Consultation on proposed regulatory advice and other matters relating to freedom of speech

Annex D: Matters to which we have had regard in developing our proposals

1. In formulating these proposals, we have had regard to the matters set out below.

The OfS’s general duties

2. The OfS’s general duties are set out in section 2 of the HERA. In performing our functions, we are required to have regard to:
   1. The need to protect the institutional autonomy of English higher education providers;
   2. The need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers;
   3. The need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers;
   4. The need to promote value for money in the provision of higher education by English higher education providers;
   5. The need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers;
   6. The need to use the OfS’s resources in an efficient, effective and economic way, and
   7. So far as relevant, the principles of best regulatory practice, including the principles that regulatory activities should be—
      1. Transparent, accountable, proportionate and consistent, and
      2. Targeted only at cases in which action is needed.
3. We have carefully considered each of our general duties. We consider that the proposals set out in this consultation are particularly relevant to general duties (a), (b), (e), (f) and (g): institutional autonomy; quality, choice and opportunity for students; equality of opportunity; efficient, effective and economic use of the OfS’s resources; and best regulatory practice.
4. We have placed significant weight on our general duty relating to institutional autonomy (general duty (a)). HERA currently defines ‘institutional autonomy’ to include ‘the freedom within the law of academic staff at English higher education providers—
   1. To question and test received wisdom, and
   2. To put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.³⁵
5. The proposed guidance in the Regulatory advice document is designed to help providers to navigate their statutory free speech duties. The proposed guidance sets out a number of steps which may be reasonably practicable for providers to take to secure free speech within the law. Whether a step is reasonably practicable, may depend on the individual circumstances of the provider. This means that providers will be able to, and will need to, exercise judgement in how they achieve compliance with their free speech duties.
6. HERA also, currently, defines ‘institutional autonomy’ to include the freedom of English higher education providers to conduct their own management and to determine their own approach to teaching and their own criteria for admissions and appointments. In developing our proposals, we gave weight to this aspect of institutional autonomy. However, we have balanced the need to protect this aspect of institutional autonomy against the legal requirement to protect academic freedom for individual members of academic staff.
7. The OfS must have regard to the need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers (general duty (b)). We consider that students will not have a high quality education if that education is not grounded in freedom of speech. In formulating our proposals relating to the guidance in the Regulatory advice document, we have taken the view that freedom of speech and academic freedom provide a necessary context for advancing new ideas, encouraging productive debate and challenging conventional wisdom, and that these are essential characteristics of quality higher education provision. The proposed guidance is designed to help providers, constituent institutions and relevant students’ unions to navigate their free speech duties. We therefore consider that the proposed guidance would promote quality in the provision of higher education.
8. The OfS must also have regard to the general duty (e): the need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers. Without free speech within the law being secured for all students, they will not have equal opportunity to participate fully in higher education or research. This may be especially important for those who could otherwise suffer harassment or discrimination on account of their protected characteristics, including their religious or philosophical beliefs.
9. We have also had regard to the need to use our resources in an efficient, effective, and economic way (general duty (f)). Providing guidance and illustrative examples in the Regulatory advice document is intended to help providers to navigate their new free speech duties. Improved compliance across the sector may enable the OfS to use its resources more efficiently and effectively by targeting areas of non-compliance.
10. In making decisions about what guidance and examples to include in the Regulatory advice document, we have had regard so far as relevant, to the principles of best regulatory practice (general duty (g)). These include the principles that regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed. Providing guidance and illustrative examples is intended to help providers to navigate their free speech duties and improve the transparency and accountability of the OfS’s regulation of those duties. Improved compliance across the sector may enable the OfS to target its activities more effectively at specific areas of non-compliance. In framing the proposed guidance and examples, we sought to provide an appropriate level of detail to provide transparency without prejudicing decisions that we will need to make on compliance with the free speech duties in individual cases.
11. We have also had regard to general duty (g) in formulating our proposals in relation to the recovery of costs. We consider that proposing to apply the same policy position on the recovery of costs across providers, constituent institutions and relevant students’ unions will provide clarity and consistency in respect of the OfS’s approach.
12. We have also had regard to our general duty (g) in making proposals about revisions to the regulatory framework to reflect changes to the OfS’s general duties and general functions required by the new legislation. These revisions will provide transparency about our new general duties and general functions.
13. We consider duties (c) and (d), which relate to competition where this is in the interests of students and value for money, to be important. However, in formulating these proposals we have given more weight to our other general duties.
14. The OfS is required to have regard to the need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers.
15. Competition could be encouraged by allowing providers to determine the extent to which they comply with their free speech duties, without regulatory intervention. However, this would not reflect the new statutory duties on providers, and on the OfS, in relation to free speech. In addition, we consider that this form of competition would not be in the interests of students. We therefore consider that other general duties, such as the duty relating to quality, outweigh this general duty in this instance.
16. The OfS must have regard to the need to promote value for money in the provision of higher education by English higher education providers. We consider that freedom of speech within the law and academic freedom are essential conditions for higher education that is high quality and accessible. It follows that securing free speech is also a prerequisite of value for money for students.

The Regulators’ Code

17. We have had regard to the Regulators’ Code³⁶ in developing these proposals.
18. Provision 1 of the Code states that regulators should carry out their activities in a way that supports those they regulate to comply and grow. We have framed our proposals in a way that will help providers, constituent institutions, and relevant students’ unions to navigate their duties to take steps to secure free speech within the law, which will be subject to OfS regulation. For instance, we are proposing to include in the Regulatory advice examples of ‘reasonably practicable steps’ including relating to the free speech code of practice. We consider that publication of the Regulatory advice will help providers, constituent institutions and relevant students’ unions to navigate their free speech duties.
19. Provision 2 of the Code states that regulators should provide simple and straightforward ways to engage with those they regulate and hear their views. We have sought to explain both our proposals and our policy intention in making them throughout this consultation document and related Regulatory advice document. The proposed Regulatory advice provides guidance to support providers, constituent institutions and relevant students’ unions to navigate their duty to take reasonably practicable steps to secure free speech within the law. Within the consultation, where relevant, we have also explained the alternatives we have considered and discounted. We will run several consultation events during the consultation period to enable stakeholders to discuss our proposals.
20. Provision 3 of the Code states that regulators should base their regulatory activities on risk. The proposed Regulatory advice provides guidance on key areas which may present the greatest regulatory risk.
21. Provision 4 of the Code states that regulators should share information about compliance and risk. The proposed Regulatory advice sets out a number of examples in which (depending on the particular facts) a provider, constituent institution or relevant students’ union may or may not have complied with its relevant free speech duties. We consider that the proposed guidance will help providers, constituent institutions and relevant students’ unions to navigate their free speech duties.
22. Provision 5 of the Code states that regulators should ensure that clear information, guidance and advice is available to help those they regulate meet their responsibilities to comply. The proposed Regulatory advice will help providers, constituent institutions and relevant students’ unions to navigate their new free speech duties and to understand the processes involved in cost recovery.
23. Provision 6 of the Code states that regulators should ensure that their approach to their regulatory activities is transparent. Our proposals provide transparency through the provision of guidance to help providers, constituent institutions and relevant students’ unions to navigate their new free speech duties, about which the OfS will be making regulatory decisions. Our proposals to revise the regulatory framework to refer to our new general duties and general functions, and our proposals relating to the recovery of costs, also provide transparency about our regulatory activities.

Public Sector Equality Duty

24. We have had regard to the Public Sector Equality Duty set out in section 149 of the Equality Act 2010. This duty states that the OfS must, in the exercise of its functions, have due regard to the need to:
    1. Eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited under the Equality Act 2010.
    2. Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
    3. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
25. Our proposals are intended to ensure that individuals in English higher education both feel free and are in fact free to express their views within the law. The proposed Regulatory advice may support the lawful expression of views that others may find offensive. Some groups who share protected characteristics may consider that they will be negatively affected by the lawful expression of views that they find offensive.
26. However, the proposed guidance may support those groups to put forward their counter views (within the law), and that may be a positive effect. Moreover, we consider that open, tolerant discussion of controversial matters may be more likely to promote good relations between such groups than censorship or silencing. Censorship or silencing risks concealing tensions without going any way to resolving them.
27. Moreover, one of the relevant protected characteristics is ‘religion or philosophical belief’. The proposed guidance may disincentivise unlawful discrimination or harassment directed at persons who share this characteristic. This may be a positive effect.
28. Our proposals may result in providers, constituent institutions and relevant students’ unions incurring costs. This may divert funds from other activities which might themselves have brought benefits for groups who share protected characteristics. However, that would be a choice made by the relevant organisation, rather than a direct causal effect of the proposals.
29. This consultation gives stakeholders an opportunity to inform the development of our proposals. Through this consultation we are seeking views on any unintended consequences of our proposals, for example on particular types of provider or student. We are also seeking views about the potential impact of our proposals on individuals on the basis of their protected characteristics. Responses to this consultation will inform our assessment of the impact of our proposals on different groups.

Guidance issued by the Secretary of State

30. We have a duty to have regard to statutory guidance issued by the Secretary of State under section 2(3) of HERA. Guidance issued in March 2022³⁷ set out the government’s view that it is essential for the higher education sector to uphold freedom of speech and for the OfS to regulate in relation to free speech matters:
    
    

    ‘Freedom of speech and academic freedom are fundamental principles which underpin our HE sector. Without action to counter attempts to discourage or even silence unpopular views, intellectual life on campus for both staff and students may be unfairly narrowed and diminished.’

31. We consider that freedom of speech and academic freedom are fundamental and that steps should be taken to secure free speech in higher education. Our proposals are designed to ensure that our implementation of the new free speech requirements is effective in upholding those fundamental principles. It is our view that the proposed Regulatory advice will help providers navigate their free speech duties and will support effective OfS regulation of those duties.
32. The Secretary of State’s guidance welcomed the efforts of the OfS to date in identifying ways to ensure that regulatory burden is proportionate. It also asked the OfS to consider ways in which it can work with the sector to communicate more clearly its expectations. We have proposed guidance that will provide additional clarity about our regulation of providers’, constituent institutions’ and relevant students’ unions’ compliance with their free speech duties. Greater clarity may help to minimise the regulatory burden of complying with our requirements. The proposed guidance notes that the steps that are reasonably practicable for an organisation to take to secure free speech, will depend upon the individual circumstances of the case.

35 HERA 2017 2(8)(c). The Act will amend HERA to omit 2(8)(c): see Schedule para 2(4)(c) of the Higher Education (Freedom of Speech) Act 2023. However, the Act will also add two additional general duties to section 2 of HERA, of which one will be ‘(ab) the need to protect the academic freedom of academic staff at English higher education providers’. See section 5(1) of the Act. The Act will also introduce a definition of academic freedom into HERA.

36 See https://www.gov.uk/government/publications/regulators-code.

37 See www.officeforstudents.org.uk/media/6937/ofs-strategic-guidance-20220331_amend.pdf.