Free speech in HE, part 3: Whose judgement will be right, the Office for Students, or the Office of the Independent Adjudicator?

• This blog was authored by Rose Stephenson, Director of Policy and Advocacy at HEPI.
• This is the third part of a blog series discussing the topic of free speech in higher education. You can read the first part here and the second part here.

This blog is part of a short blog series on freedom of speech, and practical implications for universities.

Part One discussed the ‘objective harassment’ test, and why it is difficult to objectively consider such a subjective issue.

Part Two discussed the difficulties universities face in judging whether a proposed speech is lawful.

The third and final issue focuses on the interactivity of two ‘alternative dispute resolution bodies’. Those are: The Office of the Independent Adjudicator for Higher Education (OIA) and the Office for Students (OfS).

The OIA is an independent body set up to review student complaints about higher education providers in England and Wales. The OIA has been the designated operator of the student complaints scheme since 2005. It is an Ombuds Scheme – so just like you can raise an issue with Ofcom if you are not happy with the service provided by your mobile phone provider, you can raise an issue with the OIA if you aren’t happy with the service provided by your higher education provider.

Broadly the OIA sets out that:

• Registered students of members of the OIA scheme can take a complaint to the OIA.
• This complaint can be about academic appeals, bullying or harassment, disciplinary matters, and fitness to practise processes, among other issues.
• Students can normally only go to the OIA once they have exhausted the provider’s internal procedures.
• The OIA will review the student’s complaint to consider whether their provider properly applied its procedures, whether these procedures were reasonable and whether that provider’s decision was reasonable.
• The OIA will not normally investigate matters afresh.
• The OIA will decide if the complaint is not justified, partly justified, or justified.
• If the complaint is partly justified or justified the OIA will make recommendations on how the provider can put things right. Recommendations may include an apology, re-marking work, a financial remedy or reimbursement of fees.

The Higher Education (Freedom of Speech) Act 2023 sets out some details about the upcoming OfS Freedom of Speech scheme. This includes that:

• The scheme is open to any student, a member or member of staff of a student’s union or the provider, or a person who was, or was at any time invited to be, a speaker.  
• The individuals may be able to make a free speech complaint to the OfS if they have suffered adverse consequences as a result of action or inaction of the institution.
• The complaint can be referred under the scheme if the complainant has exhausted the provider/union’s internal procedures.
• The OfS must decide whether the complaint is not justified, partly justified or justified.
• The OfS may make a recommendation to the institution’s governing body or the student’s union about the complaint.

Let us consider the following situation:

A debate is taking place in a seminar. Two students are having a robust and heated discussion. Student A makes statements about people with a particular protected characteristic that clearly offend Student B and Student B becomes visibly upset. The lecturer states that Student A’s comments are unacceptable and calls an end to the debate.

The following then happens:

• Student B makes an allegation of harassment against Student A.

• The student misconduct panel finds that Student A was not in breach of student conduct regulations.

• Student B appeals this within the university and the appeal is not upheld.

• Student B would have the option to take their complaint to the OIA to have their complaint reviewed.

However, while this was happening,

• Student A makes a complaint to the university that by the lecturer ending the debate, the student’s freedom of speech was curtailed. Further, Student A had felt excluded by their classmates following the debate, and they felt this was a result of the lecturer stating that their comments were unacceptable.

• The student complaints panel meets and decides that this was not a freedom of speech breach.

• Student A appeals this within the university, but the appeal is not upheld.

• Student A now has the option of raising this with the OIA or (from 2024) the OfS.

We now have two similar bodies, with very similar parameters, who could adjudicate this decision. This is what we know so far about how these two bodies will interact:

The Higher Education (Freedom of Speech) Act 2023 sets out that a free speech complaint is not to be referred under the (OfS) scheme if a complaint brought by the complainant and relating to the same subject matter is being, or has been, dealt with under the (OIA) student complaints scheme.

The Higher Education (Freedom of Speech) Act 2023 also sets out that a complaint is not to be referred (to the OIA) if a complaint brought by the complainant and relating to the same subject matter is being, or has been, dealt with by the Office for Students.

As outlined above, alternative dispute resolution bodies (like the OIA) cannot normally review a complaint that has been considered by another alternative resolution body. However, these are two separate complaints, brought by two separate complainants.

Student B can take their complaint, (which was about the behaviour of student A) for review to the OIA.

Student A can take their complaint (which was about the action of a lecturer) to the OfS – they could also take this to the OIA.

Let’s take this example to its potentially complex conclusion:

If the OIA find Student B’s complaint to be justified, and that the institution’s decision that they were not harassed was unreasonable, they could recommend an apology and financial recompense for the distress caused.

If the OfS find student A’s complaint to be justified, that their freedom of speech was curtailed, they could also make recommendations to the institution – although it is not yet clear what these would be.

So, the OIA says it was unreasonable that the University didn’t find Student A to be in breach of student misconduct. But the OfS finds Student A’s complaint that their freedom of speech was justified because the university failed in its duty to take steps to secure freedom of speech.

What happens then? The OIA’s website states that:

We share learning from complaints to help improve policies and practices across the higher education sector.

How can advice from the OIA be used to improve policies and practice in institutions, if there is another dispute body reaching conflicting conclusions? Which outcomes are universities to follow?

Recommendations:

The OfS to undertake meaningful consultation with the sector, and sector bodies, ahead of implementing the Freedom of Speech complaints process. Given that this process is due to begin in 2024, there is limited time to do so.

The OfS will need to provide clear guidance to students on the differences between the two processes. For example, if free speech only forms part of a student’s complaint, but they choose to use the OfS process, will they lose their right to take the rest of their complaint to the OIA?

The OfS should ensure there is ample time for institutions to implement changes to their own guidance documents to students, between releasing information on how the process will work, and launching the process. Updating internal policies and procedures, template letters to students, webpages and staff training all take time.

Given that not all institutions are resourced to the extent that they have dedicated staff working in policy, compliance and complaints roles, the OfS should develop short, meaningful an accessible training on implementing these changes in institutions.