Consultation on the OfS’s new free speech complaints scheme

46. The Act sets out who can make a free speech complaint about a provider, a constituent institution or a relevant students’ union.²⁶ These requirements are reflected in section B of our proposed scheme rules.
47. The eligibility requirements are slightly different depending on which category of organisation (a provider, constituent institution, or relevant students’ union) the complainant is complaining about. Broadly, anyone who is or was a member, member of staff, student or visiting speaker (actual or invited) at the organisation they are complaining about can make a free speech complaint. Anyone who has applied to become a member of academic staff at a provider or constituent institution can also make a free speech complaint.
48. Under our proposals, a legal person (such as a corporation) may be eligible if they fall into one of those categories.
49. Section T of the proposed scheme rules explains each of the terms: constituent institution, member, member of academic staff, member of staff, registered higher education provider, relevant students’ union, student, visiting speaker.
50. We are also proposing that 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 they died.

[26] HERA Sch. 6A 2(2) and Sch. 6A 3(2).

51. The categories of ‘eligible person’, set out in section B of the proposed scheme rules, reflect the requirements set out in the Act. Where terms are defined in the Act, the proposed scheme rules incorporate those definitions in section T.
52. The Act does not preclude a legal person (such as a corporation) from being eligible and so our proposed rules do not do so either. For example, a legal person could be a ‘visiting speaker’ and as such could suffer adverse consequences as a result of a breach of the relevant free speech duty by a provider.
53. We have proposed definitions of ‘member’, ‘member of academic staff’ and ‘member of staff’. Those terms are not defined in the Act. The Act does not suggest any limitation and our proposed definitions are broad. In our view, any person in these categories could suffer adverse consequences because an organisation has breached its duty to secure free speech within the law. Therefore, we consider that any such person should be able to make a free speech complaint.
54. Our proposed definition of ‘student’ is not limited to higher education students. This is because the Act does not include any such limitation. Some providers may have students aged 11 to 16 (Key stage 3 and 4), or 16 to 18 years (Key stage 5), or adults enrolled on further education or community learning programmes.
55. In our view, any student engaged in study or research could suffer adverse consequences because their institution has breached its duty to secure free speech within the law. Therefore, we consider that any such person should be able to make a free speech complaint.
56. We have also defined ‘student’ to include a student who is studying or undertaking research at a provider or is studying or undertaking research elsewhere for an award of that provider. Students studying at one provider for an award of another provider could suffer adverse consequences should that awarding provider breach its duty to secure free speech within the law.
57. We have proposed a broad definition of ‘visiting speaker’. We consider that a narrower definition would risk excluding those who should legitimately be considered visiting speakers. We considered a definition that would restrict ‘visiting speakers’ to those who had been approved under the organisation’s approvals process. However, a refusal to approve an invitation may itself give rise to questions about whether there has been a breach of a duty to secure free speech within the law. We therefore discounted this option.
58. However, our proposed definition of ‘visiting speaker’ does not include those who would like to speak at an organisation, but who have not been invited.
59. We propose that we will not consider complaints from someone who has died unless we received their complaint before they died. We consider that it is important for a complaint to be ‘owned’ by a complainant and to set out the complainant’s own views. We recognise that families and personal representatives of a person who has died may wish to raise concerns, including about the circumstances surrounding that person’s death. We consider that the free speech complaints scheme is not the appropriate mechanism through which to raise those concerns. Where the person was a student, the OfS may have a broader regulatory interest in the circumstances of the case. Concerns could then be more appropriately raised through our notifications process.²⁷

[27] See the notifications section of our website.