Consultation on the OfS’s new free speech complaints scheme

Relevant legislation

149. Under section 67A of HERA, we have a statutory power to publish notices, decisions and reports in the performance of our functions; this includes publishing decisions to conduct or terminate an investigation.
150. The Act will amend section 67B (Publication of decision to conduct or terminate investigation) of HERA to include a new subsection 3A:

151. The effect of new sub-section 67B(3A) is to extend section 67B (publication of decision to conduct or terminate investigations), to apply to a review of a free speech complaint under the new OfS free speech complaints scheme.
152. Schedule 6A of HERA, which is inserted by the Act, will also state, at paragraph 13:

153. References in paragraph 13 of Schedule 6A to the ‘scheme’ are to the new OfS free speech complaints scheme. References to ‘any report under paragraph 12(1)(b)’ are to any results of a review of the OfS free speech complaints scheme or its operation (or any aspect of either of those matters), reported to the Secretary of State under paragraph 12 of Schedule 6A to HERA.
154. We expect these provisions to come into force on 1 August 2024.

Our proposals

155. We have previously published guidance for providers on the approach we will take to the publication of information about providers and connected individuals. This guidance is set out in ‘Regulatory advice 21: Publication of information’.⁵⁹ This guidance was published following consultations on our proposed approach.
156. The guidance sets out how we normally use our powers in sections 67A to 67C of HERA and contains our general policy for the publication of information about providers and individuals connected with them. It sets out the information we would normally expect to publish and the information that we would not normally expect to publish. It also sets out the factors to which we will have regard in making a publication decision.
157. We are now proposing to amend Regulatory advice 21 to set out the information that we would normally expect to publish, and the information that we would not normally expect to publish, in relation to the OfS free speech complaints scheme.⁶⁰

Information we would normally expect to publish

158. We propose that items 15 and 16 in the table below are added to ‘Table 1: Information the OfS would normally expect to publish’, in Regulatory advice 21. We also propose to amend existing items 4 and 8 in Table 1. Our proposed amendments are set out in red font in the table below.

159. We propose that we would make decisions about the publication of information relating to a decision to conduct a review of a free speech complaint, on a case-by-case basis.

Information we would not normally expect to publish

160. We propose that we would not normally expect to publish the name of a complainant under the OfS free speech complaints scheme, unless we make an exception based on our consideration of relevant factors. We propose to amend Regulatory advice 21 to reflect this.

Factors to which we will have regard in making publication decisions

161. In making publication decisions about the matters related to the free speech complaints scheme, we propose to consider the ‘Factors to which we will have regard in making publication decisions’ in Regulatory advice 21. In doing so, and where the context of the publication decision so requires, we propose to interpret the factors in Regulatory advice 21, as follows:
     1. To refer to constituent institutions or relevant students’ unions.
     2. References to ‘regulate’, ‘regulation’ and ‘monitoring and investigatory activity’ include the OfS’s functions under the OfS complaints free speech complaints scheme.
     3. References to persons coming forward to provide information, includes the submission of complaints to the OfS free speech complaints scheme.

Engagement with providers, constituent institutions, relevant students’ unions and connected individuals

162. We propose that the nature of our engagement with a provider, constituent institution or relevant students’ union in relation to a publication decision on the matters referred to in this Proposal P, will depend on the particular circumstances of the case. We propose that we will seek representations from a provider, constituent institution or relevant students’ union before making a final decision to publish information where we consider it is appropriate to do so and in the manner we consider appropriate. This reflects the existing approach set out in paragraph 15 of Regulatory advice 21.

Other consequential amendments

163. We propose to make further minor, consequential amendments to Regulatory advice 21, to reflect the fact that publication decisions may relate to information about the OfS free speech complaints scheme.

[59] See ‘Regulatory advice 21: Publication of information’.

[60] We are consulting separately on proposals relating to our regulation of students’ unions on free speech matters. That consultation includes proposals on the publication of information on relevant students’ unions.

164. The law gives the OfS powers to publish notices, decisions and reports given or made in the performance of our functions.⁶¹
165. Regulatory advice 21 sets out the framework within which we currently make decisions about publication matters. Our policy states that, when making a publication decision, we will have regard to the factors set out in that policy and will consider them in the manner we consider to be appropriate for an individual case. The factors directly incorporate the language used in section 67A of HERA. They also include a final factor, which reflects the other legal requirements placed on us by HERA and other legislation. This includes the requirement for us to have regard to our general duties under section 2 of HERA. Our policy also makes clear that we may have regard to other relevant factors in making publication decisions, and those will depend on the particular circumstances of a case.
166. We explained our reasons for adopting the policy set out in Regulatory advice 21, in our analysis of responses to our public consultation on the policy.⁶² Those reasons also underpin our proposal to extend the general policy to matters referred to in this proposal. The inclusion of decision-making factors, and the illustrative considerations for and against publication that sit underneath them, give us a level of flexibility that we consider appropriate. We consider that it would be inappropriate to introduce a rigid approach to publication since each case should be determined on its own particular circumstances. We recognise that this may make our decision-making process more complex and reduce the certainty that providers, constituent institutions and relevant students’ unions have about whether information relevant to them will be published. However, we consider that a more rigid or rules-based system would fetter our discretion and be inconsistent with our public law obligations.
167. We considered whether it is necessary to make changes to our published policy on publication of information and whether we should instead make publication decisions on the matters referred to in this proposal, on an individual basis without reference to a policy. While we consider that that would be reasonable, we also consider that there are benefits to increased transparency about the types of information that we are likely to publish or not to publish, and the factors that we will take into account in reaching individual decisions. Our proposals set out how we propose to interpret those factors, to refer to constituent institutions, relevant students’ unions and the free speech complaints scheme where the context of the publication decision so requires.
168. In our proposals, we have set out matters that we propose ‘we will normally publish’. We considered whether our starting point should be that ‘we would not normally’ publish those matters. However, we consider that it is in the public interest for the OfS to be transparent about its regulatory and other decisions and its reasons for making them. This includes decisions made under the proposed free speech complaints scheme. In our view, visibility creates confidence in the regulatory system. We consider this to be in the interests of the public, of current and potential students, and of other providers, constituent institutions and relevant students’ unions that have complied with the duty to take reasonably practicable steps to secure free speech within the law. Identifying areas where bodies have not complied with this duty, may also support compliance with those duties by others.
169. We considered whether to propose that we ‘would normally’ publish the name of a complainant. However, our current view is that the public interest in publishing a complainant’s name is likely to be outweighed by other factors. We recognise that the nature of the information that we propose to publish about a complaint may reveal the identity of a complainant, even if they are not explicitly named. In making decisions about publication in individual cases, we propose to take into account the factors set out in our published policy. We propose to interpret those factors to refer to the proposed complaints scheme where the context so requires.
170. Under our proposals, we propose that we will not include ‘information relating to a decision to conduct a review of a free speech complaint’ in the list of information that we would normally expect to publish or in the list of information that we would not normally expect to publish. We have proposed this because we consider that the factors in favour of, or against, publication may be particularly finely balanced. This means that we would have regard to the factors in the general policy, in determining whether to publish this information on a case-by-case basis. We propose to interpret those factors to refer to the proposed complaints scheme where the context so requires.

[61] HERA 67A.

[62] See Consultation on publication of information about higher education providers: Analysis of responses and decision.