Consultation on the OfS’s new free speech complaints scheme

2. The OfS’s general duties are set out in section 2 of the Higher Education and Research Act 2017 (HERA). In performing our functions, we are required to have regard to:
   1. The need to protect the institutional autonomy of English higher education providers;
   2. The need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers;
   3. The need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers;
   4. The need to promote value for money in the provision of higher education by English higher education providers;
   5. The need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers;
   6. The need to use the OfS’s resources in an efficient, effective and economic way, and
   7. So far as relevant, the principles of best regulatory practice, including the principles that regulatory activities should be—
      1. Transparent, accountable, proportionate and consistent, and
      2. Targeted only at cases in which action is needed.
3. We have carefully considered each of our general duties. We consider that the proposals set out in this consultation are particularly relevant to general duties (a), (b), (e), (f) and (g): institutional autonomy; quality, choice and opportunity for students; equality of opportunity; efficient, effective and economic use of the OfS’s resources; and best regulatory practice.
4. In formulating our proposals, we have placed significant weight on our general duty relating to institutional autonomy. HERA currently defines ‘institutional autonomy’ to include ‘the freedom within the law of academic staff at English higher education providers—
   1. To question and test received wisdom, and
   2. To put forward new ideas and controversial or unpopular opinions,

without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.’⁶⁸

In formulating our proposals for a freedom of speech complaints scheme, we have placed significant weight on the need to protect this aspect of institutional autonomy. We consider that our proposals relating to the free speech complaints scheme will create an incentive for providers and constituent institutions to protect the academic freedom of their academic staff. We therefore consider that our proposals will enhance this aspect of institutional autonomy.

5. HERA also defines ‘institutional autonomy’ to include the freedom of English higher education providers to conduct their own management and to determine their own approach to teaching and their own criteria for admissions and appointments.
6. In developing our proposals, we gave weight to this aspect of institutional autonomy. For instance, we have considered where there should be room for a provider, constituent institution or relevant students’ union to address a free speech matter itself. An example of this is the proposed requirement that a complainant should normally have initiated any available and relevant internal review process before raising the matter with us. However, we have balanced the need to protect this aspect of institutional autonomy against the need to protect academic freedom. Therefore, we have proposed that a complainant could bring a complaint to the free speech complaints scheme if 30 days have elapsed since the start of an internal review process. We consider that it is in the interests of academic freedom for academic staff that institutions have an incentive to resolve issues quickly.
7. The OfS must also have regard to the general duty (b): the need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers. We consider that students will not have a high quality education if that education is not grounded in freedom of speech. That includes freedom of speech for themselves, for fellow students, for those who teach or supervise them and for visiting speakers. In formulating our proposals, we have taken the view that freedom of speech and academic freedom provide a necessary context for advancing new ideas, encouraging productive debate and challenging conventional wisdom, and that these are essential characteristics of quality higher education provision. We consider that our proposals advance the aim that all providers and relevant students’ unions secure freedom of speech within the law for students, staff and visiting speakers. We therefore consider that they would promote quality in the provision of higher education.
8. We propose that we would normally expect to publish information about the outcome of free speech complaints that we have considered under the scheme. This may provide students with information that may help to inform their choices about where to study.
9. The OfS must also have regard to the general duty (e): the need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers. Without free speech within the law being secured for all students, they will not have equal opportunity to participate fully in higher education or research. This may be especially important for those who could otherwise suffer harassment, discrimination and victimisation on account of their protected characteristics, including their religious or philosophical beliefs.
10. Our proposals for the free speech complaints scheme may support the lawful expression of views that others may find offensive. Some groups who share protected characteristics may consider that they will be negatively affected by the lawful expression of views that they find offensive. However, our proposed approach to operating the free speech complaints scheme may support those groups to put forward their counter views (within the law), and that may be a positive effect. Moreover, we consider that open, tolerant discussion of controversial matters may be more likely to promote good relations between such groups than censorship or silencing. Censorship or silencing risks concealing tensions without going any way to resolving them.
11. We consider that our proposals for the free speech complaints scheme will help create an environment in which students from all backgrounds can succeed in higher education. We have aimed to minimise barriers to the submission of a free speech complaint. Our intention is to create an impartial and accessible process for considering free speech concerns.
12. The OfS must have regard to the need to use its resources in an efficient, effective and economic way (general duty (f)). In formulating our proposals, we have considered how we will have regard to these factors in running the free speech complaints scheme. For example, we have proposed that we may dismiss ineligible, vexatious, or frivolous complaints. We have also proposed to support settlements on complaints, when doing so is acceptable to both the complainant and the respondent.
13. The OfS is required to have regard so far as relevant, to the principles of best regulatory practice (general duty (g)). These include the principles that regulatory activities should be transparent, accountable, proportionate and consistent, and targeted only at cases in which action is needed.
14. The legislation will require that every eligible free speech complaint is capable of being referred under the scheme. Within this constraint, we are proposing to target our activity by focusing our review on the elements of a complaint that are relevant to its free speech claims. We have also proposed that we may dismiss ineligible, vexatious, or frivolous complaints. We also propose to support settlements on complaints, when doing so is acceptable to both the complainant and the respondent.
15. We are proposing to make the complaints process transparent, accountable and consistent through publication of the scheme rules and by communicating in writing, to complainants and respondents, any decisions made in the review of a free speech complaint and our reasons for those decisions.
16. We propose to publish information relating to outcomes and recommendations of free speech complaints. We consider that doing so is in the interests of transparency and accountability. Published examples of outcomes will support knowledge and understanding associated with the application of the new relevant free speech duties and will provide assurances that the OfS is regulating effectively around freedom of speech.
17. We consider duties (c) and (d), which relate to competition where this is in the interests of students and value for money, to be important. However, in formulating these proposals we have given more weight to our other general duties.
18. The OfS is required to have regard to the need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers.
19. Competition could be encouraged by allowing providers to determine their own stance on the extent to which they promote or secure free speech or academic freedom in general or in relation to specific issues without regulatory intervention. However, this would not reflect the new statutory duties on providers, and the OfS, in relation to free speech. In addition, we do not consider that this form of competition would be in the interests of students. We therefore consider that other general duties, such as the need to promote quality, outweigh this general duty in this instance.
20. The OfS must have regard to the need to promote value for money in the provision of higher education by English higher education providers. We consider that freedom of speech within the law and academic freedom are essential conditions for higher education that is high quality and accessible. It follows that securing free speech is also a pre-requisite of value for money for students.

[68] HERA 2017 2(8)(c). The Act will amend HERA to omit 2(8)(c): see Schedule para 2(4)(c) of the Higher Education (Freedom of Speech) Act 2023. However, the Act will also add two additional general duties to section 2 of HERA, of which one will be ‘(ab) the need to protect the academic freedom of academic staff at English higher education providers’. See section 5(1) of the Act. The Act will also introduce a definition of academic freedom into HERA.

21. We have had regard to the Regulators’ Code⁶⁹ in developing these proposals.
22. Provision 1 of the Code states that regulators should carry out their activities in a way that supports those they regulate to comply and grow. We have framed our proposals in a way that will help providers, constituent institutions and relevant students’ unions to comply. For instance, we are proposing that we would normally expect to publish the outcome of a free speech complaint and the reasons for our decision. We consider that publication may help providers and students’ unions to comply in the future.
23. Provision 2 of the Code states that regulators should provide simple and straightforward ways to engage with those they regulate and hear their views. We have sought to explain both our proposals and our policy intention in making them throughout this consultation document. Where relevant, we have also explained the alternatives we have considered and discounted, to enable respondents to tell us if they consider we should not have discounted a particular option. We will promote and run several consultation events during the consultation period to engage with potential participants.
24. Provision 3 of the Code states that regulators should base their regulatory activities on risk. Our proposed approach to the free speech complaints scheme focuses on claims of breach of a duty to secure free speech within the law and consequent adverse consequences. We consider that it targets activity at areas of greatest regulatory risk in this area.
25. Provision 4 of the Code states that regulators should share information about compliance and risk. We are proposing to publish information about the outcome of free speech complaints. We consider that these proposals will inform providers, constituent institutions and relevant students unions about relevant risks to free speech and academic freedom.
26. Provision 5 of the Code states that regulators should ensure that clear information, guidance and advice is available to help those we regulate meet their responsibilities to comply. We have set out clearly in the proposed scheme rules how we will engage with respondents and the processes involved in the review of complaints. We are also proposing to publish information relating to the outcome of free speech complaints, including reasons for, and the evidence underlying, our assessments. We consider that this information will help providers, constituent institutions and relevant students’ unions to meet their duties to comply.
27. Provision 6 of the Code states that regulators should ensure that their approach to their regulatory activities is transparent. We are proposing to make the complaints process transparent through publication of the scheme rules and by communicating in writing, to complainants and respondents, any decisions made following our review of a free speech complaint and our reasons for those decisions.

[69] See the 'Regulators' Code'.

28. We have had regard to the Public Sector Equality Duty set out in section 149 of the Equality Act 2010. This duty states that the OfS ‘must, in the exercise of its functions, have due regard to the need to:
    1. Eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited under the Equality Act 2010.
    2. Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
    3. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
29. Our proposals are intended to ensure that individuals in English higher education both feel free and are in fact free to express their views within the law. We are not consulting on whether we should implement a free speech complaint scheme. We will be required to do this under the Act. Rather, we are consulting on how we should do this.
30. Under existing legal and regulatory requirements, providers must comply with any relevant free speech duties and equality law duties, including the public sector equality duty where it applies. The matters on which we are consulting do not change this requirement. The proposed complaints scheme may support the lawful expression of views that others may find offensive. Some groups who share protected characteristics may consider that they will be negatively affected by the lawful expression of views that they find offensive.
31. However, the proposed complaints scheme may support those groups to put forward their counter views (within the law), and that may be a positive effect. Moreover, we consider that open, tolerant discussion of controversial matters may be more likely to promote good relations between such groups than censorship or silencing. Censorship or silencing risks concealing tensions without going any way to resolving them.
32. Moreover, one of the relevant protected characteristics is ‘religion or philosophical belief’. The proposed complaints scheme may offer a route for addressing, and may also disincentivise, unlawful discrimination, harassment and victimisation directed at persons who share this characteristic. This may be a positive effect.
33. This consultation gives stakeholders an opportunity to inform the development of our proposals. Through this consultation we are seeking views on any unintended consequences of our proposals, for example on particular types of provider or student. We are also seeking views about the potential impact of our proposals on individuals on the basis of their protected characteristics. Responses to this consultation will inform our assessment of the impact of our proposals on different groups.

34. We have a duty to have regard to statutory guidance issued by the Secretary of State under section 2(3) of HERA. Guidance issued in March 2022⁷⁰ set out the government’s view that it is essential for the higher education sector to uphold freedom of speech and for the OfS to regulate around freedom of speech and academic freedom: ‘Freedom of speech and academic freedom are fundamental principles which underpin our HE sector. Without action to counter attempts to discourage or even silence unpopular views, intellectual life on campus for both staff and students may be unfairly narrowed and diminished.’
35. We consider that freedom of speech and academic freedom are fundamental and that steps should be taken to secure free speech in higher education. Our proposals are designed to ensure that our implementation of the requirements of the Act, including operating our free speech complaints scheme, is effective in upholding those fundamental principles.
36. The guidance recognised that the work of the OfS creates regulatory burden for the sector and stated that the OfS should work to ensure that this burden is proportionate to our regulatory requirements. The legislation will require us to operate a free speech complaints scheme. In formulating our proposals, we have made efforts to minimise unnecessary regulatory burden. For instance, we have proposed to focus our review on the elements of a complaint that are relevant to its free speech claims.

[70] See 'Guidance to the Office for Students on strategic priorities for FY22-23'.