Consultation on the OfS’s new free speech complaints scheme

103. The Act includes a requirement for us to decide on the extent to which a free speech complaint is justified.⁴¹ The Act will also require us to notify the parties of our decision and of our reasons for making it.⁴²
104. We propose that we will make a decision about a complaint as soon as reasonably practicable. This reflects a requirement in the Act.⁴³ We will decide whether the complaint is justified, partly justified or not justified.
105. The decision that we reach will depend on our assessment of whether:
     1. The respondent has breached or is breaching the relevant free speech duty; and
     2. The complainant has suffered adverse consequences that are more than minor or trivial as a result of the breach.
106. We propose that if it appears to us that each of 105a and 105b above is more likely than not, then we may decide that the complaint is justified. If it appears to us that 105a is more likely than not, but 105b is not, then we may decide that the complaint is partly justified. Otherwise, we may decide that the free speech complaint is not justified.
107. We are also proposing that when we have made a decision, we will notify the complainant and the respondent in writing of our decision and of our reasons for reaching it. We propose to do so in a Notice of Complaint Outcome.
108. We propose that we will not make a decision about the extent to which a free speech complaint is justified where we have agreed a settlement (see Proposal F). An agreed settlement would result in the withdrawal of a complaint by the complainant. However, we propose that we would issue a Notice of Complaint Outcome to confirm the terms of the settlement of the free speech complaint.
109. We also propose that if a complaint is against more than one respondent then we will determine the complaint separately against each respondent.

[41] HERA Sch. 6A 6(1)(a).

[42] HERA Sch. 6A 8(a).

[43] HERA Sch. 6A 6(1)(b).

110. We are proposing to make decisions on the basis of whether it appears to us that the relevant claims are more likely than not. The relevant claims are the matters referred to in paragraph 105 above. A free speech complaint must include claims about those matters (see Proposal A).
111. We considered two alternatives to this proposal.
112. First, we considered whether to require a higher standard of proof than ‘it appears to us to be more likely than not’, to find the complaint justified or partly justified. For example, we might have required that we be satisfied ‘beyond reasonable doubt’ that the complainant had suffered adverse consequences, and that that was as a result of a relevant breach, before determining that the complaint was justified.
113. Second, we considered whether to require a lower standard of proof than ‘it appears to us to be more likely than not’. For example, we might have required there simply to be a case that on its face indicated that the complainant had suffered adverse consequences because of a relevant breach, to decide that the complaint is justified.
114. We discounted these alternatives. Our findings should justify substantial recommendations. We consider that a lower standard of proof would undermine this aim. Conversely, ‘beyond reasonable doubt’ is the test used in criminal law cases. We are proposing the test that it ‘appears to us’ that the civil standard (‘more likely than not’) is met. The civil standard is the test that courts such as the county court uses when considering civil claims, including the one that will be provided for in section A7 of Part A1 of HERA, as inserted by the Act. The inclusion of the words ‘it appears to us’ reflects the tests that the OfS applies when making other regulatory decisions under HERA. For example, when we are deciding whether to impose a monetary penalty on a relevant students’ union in relation to a breach of a free speech duty under our broader regulatory role. Or when we are deciding whether to impose a sanction on a provider in relation to a breach of a condition of registration.⁴⁴
115. The Act states that we may find a complaint partly justified if, for example, we consider that there has been a breach of its duty to secure free speech within the law that has not resulted in adverse consequences for the complainant.⁴⁵ The Act also provides that, if we find a complaint partly justified, we can make recommendations.⁴⁶ We have proposed provisions to this effect in the scheme rules. We consider that it may be important to identify a breach of the relevant free speech duty, even if it has not caused the complainant to suffer adverse consequences. We also think that it may be important to make recommendations in such a case. Therefore, we are proposing that we may find a complaint partly justified in those circumstances.
116. Under our proposals, we could only find a free speech complaint to be justified if it appears to us more likely than not that the adverse consequences suffered by the complainant are more than minor or trivial. Our current view is that a ‘justified’ decision should be reserved for the more serious cases. This is because we consider it important to be able to distinguish breaches of the relevant free speech duty that have resulted in adverse consequences that are more than minor or trivial. Where we decide that the respondent has breached its duty to secure free speech within the law but the complainant has suffered only minor or trivial adverse consequences, we may find the complaint to be ‘partly justified’. We would still be able to make recommendations in relation to such a complaint.
117. Under our proposals we may find a complaint to be not justified where it appears to us more likely than not that the respondent is not breaching, and has not breached, its duty to secure free speech within the law. This means that we would not go on to make findings about other parts of the complaint. Under Proposal C, we have proposed that we will only consider claims in a complaint that are not ‘free speech claims’ where they are relevant to those free speech claims. The focus of our review is the free speech elements of a complaint. It follows that, should it appear to us that it is more likely than not that the respondent has not breached or is not breaching its duty to secure free speech within the law, we would find the complaint not justified and conclude our review. 

[44] Under HERA 69B(2) (as amended) the OfS may impose a monetary penalty on a relevant students’ union if it appears to the OfS that is failing or has failed to comply with any of its free speech duties. We are consulting separately on our proposed regulation of relevant students’ unions (see the consultation). The OfS may impose a monetary penalty on a provider, or suspend the provider’s registration with the OfS, if it appears to the OfS that there is or has been a breach of one of its ongoing conditions of registration (sections 15 and 16 of HERA respectively).

[45] HERA Sch. 6A 7(2).

[46] HERA Sch. 6A 7(1).