Consultation on the OfS’s new free speech complaints scheme

60. The Act states that a free speech complaint may contain claims that are not free speech claims.²⁸ We are proposing only to review those other claims if they include information that is relevant to the free speech claims.
61. We also propose that:
    1. We will only consider free speech complaints that we receive on or after 1 August 2024, when the free speech complaints scheme comes into effect.
    2. We will not review a free speech complaint in relation to matters or events before 1 August 2024 (when the free speech complaints scheme comes into effect). Where those matters or events were ongoing as of 1 August 2024, we propose to review them in relation to the period from 1 August 2024.
    3. We will not review a free speech complaint about a respondent if it was not a provider, a constituent institution or a relevant students’ union when the action or inaction being complained about took place.
62. We propose that we will not review a free speech complaint if it appears to us that proceedings relating to its free speech claims, to which the complainant is or was a party, are being, or have been, dealt with by a court or tribunal. The Act provides for the inclusion of such a provision in the scheme rules.²⁹ We have explained the details of our proposals, and our reasons for making them, in more detail in the ‘Why are we proposing this?’ section below.
63. Similarly, we propose that we will not review a free speech complaint if it appears to us that a complaint brought by the complainant, and relating to the same subject matter as the free speech claims in the free speech complaint, is being, or has been, dealt with under the student complaints scheme.³⁰ The Act permits the inclusion of such a provision in the scheme rules.³¹
64. Some respondents will have an internal process, such as a complaints or appeals process, under which the free speech claims in a complaint could be considered. If they do, we propose that we will normally only review a free speech complaint if the complainant has completed that process or, if earlier, once 30 days have elapsed since that process began.
65. The Act permits the OfS to dismiss free speech complaints, without considering their merits, where they are frivolous or vexatious.³² We have proposed a rule in the scheme rules that will allow us to do this. That rule also sets out a non-exhaustive list of examples of where we may determine that a complaint is frivolous or vexatious.

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

[29] HERA Sch. 6A 5(2)(c).

[30] The student complaints scheme is currently operated by the Office of the Independent Adjudicator. See the OIA website.

[31] HERA Sch. 6A 5(2)(d).

[32] HERA Sch. 6A 6(2).

66. The Act states that the proposed scheme is for the review of free speech complaints. We discuss that issue in Proposal A.
67. The Act also states that a free speech complaint may contain claims that are not free speech claims.³³ We are proposing only to review those other claims if they include information that is relevant to the free speech claims. For example, claims that contain contextual information that helps us to understand the free speech claims. We are proposing this because we will not be able to make recommendations arising from claims that are not free speech claims.³⁴ Therefore, we think we should focus our review on free speech claims. We consider that reviewing aspects of a complaint that are related to the free speech claims is appropriate and will target our activity at cases where we may be able to recommend a resolution.
68. Similarly, the Act sets out the categories of organisation about which free speech complaints may be made. We discuss that issue in Proposal A. We consider it to be in keeping with those provisions for us to limit our review to complaints about organisations that were providers or constituent institutions or relevant students’ unions at the time that the action or inaction being complained about took place.
69. The Act is not expressed to have retrospective effect. The provisions to enact the new scheme, and relevant free speech duties to which the free speech scheme relates, are expected to take effect on 1 August 2024. In our view, it is appropriate for us to limit our review to complaints about matters that occurred on or after that date. To do otherwise would introduce an element of retrospectivity into the new relevant free speech duties, and result in us considering the activities of respondents against relevant free speech duties that were not in force at the time those activities took place.
70. Under our proposals, where a free speech complaint relates to events or matters that were ongoing as of 1 August 2024, we would be able to review them in relation to the period from 1 August 2024. We consider this to be appropriate so as not to introduce retrospectivity.
71. We propose that we will not review free speech complaints if it appears to us that the complainant has already raised the matter under the student complaints scheme or they have already been involved in court or tribunal proceedings over the matter. The Act also permits the inclusion of such provisions in the scheme.³⁵ We consider that this approach will target our regulatory activity where action is most likely to be needed.
72. In deciding whether a free speech complaint is about a subject-matter that is being or has been considered by one of those other bodies, we propose to focus on the free speech claims in the complaint. We have proposed this because our review of a free speech complaint, including any recommendations that we may make (see Proposal H), would focus on those claims. We consider that it would not be appropriate for us to exclude a complaint because extraneous elements of that complaint, that would not be the focus of our review, had been considered by another body.
73. Our proposed understanding of ‘court or tribunal’ does not include an internal panel constituted by a respondent under its internal processes, such as a panel convened to hear disciplinary proceedings. Those internal processes are the subject of a separate rule, considered below. Nor does it include a panel established by a Professional, Statutory and Regulatory Body (PSRB), where this is not at the complainant’s request. Where such panels are requested by the respondent or others, this should not preclude the complainant from bringing a complaint to the OfS.
74. We propose to consider court or tribunal proceedings to have begun when the claim or application is submitted, including where that claim or application seeks permission to bring proceedings. However, we propose to retain discretion to consider complaints where permission to bring proceedings has been refused or where proceedings have been formally paused. We have proposed this because, for example, a complainant may be refused permission to take a claim to court for reasons which are unrelated to the merits of their claim. Similarly, we consider that a complainant who has started a court process should have an option to pause that process and pursue their matter through our scheme instead.
75. Under the Act, our scheme may include a provision which requires a complainant to have first ‘exhausted any internal procedure for the review of complaints’ which is provided by the respondent.³⁶ We are proposing to include a provision on this matter in the scheme. This is because we consider that the respondent should have an opportunity to put matters right before the complainant complains to the OfS. A respondent should then make every effort to resolve matters quickly, not least because a free speech complaint concerns a statutory free speech duty of the respondent. Therefore, we propose that we will normally only review a free speech complaint if the complainant has completed any internal process of the respondent under which their free speech claims could have been considered or, if earlier, once 30 days have elapsed since those proceedings began.
76. We have proposed the 30-day rule because we wish to create incentives for a respondent to deal with a matter quickly. We considered the alternative of requiring a complainant to have completed any internal process. However, we consider that would not create sufficient incentives for a respondent to deal with a free speech matter quickly. We are also proposing to retain discretion to allow us to review a complaint before the 30-day period has elapsed (the proposed rule is framed as ‘We will normally….’). We may consider doing this where, for example, the matters being complained about are time-sensitive and any recommendation that we make (see Proposal H) would be unlikely to be effective should there be further delay.
77. Our proposed rule refers to ‘a disciplinary, complaints, appeals, grievance or similar internal review process’. We have proposed this broad definition because the issues that are being complained about could take many forms and may, for example, form the basis of an academic appeal or staff grievance. A complainant may be the subject of a disciplinary process that relates to issues around free speech. In that case, we consider that the respondent should be given an opportunity to conduct its internal process, but not to delay that process unnecessarily. The 30-day rule that we propose, and have discussed above, would help to mitigate that risk of delay. Delay may constitute punishment in itself.
78. The Act allows us to dismiss a free speech complaint, without considering its merits, if the OfS considers it to be frivolous or vexatious.³⁷ We have included a rule to this effect, because we consider that it will help us to make effective use of our resources to focus on more significant complaints (see section C). Our proposed rule does not set out an exhaustive definition of what is frivolous or vexatious. This is because we consider that an exhaustive definition may result in unintended consequences, such as inadvertently excluding complaints that should reasonably be considered under the scheme. What is frivolous or vexatious may depend on the individual circumstances of the case. We have included a non-exhaustive list of examples to illustrate how we may apply the rule. We consider that our proposal will allow us to take a broad and flexible approach.

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

[34] HERA Sch. 6A 7(4).

[35] HERA Sch. 6A 5(2)(c).

[36] HERA Sch. 6A 5(2)(b).

[37] HERA Sch. 6A 6(2).