Higher Education free speech complaints scheme

As we look back on a significant and tumultuous year in the higher education sector, it will be remembered that the Higher Education (Freedom of Speech) Act 2023 finally received Royal Assent on 11 May 2023 after completing a two-year journey through Parliament.

As the year draws to a close, the regulator for English higher education providers – the Office for Students – has published two consultations today (14 December 2023) in respect of its incoming new obligations under the new legislation a) to operate a free speech complaints scheme relating to registered English higher education providers, their constituent institutions and students’ unions, and b) to regulate certain students’ unions on free speech matters: Consultations on free speech - Office for Students

These are lengthy documents: 68 pages for the free speech complaints scheme and 57 pages for the regulation of students’ unions.

The consultations run until 10 March 2024 and 17 March 2024 respectively.

The OfS states that it is expected that the new free speech complaints scheme will operate from 1 August 2024 (and that it will not apply retrospectively). Likewise, it is expected that the OfS will monitor and regulate how students’ unions comply with their new free speech duties from 1 August 2024.

The consultation on the free speech complaints scheme notes that the provisions relating to new conditions of registration and the monitoring of overseas funding are expected to come into force just over a year later on 1 September 2025.

The consultation on the free speech complaints scheme contains 16 proposals (A) – (P) and also the text of the proposed “rules of the free speech complaints scheme”.

All those involved in the higher education sector in England interested in this area will no doubt review the details and respond to the consultations accordingly.

One of the features of the proposed new free speech complaints scheme (Proposal D) relates to time periods for raising a complaint against a “respondent”, namely a registered higher education institution, a constituent institution or a students’ union. A long stop of 12 months is proposed from the date of the last occurrence of the alleged ‘adverse consequences’ arising from the respondent’s action or inaction. In order to incentivise prompt resolution by a respondent, the OfS is proposing that an eligible person can normally make a complaint once any internal process for considering the complaint has concluded, or 30 days after the process has begun (whichever is the sooner).

An interesting feature (Proposal J) relates to group complaints which are to be allowed where they are against the same respondent and relate to the same subject matter. It is also proposed that a representative / lead complaint may be allowed to go forward by the OfS and that other complaints may be suspended pending the outcome of that complaint.

The OfS sets out its proposals (Proposal P) on what information relating to free speech complaints will normally be published and gives details of its proposed amended Regulatory Advice 21 on publication of regulatory information. For reasons of transparency and the public interest, the OfS proposes that decisions on complaints under the free speech complaints scheme will normally be published but that the names of individual complainants will not normally be published.

The new year looks set to be an active one as the provisions under the Higher Education (Freedom of Speech) Act 2023 start to come into force.

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