As set out in my earlier blog, the OIA’s casework note repeatedly emphasises that its role is not to determine whether particular speech should have been protected. Rather, it focuses on whether providers followed reasonable procedures, considered the relevant legal framework and reached a reasonable decision. In short, the OIA asks whether the university’s decision-making process was fair.
The OfS appears to be asking a different question altogether. Its complaints scheme is explicitly directed at determining whether a provider has breached its statutory free speech duties. In deciding complaints, the OfS says it will assess whether it is more likely than not that a breach of the free speech duty occurred and whether the complainant suffered adverse consequences as a result.
This distinction is subtle but important. The OIA’s framework is fundamentally procedural. The OfS framework is fundamentally substantive. The OIA reviews the quality of the university’s decision-making. The OfS proposes to evaluate compliance with a specific legal duty to secure freedom of speech within the law.
The practical implications may be significant. Under the OIA model, a university that carefully records a balancing exercise between free speech and other considerations will often be on strong ground, even where reasonable people might disagree with the outcome. The OIA’s free speech case summaries repeatedly defer to institutional judgments where providers can demonstrate that competing interests were considered and weighed.
By contrast, the OfS envisages a more interventionist inquiry. Its guidance indicates that it will apply the three-step regulatory framework used to assess compliance with free speech duties and will make determinations about whether a breach has occurred. The language is notably less deferential than that adopted by the OIA.
The remedies available further illustrate the divergence. The OIA’s recommendations have traditionally focused on procedural redress, modest compensation and institutional learning. Even in the partially upheld Palestine protest case (CS082606), the outcome was limited to an apology, £250 compensation and staff training.
The OfS, however, explicitly states that its objective is, where possible, to place complainants back in the position they would have occupied had the breach not occurred. Its guidance identifies remedies such as reinstating talks, reinstating research opportunities, correcting records, reconsidering decisions and making institution-wide policy changes. It can also recommend compensation for distress, financial loss and lost opportunities.
Perhaps most importantly, the OfS scheme appears to reflect a different regulatory philosophy. The OIA presents freedom of speech as one consideration among many that providers should properly take into account. The OfS repeatedly emphasises its statutory role in promoting freedom of speech and academic freedom and assessing compliance with corresponding legal duties.
Whether this will produce materially different outcomes remains to be seen. But there is a real possibility that conduct which survives scrutiny under the OIA’s procedural reasonableness standard could nonetheless attract criticism under the OfS’s more explicitly rights-based approach.
Universities may therefore find that demonstrating good process is no longer sufficient. Increasingly, they may also need to demonstrate that the outcome itself is consistent with the statutory duty to secure freedom of speech within the law.
