Higher Education (Freedom of Speech) Bill

Written evidence submitted by the Office of the Independent Adjudicator for Higher Education (OIA) (HEFSB20)

House of Commons Public Bill Committee – Higher Education (Freedom of Speech) Bill

Executive Summary

· The Office of the Independent Adjudicator for Higher Education (OIA) is the operator of the student complaints scheme in England and Wales. We have received fewer than 20 complaints involving freedom of speech issues since 2015. For context we received around 2,600 complaints in total in 2020.

· We remain concerned that having two complaints schemes for student complaints, with overlapping but not identical remits, is very likely to cause confusion and put additional pressure on students having to choose where to take their complaint about freedom of speech issues.

Background

1. The OIA is designated under the Higher Education Act 2004 as the operator of the complaints scheme for higher education students in England and Wales.

2. Under the Act, membership of the OIA Scheme is compulsory for any provider that meets the definition of a "qualifying institution". A diverse range of higher education providers are now covered by the OIA Scheme; from small, industry-specific independent providers, to initial teacher training providers, to large further education colleges and universities. All providers on the Office for Students Register are qualifying institutions. Our membership has increased from around 150 providers (2014) to almost 800 providers (2021).

3. The OIA is free to students; the Scheme is funded by compulsory subscriptions from providers, determined by reference to size and type of provider, with a smaller case-related element.

4. Higher education students in England and Wales can complain to the OIA about their provider. The OIA has a wide remit to consider complaints from students about any "act or omission" of a member provider. This includes complaints about service quality, course provision, academic appeals, placements, disciplinary and fitness to practise procedures, and accommodation that is owned or managed by the higher education provider, as well as freedom of speech concerns.

5. The OIA is an ombuds scheme and not a regulator but it is part of the wider framework of regulation for higher education in England and Wales. We are independent of governments, regulator/funding bodies, higher education providers and students.

6. However, we liaise regularly with governments and work with other sector bodies to share information which contributes to our respective roles. For example, we have a Collaboration Agreement with the Office for Students.

7. The OIA is the alternative dispute resolution body for higher education complaints, approved by the Chartered Trading Standards Institute under the European Directive on Consumer Alternative Dispute Resolution. It is generally accepted that it is not good practice to have multiple routes of ADR redress for the resolution of a complaint because it can make the landscape difficult to navigate and make it harder for individuals to make the right choice for them – particularly if they are vulnerable.

8. The OIA has responded publicly to both the government policy paper Higher education: free speech and academic freedom and the Higher Education (Freedom of Speech) Bill. The responses can be found here and here.

Student complaints and Higher Education (Freedom of Speech) Bill

9. The Bill creates a second route for students to complaint about freedom of speech concerns to the Office for Students (OfS), allowing students to choose which route to take.

10. A third, legal route would also be available through the courts with the newly created tort.

11. We are concerned that creating a second complaint route with overlapping, but not identical remits, will be confusing for students and add complexity for higher education providers as well as students’ unions and other student representative bodies advising students.

12. It will be important for all parties to be as clear as possible for students about what each body can do, and in particular the extent to which each can offer a remedy.

13. Where the OIA upholds a complaint, it can recommend a remedy for any aspect of the complaint, which often arises in the context of another university procedure for example an academic appeal, disciplinary or fitness to practise procedure. Under the Bill, the OfS would be able to consider and decide all the issues raised but would only be able to offer a remedy to the student for the freedom of speech concerns. The OIA Scheme would recommend a remedy for any aspect of the complaint that it upheld.

14. It is possible that an incident raising freedom of speech issues could result in some individuals (including students) complaining to the OfS and other students complaining to the OIA about the same incident and receiving a different remedy depending on the context of the complaint.

15. There is provision in the Bill to prevent the same complaint being considered by both the OIA and the OfS, which is important, but it does mean that if a student isn’t fully informed or does not understand all the consequences of their choice, the decision they make may not be the most beneficial for their particular circumstances. The OIA cannot refuse to consider a complaint that falls within its Rules so if a student decided to complain to the OIA and not the OfS the OIA could not decline to consider it on the basis of guidance agreed between the two bodies.

16. We are fully committed to continuing to work with the Office for Students, government and other parties to try and minimise potential confusion, but we remain concerned that having more than one ADR route to choose from may be disadvantageous for some students.

Free Speech and Academic Freedom Director

17. As the ombuds service for student complaints about higher education providers, our role is to provide independent and impartial review of unresolved complaints about the bodies in our jurisdiction. We are independent of, and have a different role from, the role of a regulator, and it is important that this distinction is maintained.

18. It will be challenging to make sure that the Free Speech and Academic Freedom Director, whose role includes championing free speech, will also be in a position to fairly and impartially review complaints about freedom of speech issues which they may already have spoken publicly about. The role also blurs the line between the overseeing role of a regulator and that of independent and impartial ombuds, with potential to undermine how ombuds schemes are viewed both in the higher education sector and more widely. If the Director is to consider student complaints it would be crucial for the appointment to have a good understanding of these different functions and our role.

September 2021