Thirty days ‘not enough time’ to deal with free speech complaints

The short window for English universities to deal with free speech issues before the Office for Students’ new scheme kicks in risks creating a “hierarchy of complaints” and “perversely incentivising” institutions to deal with these types of grievances over any others, according to sector leaders.

Institutions have just 30 days to resolve free speech complaints internally before the matter can be taken up by the regulator under the terms of the proposed scheme, which mission groups say is “unrealistic” and should be trebled to 90 days in line with the practices of the Office of the Independent Adjudicator (OIA), which has the power to rule on other student complaints.

“This is simply not enough time in most cases for a provider to investigate a complaint, particularly in view of the high level of complexity that free speech-related complaints often entail,” says the Universities Alliance in its response to the consultation on the complaints scheme, which has now closed.

“It is likely to lead to the OfS being inundated with claims that have been partially investigated, which is not a good use of public money.”

A 90-day limit would “avoid creating perverse incentives for providers to deal with free speech-related complaints more quickly than other student complaints”, says the group, which represents technical and professional universities, adding that “it has not gone unnoticed in the higher education sector that the 30-day window contrasts markedly with the high degree of flexibility the OfS has granted itself”.

The Russell Group agreed, stating: “Our members have told us that it is unlikely internal reviews would normally be completed within 30 days, particularly in complex cases or in smaller organisations (such as students’ unions) which have less resource to handle complaints.”

The grouping of 24 research-intensive universities adds that there is a risk that the short time frame “could create a hierarchy of complaints and force organisations to review these quicker than other matters”, and could mean that two parallel investigations are running in tandem that could yield conflicting decisions.

In its consultation response, Universities UK calls for the OfS to commit to a 12-month review of the new scheme, which utilises the powers handed to the regulator under the Freedom of Speech (Higher Education) Act.

The Russell Group echoes this call and says that, given the importance of the outcomes of the early cases in shaping future complaints, “expert advisers” should be consulted in the first few months of the scheme on any complex matters.

The Universities Alliance highlights that the proposed scheme – set to operate from August – is “quasi-judicial” in nature and calls for the OfS to outline “what standard of evidence it will be requiring from complainants, how it will determine the factfulness of evidence presented and make judgements”.

Universities UK says that while it does not object to a complainant being supported by a relative, student or member of staff, the OfS should clarify that “as this is not a legal process, we do not think it is appropriate for representations to be made by lawyers”.

The OfS also needs to provide more clarity on its definition of a “visiting speaker”, several of the responses highlight, which is not restricted to only those invited via a university’s or student union’s formal processes.

This approach is “highly ambiguous”, says GuildHE, and could “lead to confusion with any student or staff member being able to issue an invitation”.

It says a “legitimacy test” should be built into the regulation because providers “can’t be responsible for things that happen on their campus without their knowledge and neither should the regulator be condoning unofficial events as it potentially puts student safety at risk”.

GuildHE and others also highlight the need for clarity over how the new powers apply to overseas campuses – where laws on free speech could be more or less restrictive – and franchised provision delivered by other providers.

tom.williams@timeshighereducation.com