Dr Alex Bols spoke at the conference Next Steps for Freedom of Speech at UK Higher Education on 23 April 2024, organised by Westminster Higher Education Forum and Lord Griffiths. The content of his speech is published below.

Keynote speakers at the conference included: Charlotte Corrish, Head of Public Policy, Office of the Independent Adjudicator; Professor Adam Habib, Vice-Chancellor, School of Oriental and African Studies; Jennifer Cannon, Head of Fostering Good Relations Policy, Equality and Human Rights Commission, Smita Jamdar, Partner and Head of Education, Shakespeare Martineau, and Dr Alex Bols, Deputy CEO, GuildHE.

GuildHE responded to the OfS consultation on a new free speech complaints scheme on 5 March 2024. Read the full GuildHE consultation response and accompanying blog by Dr Alex Bols.

INTRODUCTION

Thank you Lord Griffiths and to reiterate comments about the excellent contributions so far. I’m Alex Bols the Deputy CEO at GuildHE representing over 60 smaller and specialist universities and colleges across creative and professional higher education. Because of the size of the institutions that I represent some of the challenges that our members face can be quite different from those in larger institutions, both in terms of the substance but also in terms of the resources that they have to deal with these issues when they do arise – and this diversity of the sector is hugely important to remember when considering the way in which regulation is implemented.

I wanted to start by reiterating the importance of freedom of speech and academic freedom in universities, something that Adam Habib has just addressed so eloquently.

This is something that GuildHE have worked closely with Universities UK and AdvanceHE over a number of years and in December 2022 we produced a joint statement along with NUS and the Committee of University Chairs where we emphasised the importance of academic freedom and freedom of speech and that without these universities would not be able to fulfil one of their most essential aims: the advancement of understanding and pursuit of truth. In the interests of time I won’t say more on the importance of free speech at this point given what colleagues have already said, other than to support their views.

OFS CONSULTATIONS

Smita Jamdar highlighted the responsibilities on universities resulting from Free Speech Act and the Office for Students in England is currently in the process of operationalising this through a series of consultations about how they will deliver their “secure” duty, with further consultations to follow on their “promote” duty and a likely new condition of registration. 

I therefore wanted to focus on these consultations in a bit more detail as we will need to get these processes right to ensure that free speech is protected in the most effective way and that bad processes don’t end up obscuring an already complex space. 

As part of their duties to secure free speech the Office for Students is consulting on the creation of a new free speech complaints scheme. It is important to highlight that there is a major difference from the scheme run by the Office of the Independent Adjudicator (OIA) namely that it is a complaints scheme rather than an ombuds scheme. This means that the OfS scheme will be looking at the merit of the complaint and assessing the evidence rather than primarily assessing whether the institution’s own complaints processes have been followed correctly and are appropriate, as the OIA does. Something that I’m sure Charlotte will cover later.

Firstly, the consultation proposes that complainants can go directly to the OfS, even if they are still mid-way through an institutional complaints process, if the institution hasn’t dealt with the complaint within 30 days of the start of the process. There is also a suggestion that the complainant would still be able to progress the complaint through institutional process as well, resulting in the rather strange situation of the same complaint being considered by two different bodies concurrently – potentially with different outcomes. 

This duplication of resource adds in an additional layer of confusion and I believe that complainants should only be able to take complaints to the OfS once they have completed the institutions’ own process or after an unreasonable delay. 

It is proposed that the OfS scheme only investigates the free speech aspects of the complaint, and these complaints are often highly complex with other interrelated aspects such as harassment. If complaints go to the OfS once they have completed institutional processes it will mean that the institutional scheme can disentangle some of these issues. 

The OfS is rightly concerned that processes should be as fast as possible and it is important that complaints can go direct to the OfS if there is an unreasonable delay but we believe that the proposed 30 days is arbitrary and does not reflect either the complexity of these complaints or the logistical challenges of gathering all the evidence and assembling the panel within the timeframe. Not completing institutional processes could also result in a real risk that the OfS gets so many complaints that it can’t deal with them all which ends up bringing the scheme into disrepute. We therefore believe that the time-limit should be closer to the 90 days that is currently used by the OIA. 

Other issues that I could pick up in the Q&A include tightening up definitions of adverse consequences and visiting speakers but I just wanted to touch on the third consultation that the OfS has recently published on their new guidance.

THIRD OFS CONSULTATION

This is something that many institutions were calling for following the publication of the first two consultations to give a bit more clarity on particular scenarios. The difficulty that the OfS have come up against is that by trying to provide so many examples across so many different areas is that they have necessarily kept each of them to a few hundred words and so ended up losing much of the nuance and context that would be necessary to get a fuller understanding of the case and whether the university had taken reasonably practicable steps in the example and so the examples end up coming across as almost a caricature of a real-life example. 

Fuller case studies will emerge as the OfS deals with particular complaints and publishes reports on these but it does mean than in the meantime we are left with a set of examples that portray universities in a negative light suggesting simplistic responses to difficult questions. 

The guidance also does not properly address the balancing of harassment and free speech duties, which is one of the areas our members tend to find most difficult and complex. The guidance suggests free speech should be prioritised over all else, which may conflict with previous messaging from OfS on harassment and the upcoming condition of registration. 

So to conclude, given the importance of free speech and academic freedom it is even more important that we get the processes to defend these principles right – although as was highlighted earlier, processes will only ever get you so far, ultimately it’s all about culture.