposal F regarding reviewing a complaint?

We support the OfS proposals (paragraphs 90-91) to retain discretion to determine what activities to undertake to conduct a review and what information from the complainant to share with the respondent.
The OfS has proposed to seek expert academic judgement only if it considers it appropriate to do so (Annex B, rule 31). We support this approach.

The A1 duty of the Act requires each higher education provider to take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to achieve the objective of securing freedom of speech within the law. Given the content-neutral phrasing of this duty, we believe that the OfS review of a complaint about suppression of free expression of views in breach of the A1 duty should not necessarily require expert academic judgement on the content of the views under question. In fact, in a majority of cases, the matter to be judged will be a mixture of law and fact. Academic staff – whether in articles, public lectures, or comments on social media – have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of adverse action from their institutions. The OfS must ensure that this freedom is broad, and not constrained by disciplinary boundaries or expert academic opinion. We further note that expert academic judgement will often be unfavourable to views which challenge the academic orthodoxy in a radical manner. History contains examples where novel theories on sensitive or politically charged questions were initially dismissed as meritless conspiracy theories by experts, only for these theories to become more accepted over time. Ideological censorship by fellow academics — often couched in the language of legitimate scientific criticism — is a real problem in science (see here and here).

Therefore, in reviews of free speech complaints (including those concerning securing the academic freedom of academic staff as required by the A1 duty of Act, subsections 5-7) we urge the OfS to adopt rules that, as far as possible, are content-neutral with respect to the speech of the complainant under question. Expert academic judgement should be sought only if truly relevant to the complaint. This approach should be also reflected in the further guidance to be issued by the OfS to institutions on what are “reasonably practicable steps” with regard to the A1 duty.

Question G: Do you have any comments on Proposal G regarding our decision and Notice of Complaint Outcome?

We suggest that the OfS undertake to complete all reviews within 6 months. In many cases, urgency would be of the essence. This will be particularly crucial for complainants who wish to make a civil claim under Section A7 of the Act as this avenue (except for injunctions) is only possible after the complainant has exhausted the free speech complaints scheme.

Alternatively, we suggest that if 4 months have passed since a complaint has been received by the OfS and a decision about a complaint not yet made, then the OfS should provide a “fast track” review process to these complainants — the “fast track” route would guarantee completion of the review within another 2 months based on whatever information is available.
The words “trivial” and “minor” are used in Annex B, rules 37 and 38 with regard to “adverse consequences” while the word “trivial” is used in Annex B, rule 18 with regard to the “matters” in the complaint. It is unclear to us whether there is some overlap here between the “matters” and the “consequences”, which could lead to potential confusion. We urge the OfS to clarify its meaning.

Question H: Do you have any comments on Proposal H regarding recommendations and suggestions?

We think it would be helpful if the OfS clarifies the difference between recommendations and suggestions and the potential consequences for a HEP not following its recommendations.

Question I: Do you have any comments on Proposal I regarding suspension and withdrawal?

No comments.

Question J: Do you have any comments on Proposal J regarding group complaints?

No comments.

Question K: Do you have any comments on Proposal K regarding representations?

We support the OfS proposal to retain flexibility on whether to seek representations, and agree with the OfS that unnecessary representations may introduce delay.

Question L: Do you have any comments on Proposal L regarding information requirements?

No comments.

Question M: Do you have any comments on Proposal M regarding a respondent’s duty to comply?

We strongly support the OfS proposal to include rules in the scheme to the effect that if a respondent fails to comply with a requirement imposed by the complaints scheme without good reason, then OfS may enforce the requirement in civil proceedings for an injunction (paragraph 136).

Question N: Do you have any comments on Proposal N regarding advertising the scheme?

We strongly support the proposed rules on advertising the scheme.

We believe that the text in Annex B, rule 60 should also be displayed on a bespoke free speech complaints webpage (see our response to Question C above).

Question O: Do you have any comments on Proposal O regarding charges, costs and fees?

We support the proposal that costs may be recovered from respondents in cases where the review finds the complaint justified or partly justified. This may act as a deterrent against breach of free speech duties.

Question P: Do you have any comments on Proposal P regarding the publication of information relating to the free speech complaints scheme?

No comments.

Question Q: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.

See answers above to Questions C, G and H

Question R: In your view, are there ways in which the objectives of this consultation that could be delivered more efficiently or effectively than proposed here?

Please refer to previous responses.

Question S: Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?

No comments.

Question T: Do you have any comments about any unintended consequences of these proposals, for example, for particular types of provider, constituent institution or students’ union or for any particular types of student?

No comments.

Document date: 04/03/2024