Consultation on the OfS’s new free speech complaints scheme

118. The Act will require the scheme to provide that the OfS may make a recommendation when it considers a free speech complaint to be justified or partly justified.⁴⁷ The Act defines what a recommendation is.⁴⁸ Broadly, this is a recommendation that the respondent does something or refrains from doing something. This may include the payment of sums to the complainant. The Act also states that we may only make recommendations that arise from the free speech claims in the complaint.⁴⁹ Our proposed scheme rules reflect these requirements.
119. Our proposals expect the respondent to comply with any recommendation that we make in full, within the time limits that we set and to report to us when it has done so. Any recommendations would be set out in the Notice of Complaint Outcome. 
120. We also propose that we may make suggestions in any Notice of Complaint Outcome, whether or not we decide that the complaint is justified or partly justified. We may suggest that the respondent considers doing something or not doing something.

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

[48] HERA Sch. 6A 7(3).

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

121. Our proposed rules are designed to be flexible and do not limit the form that recommendations may take, other than that they may only arise from the free speech claims in a complaint (and that latter point will be required by the Act⁵⁰). The form of recommendation will depend on the individual circumstances of the case. Recommendations may be designed to put the complainant in the position they would have been in before the circumstances of their complaint occurred, where that is appropriate or possible. Our recommendations may also relate to broader issues such as a change in the respondent’s processes or practices. For example, we might recommend that the respondent should review its regulations or provide staff training on free speech or related matters.
122. We are proposing that we may make suggestions even where we find a complaint to be not justified. This is because, in such circumstances, there may still be things that the respondent can do to mitigate the risk of future breaches of their duty to secure free speech within the law. For example, it may be helpful for the respondent to improve its processes or review its regulations. However, we are not proposing to publish information about a respondent’s compliance with suggestions. (Whereas we are proposing to publish information about a respondent’s compliance with recommendations: see Proposal P.)

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