Consultation on the OfS’s new free speech complaints scheme

Annex B: Proposed rules of the free speech complaint scheme

The Office for Students free speech complaints scheme⁶³

Effective from 1 August 2024

The Office for Students (OfS) operates a free speech complaints scheme. We review complaints about free speech from students, staff, applicants for academic posts and (actual or invited) visiting speakers.

In these rules, references to ‘we’, ‘us’ and ‘our’ are to the Office for Students.

References to ‘you’ are to the person making the free speech complaint (the complainant) or to their appointed representative where the context requires.

‘Registered higher education providers’ are the universities and colleges that are registered with the OfS.⁶⁴

Terms in bold are explained in the Glossary at the end of these rules.   

Section A: What is a free speech complaint?  

1. The OfS reviews free speech complaints about the governing bodies of registered higher education providers or of constituent institutions of those providers, and about relevant students’ unions. In these rules, we refer to the body that is being complained about as a respondent.
2. A free speech complaint is a complaint made by an eligible person that:
   1. Claims that the person making the complaint has suffered adverse consequences (which need not be financial) as a result of action or inaction of a respondent; and
   2. Claims that, or gives rise to a question as to whether, the action or inaction was a breach of the respondent’s free speech duty.
3. The free speech duty for governing bodies of registered higher education providers and their constituent institutions is set out in section A1 (Duty to take steps to secure freedom of speech) of Part A1 of HERA.
4. The free speech duty for relevant students’ unions is set out in section A5 (Duty to take steps to secure freedom of speech) of Part A1 of HERA.
5. In these rules, we refer to the claims described in rule 2 as free speech claims.
6. A free speech complaint may be about more than one respondent. References in these rules to a ‘respondent’ are to each respondent unless the context requires otherwise.
7. A free speech complaint may include claims other than free speech claims.

Section B: Who can complain?  

8. You can make a free speech complaint about a governing body of a registered higher education provider, or of a constituent institution, if you are an eligible person as follows:
   1. A person who is or was a student, member or member of staff of the registered higher education provider or constituent institution (as the case may be);
   2. A person who has applied to become a member of academic staff of the registered higher education provider or constituent institution (as the case may be); or
   3. A person who was, or was at any time invited to be, a visiting speaker at the registered higher education provider or constituent institution.
9. You can make a free speech complaint about a relevant students’ union if you are an eligible person as follows:
   1. A person who is or was:
      1. A member or member of staff of the relevant students’ union;
      2. A student of a registered higher education provider to which the relevant students’ union relates; or
      3. A member or member of staff of a registered higher education provider to which the relevant students’ union relates or of any of its constituent institutions; or
   2. A person who was, or was at any time invited to be, a visiting speaker at the relevant students’ union.
10. We will not review a free speech complaint made by personal representatives of the estate of a person who has died, unless the free speech complaint was submitted to us before that person died.

Section C: Complaints that we will not review

11. We will not review a complaint unless it is a free speech complaint.
12. A free speech complaint may include claims other than free speech claims. However, we will only review those other claims if they include information that is relevant to the free speech claims.
13. This scheme is not retrospective. This means that we will not review a free speech complaint to the extent that it concerns matters or events before 1 August 2024. Where those matters or events were ongoing as of 1 August 2024, we will review them in relation to the period from 1 August 2024.
14. We will not review a free speech complaint about a respondent if it was not a registered higher education provider, a constituent institution or a relevant students’ union when the action or inaction being complained about took place.
15. We will not review a free speech complaint if it appears to the OfS that proceedings relating to the same subject-matter as the free speech claims in that complaint, to which you are or were party, are being, or have been, dealt with by a court or tribunal. ‘Court or tribunal’ does not include a panel established by the respondent, in connection with its own internal disciplinary, complaints or appeals processes. Nor does it include a panel established by a Professional, Statutory and Regulatory Body where this was not at your request. We will consider that proceedings have begun once the application or claim has been submitted, including where that application or claim is seeking permission to bring proceedings. We may decide to review a free speech complaint where permission to bring any such proceedings was refused or where any such proceedings have been formally stayed or adjourned.
16. We will not review a free speech complaint if it appears to the OfS that a complaint brought by you and relating to the same subject-matter as the free speech claims in that complaint, is being, or has been, dealt with under the student complaints scheme.
17. This rule applies where the respondent has a disciplinary, complaints, appeals, grievance or similar internal review process under which the free speech claims in your free speech complaint could be or are being considered. In those circumstances, we will normally only accept a free speech complaint once you have completed that process or, if earlier, once 30 days have elapsed since that process began.
18. We will dismiss a free speech complaint at any time if, in our judgement, it is frivolous or vexatious. The following non-exhaustive list illustrates when we may determine that a free speech complaint is frivolous or vexatious:
    1. The free speech complaint provides no new information to that set out in a free speech complaint previously submitted by you and considered under this scheme.
    2. You continually change the substance of a free speech complaint.
    3. You have acted aggressively, or offensively, or abusively, or have made unreasonable demands on us.
    4. Your free speech complaint does not clearly identify issues or matters that are the subject of the complaint.
    5. You have not complied with our information requirements (section L) on several occasions.
    6. Your free speech complaint concerns matters which in the OfS’s judgment are trivial.

Section D: Time limits

19. A free speech complaint must be submitted to the OfS by 12 months after the date on which it appears to the OfS that the adverse consequences that are alleged in the free speech claims in the complaint, last occurred.

Section E: Submitting a free speech complaint to us

20. A free speech complaint must be made in writing, by submitting a complaint form to us. You will also be able to submit any documents that are relevant to your complaint. The complaint form is available on our website. The complaint form and any supporting documents may be submitted online or by post. Instructions on how to do this are on our website. If you have a disability, we can adjust this process to enable you to access this scheme. Guidance on how to request adjustments is set out on our website.
21. When you submit a free speech complaint to us, we will ask you for personal information including your name and contact details.
22. We cannot review anonymous complaints. If you ask us to protect your identity from the respondent or other persons, we will make reasonable attempts to do so, unless we are legally required to reveal your identity. However, we cannot guarantee that we will be able to maintain your anonymity. The OfS does not have formal powers to protect whistleblowers.
23. You may appoint a representative to correspond with us about your free speech complaint on your behalf. We will then normally correspond with your representative, rather than directly with you. This means that you should make sure that your representative understands your free speech complaint, will act in your best interests and can keep you informed throughout our review process. Where you have appointed a representative, ‘you’ will refer to your representative where the context requires. If you tell us that you no longer wish your representative to act for you, we will tell your representative and will then correspond directly with you. You are not required to appoint a representative.

Section F: Reviewing a free speech complaint

24. When we receive a complaint, we will decide whether we can review it in whole or in part. This means that we will consider whether:
    1. It is a free speech complaint under section A;
    2. You are an eligible person;
    3. It is about a registered higher education provider, a constituent institution or a relevant students’ union and
    4. We cannot review some or all of the complaint under section C (Complaints that we will not review) or section D (Time limits) above.
25. We may share information with the respondent and/or with other parties, to help us decide whether we can review some or all of the free speech complaint.
26. We will tell you in writing whether, and to what extent, we can review your free speech complaint. We will also say why we have reached this decision. Where we consider it appropriate, we will also tell the
27. Where we decide that we can review a free speech complaint, we will decide what activities to undertake to conduct that review.
28. We will look at the information that you send us. We may ask you specific questions about a free speech complaint or require additional information from you. We will do this where we consider it to be appropriate.
29. We may share some or all of the information that you send us with the respondent. We may seek the respondent’s representations on that information. We may ask the respondent specific questions about a free speech complaint or require additional information from the respondent. For example, we may ask questions or require information about the respondent’s policies or procedures, or its decision-making processes where these are relevant to the free speech complaint. We may do one or more of these things where we consider it to be appropriate.
30. Our starting point will usually be to conduct a paper-based review of a free speech complaint. However, where we consider it to be appropriate, we may have one or more face-to-face meetings with you and/or the respondent and/or other persons that we consider may have information or expertise that is relevant to your free speech complaint. We may ask you, the respondent, or those other persons, questions at such a meeting. We may allow you, the respondent and/or those other persons to ask each other questions at such a meeting.
31. Where we consider that a free speech complaint concerns academic judgement, we may seek expert academic judgement to inform our review. We will do this only if we consider it appropriate. We may seek expert advice from persons with other forms of expertise, where we consider it appropriate.
32. We may seek to resolve the free speech complaint without conducting a full review or deciding the extent to which your complaint is justified. This is called settlement. Any proposed settlement will be subject to your agreement and the agreement of the An agreed settlement would result in the withdrawal of your free speech complaint.
33. We may decide to dismiss your free speech complaint, in whole or in part, at any point during our review and without making a decision about the extent to which it is justified. We may do this if we decide, during that review process, that your complaint is not a free speech complaint, you are not an eligible person or we cannot review some or all of your complaint under section C or section D above. For example, we may do this on the basis of information that comes to our attention during our review.

Section G: Our Decision and Notice of Complaint Outcome

34. When we have reviewed a free speech complaint and consider that we have all the information and evidence that we need to make a decision about the extent to which it is justified, we will make a decision. We will do this as soon as reasonably practicable after we have received a free speech complaint.
35. We will issue a Notice of Complaint Outcome in writing to you and to the respondent setting out our decision. Where you have appointed a representative, we will issue the Notice of Complaint Outcome to both of you.
36. The Notice of Complaint Outcome will state whether the free speech complaint is justified, partly justified or not justified, and the reasons for this. See rule 41 below in relation to the issue of a Notice of Complaint Outcome following settlement.
37. If it appears to the OfS that:
    1. It is more likely than not that the respondent has breached, or is breaching, its free speech duty; and
    2. It is more likely than not that you have suffered adverse consequences, that are more than minor or trivial, as a result of the breach referred to in 37a,

then we may determine that your free speech complaint is justified.

38. If it appears to the OfS that:
    1. It is more likely than not that the respondent has breached, or is breaching, its free speech duty; and
    2. It is more likely than not that:
       1. you have not suffered adverse consequences or
       2. you have suffered only minor or trivial adverse consequences as a result of the breach referred to in 38a,

then we may determine that your free speech complaint is partly justified.

39. If it appears to the OfS that it is more likely than not that the respondent is not breaching and has not breached its free speech duty, we may conclude that your complaint is not justified.
40. We will not make a decision about the extent to which a free speech complaint is justified, where we have agreed a settlement with you and the respondent in respect of that complaint. However, we will still issue a Notice of Complaint Outcome in those circumstances, to confirm that the free speech complaint has been resolved through a settlement and the terms of that settlement.
41. We will not make a decision about the extent to which a free speech complaint is justified, where that complaint has already been withdrawn or dismissed, under these rules.
42. If a free speech complaint is against more than one respondent, then we will determine the complaint separately against each respondent.

Section H: Recommendations and suggestions

43. If we decide that your free speech complaint is justified or partly justified, we may make a recommendation to the respondent. The recommendation will be set out in the Notice of Complaint Outcome.
44. A recommendation may be a recommendation that the respondent:
    1. Does anything that is specified in the recommendation, which may include the payment of sums specified in the recommendation; or
    2. Refrains from doing anything specified in the recommendation.
45. We will not make a recommendation arising from claims included in your free speech complaint that are not free speech claims.
46. We expect the respondent to comply with any recommendation we make in full and within the time limits we set, and to report to us when it has done so.
47. We may also make suggestions in any Notice of Complaint Outcome. Those suggestions may suggest that the respondent considers doing or not doing something.
48. The operation of this scheme does not in any way affect the ability of the OfS to investigate and/or take any form of regulatory or enforcement action in respect of any non-compliance with any of the OfS’s conditions of registration or other regulatory requirements.

Section I: Suspension and withdrawal

49. We may suspend our initial consideration or review of a free speech complaint if:
    1. You do not comply with an information requirement under section L; or
    2. You can no longer be contacted through the contact details that you have provided to us.
50. We may also decide to suspend our initial consideration or review of a free speech complaint where it is part of a group complaint, in the circumstances set out in rule 52 below.
51. You may withdraw your free speech complaint at any stage before we issue a Notice of Complaint Outcome or dismiss the complaint.

Section J: Group complaints

52. Where we receive a series of free speech complaints from more than one person about the same respondent and the same subject matter, we may decide to treat these complaints as a group complaint. The complaints may have been submitted individually, including where a complainant has no knowledge of the other complaint(s) in the group, or together in a group.
53. We may decide to consider the free speech complaints within a group complaint together. Alternatively, we may decide to review one of the free speech complaints in a group complaint, the lead complaint, in the first instance, and to suspend our review of the other free speech complaints within the group complaint, pending the outcome of our review of the lead complaint.

Section K: Representations

54. When we are deciding:
    1. Whether a complaint is one that we can review under these rules;
    2. The extent to which a free speech complaint is justified; or
    3. Whether to make, and the form and content of any, recommendations or suggestions about a free speech complaint,

we will seek representations from you and/or from the respondent before making a final decision, if we consider it is appropriate to do so, and in the manner we consider appropriate.

Section L: Information requirement

55. We may require you and/or the respondent to provide us with information about a free speech complaint. For example, we may require this to help us to determine the extent to which we can review the complaint, or the extent to which it is justified. A requirement to provide information will be set out in writing in a notice.
56. You and the respondent must provide us with such information as we specify in the notice referred to in rule 55 at the time and in the manner and form specified in that notice.

Section M: Respondent’s duty to comply

57. The respondent to a free speech complaint must comply with any requirements that are imposed on it by, or under, these rules.
58. If a respondent fails to comply with a requirement imposed by or under these rules and does not satisfy us that it is unable to comply, we may enforce the requirement in civil proceedings for an injunction. This is in accordance with paragraph 11 of Schedule 6A to HERA.

Section N: Advertising the scheme

59. A registered higher education provider, constituent institution and relevant students’ union should:
    1. From 1 August 2024, include the text in rule 60 in a prominent place in the following documents or information sources:
       1. Staff and student induction materials.
       2. Free speech code of practice and any process or procedure for managing speaking events, for internal or external speakers.
       3. Any disciplinary, complaints, appeals, grievance or similar internal review process.
       4. In the case of a registered higher education provider or constituent institution, application materials for applicants to become a member of academic staff of that registered higher education provider or constituent institution.
    2. At least once a year, bring this scheme to the attention of the following persons:
       1. In the case of a registered higher education provider or constituent institution: students, members or members of staff of that registered higher education provider or constituent institution (as the case may be).
       2. In the case of a relevant students’ union:
          1. Members or members of staff of the relevant students’ union;
          2. Students of a registered higher education provider to which the relevant students’ union relates; or
          3. Members or members of staff of a registered higher education provider to which the relevant students’ union relates or of any of its constituent institutions.
60. The text that a registered higher education provider, constituent institution and relevant students’ union should include in the documents or information sources referred to in rule 59a above is:

‘The Office for Students (OfS) operates a free speech complaints scheme. Under that scheme, the OfS can review complaints about free speech from members, students, staff, applicants for academic posts and (actual or invited) visiting speakers. Information about the complaints that the OfS can review is available on its website. [LINK – to be supplied]’

Section O: Charges, costs and fees

61. We will not charge any fee to you for reviewing your free speech complaint.
62. Where we have made a decision that a free speech complaint is justified or partly justified, we may, by notice, require the respondent to pay our costs in relation to making the decision up to the date of notification.

Section P: Collecting and sharing data

63. Through the operation of this scheme, we will collect and process personal data. This may include sensitive personal data. The privacy notice published on our website⁶⁵ sets out why and how we will do this.
64. We may share information that we receive under this scheme with other parties. We will do so in accordance with the requirements set out in HERA.

Section Q: Publication of information

65. We would normally expect to publish information about the free speech complaints that we receive, in accordance with our published guidance on publication matters (‘Regulatory advice 21: Publication of information’).⁶⁶
66. The information that we would normally expect to publish in relation to this scheme is set out in Table 1 in ‘Regulatory advice 21: Publication of information’.
67. In publishing information about a free speech complaint, we would not normally expect to publish the name of the complainant. However, it may be possible to infer your identity from the information that we publish.
68. In making publication decisions we will consider the factors set out in ‘Regulatory advice 21: Publication of information’.

Section R: Amendments to the rules

69. These rules may be amended from time to time.

Section S: Law

70. These rules shall be governed by and interpreted according to the law of England and Wales.

Section T: Glossary

Complainant: an eligible person who has made a complaint under these rules

Constituent institution: any constituent college, school, hall or other institution of a registered higher education provider

Eligible person:

1. In relation to a complaint about a governing body of a registered higher education provider, or of a constituent institution, a person referred to in rule 8.
2. In relation to a complaint about a relevant students’ union, a person referred to in rule 9.

Free speech claims: the claims described in rule 2.

Free speech complaint: a complaint made by an eligible person that:

1. Claims that the person making the complaint has suffered adverse consequences (which need not be financial) as a result of action or inaction of a respondent; and
2. Claims that, or gives rise to a question as to whether, the action or inaction was a breach of the respondent’s free speech duty.

A free speech complaint may include claims other than free speech claims (see above).

The free speech duty for governing bodies of registered higher education providers and constituent institutions of such providers is set out in section A1 of Part A1 of HERA (Duty to take steps to secure freedom of speech).

The free speech duty for relevant students’ unions is set out in section A5 of Part A1 of HERA (Duty to take steps to secure freedom of speech).

Governing body of a registered higher education provider: see registered higher education provider.

HERA: the Higher Education and Research Act 2017.

Member:

‘Member’, in relation to a registered higher education provider, may include board members, faculty, staff, students and administrators. A member does not include a person who is a member of the provider solely because of having been a student of the provider.

‘Member’, in relation to a constituent institution of a registered higher education provider, may include board members, faculty, staff, students and administrators. A member does not include a person who is a member of the institution solely because of having been a student of the institution.

‘Member’, in relation to a students’ union which is a representative body and not an association (see section 20(1)(b) of the Education Act 1994), means those whom it is the purpose of the union to represent, excluding any student who has signified that they do not wish to be represented by it.

Member of academic staff: a member of staff who is employed, or otherwise engaged, for the purpose of teaching or conducting research.

Member of staff (of an organisation): an employee of that organisation or other person working for that organisation under a contract of employment, including, without limitation, a fixed-term contract, a zero-hours contract, an hourly-paid contract or other type of casual or atypical contract of employment. 

Notice of Complaint Outcome: a written document setting out the outcome of our review of a free speech complaint.

Professional, Statutory and Regulatory Bodies form a group of professional bodies, bodies with statutory authority over a profession and professional regulators.

Registered higher education provider and governing body in relation to such a provider: have the same meanings as in Part 1 of HERA (see section 85 of that Act). The OfS publishes a Register of registered higher education providers on its website.⁶⁷

Registered higher education provider that is eligible for financial support: a registered higher education provider that is an eligible higher education provider for the purposes of section 39 of HERA. These providers are registered in the OfS’s ‘Approved (fee cap)’ registration category.

Relevant students’ union: a students’ union at a registered higher education provider that is eligible for financial support. This does not include a students’ union for students at a constituent institution of such a provider.

Respondent: a registered higher education provider, constituent institution or relevant students’ union which is the subject of a free speech complaint.

Student: a person undertaking a course of study or a programme of research (i) at the institution in question or (ii) that leads to an award granted by the institution in question, and in either case this may include a trainee or apprentice.

Student complaints scheme: the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).

Students’ union: has the same meaning as it has in Part 2 of the Education Act 1994 in relation to establishments to which that Part applies (see section 20 of that Act).

Visiting speaker: a person who was invited to speak at a registered higher education provider, constituent institution or relevant students’ union. It does not include a person who wanted or requested an invitation to speak but was not invited.

[63] These rules implement the requirements of Schedule 6A to the Higher Education and Research Act 2017 (HERA). They are effective from 1 August 2024.

[64] See the OfS Register.

[65] See our Other privacy notices web page.

[66] See 'Regulatory advice 21: Publication of information'.

[67] See the OfS Register.