OfS won’t charge for free speech complaints against universities

But institutions may face paying regulator’s costs under new proposals outlined by England’s new free speech champion

December 14, 2023
Source: iStock

Aggrieved parties will be able to bring cases to the Office for Students’ new free speech complaints scheme without having to pay, with universities falling foul of their duties told to expect to be named publicly.

More details about the long-awaited plan were outlined by England’s higher education regulator as it launched a consultation on its proposals.

But the OfS’ new director for freedom of speech and academic freedom, Arif Ahmed, declined to be drawn on the free speech issues affecting universities currently, stating he did not want to prejudice cases that he may have to adjudicate on from 1 August 2024, when the new duties outlined in the Higher Education (Freedom of Speech) act come into effect.

The OfS’ scheme will allow students, staff and visiting speakers to make a complaint to the regulator if they feel a university or students’ union has “failed to secure freedom of speech for them and they think that has caused them to suffer loss”, Professor Ahmed told reporters. Where complaints are found to be justified, universities could face fines or other sanctions. 

“We will approach this in a completely impartial and neutral way,” he said. “We don’t mind what views people have on contentious topics or any other topics. We are not interested in any culture wars, promoting any particular side of any particular dispute.

“I can’t emphasise that strongly enough. All we are concerned with is the protection of legal speech. If you express a view that is within the law, then it falls within the scope of our protections. If it is not, then it doesn’t.”

Complainants will be expected to first raise any issues with the institution in question before pursuing a case with the OfS. They will have a year in which to make a complaint and the scheme will not retrospectively look at cases that occurred before August 2024, according to documents published as part of the consultation.

Under the proposed rules, “we will not charge any fee to the complainant for reviewing their free speech complaint”, the document says, but “we may recover costs from respondents in relation to our review of a complaint where we find that complaint justified or partly justified”.

Professor Ahmed declined to put a timeline on how quickly complaints will be dealt with because “they will vary in complexity” but said the regulator was required by law to reach decisions as soon as reasonably practical.

The outcome of complaints – whether they are found to be justified or not – will be published alongside the OfS’ reasoning on why it reached a particular decision.

Decisions on whether to publish the fact that a complaint has been made at all will be reviewed on a case-by-case basis, Professor Ahmed said. A complainant’s name will not normally be published.

The former University of Cambridge philosophy professor said he would not comment on individual cases, either real or hypothetical, as he faced a series of questions regarding universities’ approach to the current conflict in Israel and Palestine, which has raised several free speech and academic freedom concerns in the UK and around the world.

Asked if students calling for an “global intifada” would be protected by the scheme, Professor Ahmed said he would not get into individual cases but “speech that incites violence, speech that amounts to illegal harassment, speech that stirs up racial hatred will not be protected under any circumstances”.

He said he would be “reluctant to say any particular phrase is always going to be acceptable and always not because with many of these things it is going to depend on a variety of factors. I am definitely not going to say you can always say something or you can never say something for that reason. Also because we may have to adjudicate on cases like that.”

“The place where the line is drawn is always going to be between what the law permits and what the law doesn’t permit,” he added.


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Reader's comments (1)

Well, that is only slightly frightening... “The place where the line is drawn is always going to be between what the law permits and what the law doesn’t permit,”. After all, we are about to have a parliament remove the right of people to appeal to the law, and argue that what the law says is not actually the case if parliament says otherwise. Oh yes, free speech, uh uh....