GuildHE has responded to the OfS consultation on a new free speech complaints scheme. Read the full GuildHE response and blog below by Alex Bols, GuildHE Deputy CEO.

Developing a free speech complaints scheme in England

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. 

The provision of the OfS complaints scheme is covered in Schedule 6A of the Higher Education (Freedom of Speech) Act 2023. However, as a complaints scheme rather than an ombuds scheme there are a number of features that need to be considered further. 

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. 

We 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. The OfS scheme is only investigating the free speech aspects of the complaint, and these complaints are often highly complex with other interrelated aspects such as harassment. If complaints only go to the OfS once they have completed institutional processes it will mean that the institutional scheme can disentangle some of these issues. Indeed it is worth noting that the Free Speech Act allows for this in para 5(2)(b) of schedule 6A, that the scheme may include provision that “a free speech complaint is not to be referred under the scheme until the complainant has exhausted any internal procedure for the review of complaints”.

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. We believe that it should be closer to the 90 days that is currently used by the OIA. 

Secondly, the proposed OfS scheme allows complaints to be made up to 12 months after the last “adverse consequence”. It is true that adverse consequences may not be immediately evident but the current wording of the consultation means that complaints could be brought many years after the incident. We believe that there should be a statute of limitations that complaints must be brought within 12 months of the last adverse consequence and within five years of the incident taking place to allow appropriate record keeping to be in place as well as timely recollections of those involved. 

Other areas that should be tightened up include the proposals around “visiting speakers” which we believe should only be defined as such once they have gone through the institution’s visiting speakers process. This will prevent confusion about who can make invitations, rather than any student or staff member at an institution issuing an invitation and that person automatically being considered a “visiting speaker”. 

Finally, we believe that the OfS should provide more detail on how they will ensure that the costs are appropriate so that they don’t continue to escalate or take away resources from core teaching and learning activities. The OfS should also conduct a review of the effectiveness of the scheme after a year to identify ways of enhancing the scheme.

Read the full GuildHE response to the consultation