For the first time, academics, applicants for academic posts, visiting speakers and certain non-student members of higher education institutions have access to a dedicated and free mechanism through which they can raise concerns that their lawful freedom of speech rights have been infringed. The OfS describes the scheme as a means of reviewing complaints where an institution may have failed in its duty to secure freedom of speech and/or academic freedom within the law.
From the perspective of an individual concerned with academic freedom and free speech on campus, the scheme is broadly welcome. For years, individuals who believed that a university had interfered with their lawful expression often faced a stark choice: pursue expensive litigation, attempt judicial review, bring an employment claim, or simply walk away. The existence of a regulator-led complaints route lowers the practical barriers to enforcing free speech rights. The fact that the scheme is free, can result in recommendations for compensation, and may lead institutions to reconsider decisions gives it a degree of accessibility that courts and tribunals often lack.
Yet enthusiasm should be tempered with caution.
A recurring theme in my published work has been that debates about freedom of speech in higher education are often presented as a contest between two competing visions. One emphasises liberty, individual rights and strong protection for lawful expression. The other stresses community, dignity, equality and the responsibilities that exist within academic institutions. Neither approach, in isolation, adequately explains the legal reality of English higher education. Academic life requires a more nuanced framework capable of protecting robust inquiry while recognising the legitimate interests of others.
The OfS scheme is firmly rooted in what might be called a liberty-based conception of free expression. That is unsurprising. The statutory framework focuses on securing freedom of speech within the law and providing remedies where institutions fail to take reasonably practicable steps to protect it. The guidance and complaints process are therefore designed primarily around identifying whether protected expression has been impeded.
My concern is not that this emphasis is wrong. Rather, it risks obscuring the fact that universities operate within a complex legal environment. Institutions must comply not only with free speech obligations but also with duties arising under equality law, employment law, human rights law and health and safety legislation. In previous academic writing, I have argued that lawful speech can nevertheless cause genuine harm and that simplistic analyses frequently fail to account for the difficult balancing exercises demanded by the law.
The danger is that public discussion of the complaints scheme may encourage expectations that every allegation of interference with speech will produce a finding in favour of the complainant. It will not. The OfS itself acknowledges that universities may sometimes impose restrictions compatible with their legal obligations and that the scheme concerns freedom of speech “within the law”, not an unrestricted licence to say anything in any context.
There is also a deeper conceptual issue. Much of my scholarship has focused on the distinction between ordinary freedom of expression and what I have termed “academic free expression”. Academic freedom is not simply political speech carried out by academics. It derives much of its value from the pursuit, testing and dissemination of knowledge. It may therefore deserve particularly strong protection when expression is connected to genuine scholarly activity, methodological rigour and academic inquiry.
The complaints scheme does not fully resolve this distinction. It offers a mechanism for deciding whether free speech duties have been breached, but it does not answer the more difficult question of why certain forms of expression within universities warrant heightened protection compared with speech elsewhere. Nor does it fully address how tribunals, regulators and institutions should weigh academic freedom when it conflicts with competing rights and interests. These questions remain contested and will almost certainly generate further litigation and regulatory debate.
Another point worth noting is that the scheme is remedial rather than transformative. The OfS can investigate complaints and make recommendations. It can conclude that complaints are justified, partly justified or not justified. However, a complaints mechanism by itself cannot create a culture of intellectual openness. Universities do not become places of free inquiry because a regulator exists. They become such places when staff, students and institutional leaders collectively embrace disagreement, intellectual humility and rigorous debate.
Ultimately, I view the new scheme as a useful and perhaps necessary development. It fills an enforcement gap and provides individuals with a practical avenue for redress. That alone is an important achievement. But it should not be mistaken for a complete solution to the challenges facing freedom of speech and academic freedom in higher education.
The hardest questions remain unresolved: how to distinguish academic freedom from ordinary expression, how to balance speech rights against competing legal interests, and how to cultivate an institutional culture that values both robust debate and mutual respect. The OfS complaints scheme can assist with those challenges, but it cannot solve them on its own.
