My Lords, I shall now address the group of amendments that relate to the complaints scheme to be operated by the Office for Students.
Amendment 58, from my noble friend, Lord Willetts, seeks to mandate the provisions set out in paragraph 5(2) of new Schedule 6A on what complaints can or should be ruled out of scope for consideration under the scheme. Amendment 59 seeks to mandate that the OfS must dismiss “frivolous or vexatious complaints”, with the intention of reducing the potential bureaucratic burden on the OfS and higher education providers.
The current drafting’s use of “may” rather than “must”, as highlighted by the noble Lord, Lord Grabiner, is intentional. The wording is derived from the Higher Education Act 2004, which established the student complaint scheme of the Office of the Independent Adjudicator for Higher Education. This is the usual drafting approach when setting up a new body or new scheme in legislation, allowing for the decision-making body to have discretion in setting out the detail.
New Schedule 6A sets out the bones of the new scheme but it will be for the OfS to provide the detailed rules. The OfS needs the discretion to determine which rules should apply, looking at the scheme in the round. The noble Baroness, Lady Fox, highlighted some of the reasons why that is important. We anticipate that the Office for Students will consult on the rules, so it will be informed by key stakeholders in the sector. These rules will set out the detail of the type of complaint that the scheme will consider and the process to be followed.
I think we are aligned on my noble friend’s aspiration for coherence—he is smiling behind me; I am not sure whether that is encouraging—but it is a question of where that coherence is established. We respectfully suggest that that should be done in detail in the rules. My noble friend will absolutely be aware that paragraph 5(2)(b) of new Schedule 6A clearly sets out what is within scope for the OfS to decide—whether a free speech complaint should not be referred until the internal procedures are exhausted. We would expect that to be set out more clearly and in more detail when the OfS has gone through this procedure of drafting the rules.
It is also the intention that complaints should be referred under the scheme within a specified time limit. In the case of the OIA, the time limit is 12 months from the date on which the higher education provider tells the student its final decision. The OfS may well decide on a similar provision, but that is a level of detail for it to determine; it is too specific to be included in primary legislation. It is not necessary to mandate that there should be a time limit, as the OfS will want and need to include this as a matter of good administration. The OfS will also set out rules on how it will deal with frivolous or vexatious complaints for the reasons that the noble Lord, Lord Grabiner, eloquently exposed.
I know that my noble friend and the Committee more generally will have spotted that we use “must” in a couple of cases in the Bill. That is where it is considered particularly significant, such as in the requirement to make a decision and the need to make a recommendation if the regulator considers a complaint justified where “may not” is used—that is, where we have a prohibition.
Amendment 60, from my noble friend, Lord Sandhurst, seeks to confirm in the Bill that the OfS has the power to determine whether a provider has breached its freedom of speech duties. My noble friend is right to think carefully about how the complaints scheme will work.
My noble friend mentioned the Court of Appeal decision in Maxwell and the powers of the OIA. This was about its power to adjudicate on disability
discrimination. The court held that it was the OIA’s role to review complaints and consider whether the provider acted reasonably and in a justified way. Here, the Bill sets out the parameters of what the OfS must decide. It is clear that it will have the power to determine whether they consider that there has been a breach of the free speech duties.
The Bill specifies that the OfS must provide a scheme under which it is to review and determine free speech complaints. Such complaints are defined as claims that the person has suffered adverse consequences as a result of the governing body’s action or inaction, and
“claims that, or gives rise to a question as to whether, the action or inaction was a breach of a duty of the governing body under section A1.”
That is at paragraph 2 of new Schedule 6A. Where a complaint is referred under the scheme, the OfS will be required to make a decision as to the extent to which the complaint is justified. As I mentioned earlier in relation to the Maxwell case, this makes it clear that the OfS may determine whether a provider has breached the freedom of speech duties. Indeed, it is a central part of how the complaints scheme will operate.
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Amendment 61 from the noble Lord, Lord Collins of Highbury, which was eloquently presented by the noble Baroness, Lady Thornton, seeks to set out in the Bill that the OfS must be mindful of the right of students to feel safe on campus, and the other legal duties on providers, colleges and student unions, when considering whether a complaint under the complaints scheme is justified. These other duties would need to be specified in government guidance issued within three months of the passage of the Bill.
As I mentioned, Clause 8 provides that the OfS may make a decision under the complaints scheme as to whether an individual has suffered adverse consequences as a result of a breach of specified freedom of speech duties set out in the Bill. The wording of new Sections A1 and A5 is clear that the main duty is to take “reasonably practicable” steps to secure freedom of speech. The Bill does not say that the freedom of speech duties override other duties and so the Bill must be read consistently with other legislation. I heard the noble Baroness say that she has repeatedly raised issues of compatibility; I hope this goes some way to addressing those. It would not be reasonably practicable for a provider, college or student union to act in a way which means that they would be in breach of their other legal duties, as I have said before.
Given the wording of the duty, when the OfS considers a complaint under the complaints scheme it will already have to take into account all the circumstances, including student safety and other legal duties on providers, colleges and student unions. As for guidance for those subject to duties under the Bill, we anticipate that the OfS will issue guidance about the free speech duties and the complaints scheme, so separate government guidance will not be needed. Indeed, it could confuse matters.
I thank the noble Lord, Lord Triesman, for his generous introduction to his Amendment 62, which would introduce a free speech and academic freedom
officer at the OfS. The officer would act on behalf of the OfS, with powers to require anyone to do, or refrain from doing, anything found necessary as a result of an inquiry under the complaints scheme, and to publish their findings and reasons. Under this amendment, constituent institutions of registered higher education providers and student unions would be obliged to comply with the requirements of the officer, unless they had compelling reasons for not doing so and they published and shared these reasons with the OfS. The OfS would then be required to make immediate arrangements to consider them and make a binding decision in the case. The amendment also seeks to ensure that compliance with the requirements of the officer is made a condition of registration with the OfS, and that, in the case of student unions, it is made a condition of their financial support.
Much thought has been given to the design of the complaints scheme, and it has always been our intention that decisions made under the scheme should give rise only to recommendations, not requirements. This is the common approach of ombudsmen schemes that operate in the public sector, and we believe that it is the right approach here.
We would expect the OfS’s recommendations to be complied with, as a registered provider, constituent institution or student union could incur significant reputational damage if it did not comply. If it did not comply, the complainant would in any event have the right to bring tort proceedings before the court. In doing so, we would expect the OfS’s decision under the complaints scheme, including any reasons for the decision, to form part of the evidence put before the court, and it seems unlikely that the result would be different.
I do not believe that the designation of a free speech and academic freedom officer is necessary as the Bill already makes provision for the creation of a new role on the OfS board for the director for freedom of speech and academic freedom. The director will have responsibility for investigations of infringements of the free speech duties and will oversee the imposition of sanctions for regulatory breaches, as well as recommendations under the complaints scheme.
On the final sub-paragraphs of the amendment, I assure the noble Lord that it is not necessary to make compliance with OfS requirements a condition of registration for providers, or of financial support for student unions. The Bill already makes provisions for new registration conditions relating to freedom of speech. Under Clause 6, the OfS must ensure that the ongoing registration conditions of each registered higher education provider include a condition requiring the governing body of the provider to comply with the free speech duties. I think that this lay at the heart of the noble Lord’s amendment. The Bill also makes provision for the regulation of student unions’ free speech duties by the OfS, and allows the OfS to impose a monetary penalty on a student union if it breaches its duties.
In the light of these measures, I am confident that providers, their constituent institutions and student unions will be bound by, and comply with, their free speech duties under the Bill, and will comply with any requirements or recommendations made by the OfS.
Finally, I turn to the notice from the noble Lord, Lord Wallace of Saltaire, of his intention to oppose the inclusion of Clause 8 in the Bill, which was ably communicated by the noble Baroness, Lady Garden. I understand that he wishes to clarify why the Office of the Independent Adjudicator for Higher Education is not sufficient to respond to student complaints. Clause 8 is essential to the Bill. The OfS complaints scheme will provide a clear, effective and cost-free route for all individuals who have a specific complaint to seek redress for breaches of the new freedom of speech duties. The noble Baroness asked what the clause adds. Without it, staff and members of the provider, and visiting speakers, would not have access to redress. The OfS scheme also provides a route for complaints against student unions, without which there would also not be access to redress in that regard.
It is true that a student can currently bring a complaint against their provider or college through the OIA and they will still be able to do so. The OIA will remain the body for general student complaints. That means that students will have a choice. If, for example, they have a number of various complaints, including one involving freedom of speech, they may want to go to the OIA, but if their complaint is solely about freedom of speech they may wish to use the OfS scheme, which is dedicated specifically to that.
Unlike the OIA scheme, the OfS scheme will focus exclusively on freedom of speech and academic freedoms. I know that your Lordships previously expressed support for the OfS taking on this role. We are confident that the OfS’s experience and technical expertise will help it to perform the role effectively, with its clear view across the whole sector.
I assure noble Lords that there will not be unnecessary duplication or a sequencing issue across the operation of the two schemes. Paragraph 5 of new Schedule 6A will enable the OfS to make rules to ensure that a free speech complaint will not be considered under its scheme if
“a complaint brought by the complainant and relating to the same subject-matter is being, or has been, dealt with”
by the OIA. Again, I think that was a point that my noble friend Lord Willetts raised.
Paragraph 19 of the schedule will enable the OIA to make an equivalent rule the other way around. I should point out to my noble friend that Amendment 58 would not in any event result in the OIA scheme having to be used before the OfS could consider a complaint. The OfS scheme will be vital in supporting the strengthened duties under the Bill. It will provide a clear and accessible route for making complaints and seeking redress for all individuals protected by the Bill. It is therefore a key component in ensuring that freedom of speech is protected within higher education. I hope I have offered reassurance about the need for this important scheme.