Consultation on the OfS’s new free speech complaints scheme

89. We propose that when we first receive a complaint, we will consider whether it is one that is eligible for review under the scheme. This means that we would consider whether:
    1. The complaint is a free speech complaint (section A of the rules and Proposal A).
    2. The complainant is an eligible person (section B of the rules and Proposal B).
    3. The free speech complaint is about an organisation that can be complained about under the scheme (section A of the rules and Proposal A).
    4. We cannot review some or all of the free speech complaint under section C of the scheme rules (see Proposal C – Complaints we will not review) or section D of those rules (see Proposal D – Time limits).
90. We propose that we may share information with the respondent or with others to help us to determine matters of eligibility. We will tell the complainant, and the respondent if relevant, whether and to what extent we are able to review their free speech complaint.
91. Our proposals give us discretion to determine what activities to undertake to conduct a review. We propose to consider the complaint form and any supporting information that the complainant submits with that form. We may ask the complainant and/or the respondent specific questions or request additional information from them. We may share some or all of the information that the complainant sends to us with the respondent and may seek their representations on that information.
92. Where we consider it appropriate, we may decide to have one or more face-to-face meetings with the complainant and/or the respondent and/or other persons that we consider may have information or expertise that is relevant to the free speech complaint. We may ask the complainant, the respondent, or those other persons, questions at such a meeting. We may allow the complainant, the respondent and/or those other persons to ask each other questions at such a meeting.
93. We propose that, where we consider that a free speech complaint concerns academic judgement, we may seek expert academic judgement to inform our review. We propose that we will do this only if we consider it appropriate. We also propose that we may seek expert advice from persons with other forms of expertise, where we consider it appropriate.
94. We are also proposing that we may seek a settlement of the free speech complaint without conducting a full review. This would require the agreement of the complainant and the respondent and would result in the withdrawal of the complaint by the complainant.
95. We propose that we may decide to dismiss a complaint, during our review, if we decide that the complaint is not one that we can consider after all (that is, that the eligibility requirements referred to in paragraph 89 above are not in fact met). We may do this where, for example, new information comes to light during our review.

96. Our proposals are designed to ensure that we appropriately identify complaints that are eligible for review under the scheme. We have explained in Proposals A to D why we have proposed the eligibility requirements as they are. When we receive a free speech complaint, we propose to make an initial decision about the extent to which we can review it. However, we have also proposed flexibility to enable us to dismiss some or all of a complaint during the review process, where, for example, information comes to light that leads us to conclude that the complaint is not one that we can review under the rules after all.
97. Our proposals are also designed to ensure that our review process is flexible, and that we can undertake activities that will best enable us to reach a decision about a free speech complaint. Our proposals are designed to ensure that we can drive the review process, obtaining the information that we think will help us to determine the extent to which the free speech complaint is justified (see Proposal G).
98. We propose that our starting point would usually be to conduct a paper-based review. However, we have proposed a flexible process under which we are able to hold face-to-face meetings and permit the parties to a complaint to ask each other questions. The aim of those activities is to help us to gather information that will inform our decision about a complaint. We recognise that meetings may be stressful for the participants and may cause delay to our review process. We will only hold them where we consider it to be appropriate. We expect that in most cases, such meetings will not be required.
99. We considered whether we should restrict our review to a consideration of the information that the complainant submits in, and with, their complaint form. That approach would put the onus on the complainant to provide all relevant information at the outset and may support a timely review of free speech complaints.
100. However, we have decided not to propose that approach. We recognise that a free speech complaint may concern complex issues. It is likely that we would need to ask questions or seek further information to enable us to understand and reach a decision about the complaint. Our review will include consideration of whether the respondent has breached its free speech duty to take reasonably practicable steps to secure free speech within the law.³⁹ This may include breaches that the complainant has not explicitly raised. A free speech claim, as defined in the Act, may ‘raise the question’ whether there has been a breach of the relevant duty, and this may include breaches that the complainant does not explicitly allege. It is important that we have all the relevant information to enable us to conclude these lines of enquiry. We consider that to be in the interests of the complainant, the respondent and wider stakeholders.
101. We considered whether we should exclude complaints to the extent that they concern academic judgement. However, the Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement.⁴⁰ Under our proposals, we will seek expert academic judgment to inform our review where we consider that appropriate. We have not proposed that we would seek expert academic advice in every case. This is because we consider that such expert advice may not be required in every case.
102. Our proposals include an option for us to seek settlement of a complaint. We have proposed this because we consider that a settlement may be an effective and timely way in which to resolve free speech complaints in some cases. In seeking to achieve a settlement, we may want to discuss the complaint with the parties or suggest that they discuss the complaint. Any settlement would require the agreement of both parties. We propose to document a settlement in a Notice of Complaint Outcome (see Proposal G).

[39] As stated in HERA Part A1 section A1 or Part A1 section A5.

[40] HERA Sch. 6A 5(1).