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

49. Section 2 of HERA sets out the general duties to which the OfS must have regard in performing its functions. The Higher Education (Freedom of Speech) Act 2023 amends section 2 of HERA to include two additional general duties. These are:
    1. The need to promote the importance of freedom of speech within the law in the provision of higher education by English higher education providers.
    2. The need to protect the academic freedom of academic staff at English higher education providers.²⁸
50. The Higher Education (Freedom of Speech) Act 2023 also amends HERA to insert a new section 69A.

51. We are proposing to amend the OfS regulatory framework to make reference to these new general duties and general functions.³⁰ The proposed amendments are:
    1. An addition to the text of paragraph 10 setting out new general duties.
    2. New paragraphs 54A and 54B making reference to the OfS’s new general functions as they are stated in new section 69A of HERA.
52. The text of the proposed amendments is as set out in Annex C.

28 See HERA section 2(1)(aa) and 2(1)(ab).

29 See HERA section 69A(1) and 69A(2).

30 See www.officeforstudents.org.uk/publications/regulatory-framework-for-higher-education-in-england/.

53. The OfS regulatory framework constitutes the regulatory framework for higher education in England required under section 75 of HERA. It states how the OfS intends to perform its various functions and provides guidance for registered higher education providers on the ongoing conditions of registration. The OfS is required to have regard to the regulatory framework when exercising its functions.³¹
54. We therefore consider that it is necessary to update this document to reflect the new general duties and general functions for the OfS to be introduced by the Higher Education (Freedom of Speech) Act 2023. The proposed addition to paragraph 10 of the regulatory framework makes reference to the OfS’s new general duties.
55. The proposed amendments to paragraph 10 of the regulatory framework would add the two new general duties, relating to free speech and academic freedom, to the list of general duties stated in that paragraph. As a result, the following text in paragraph 11:

‘In making decisions, the OfS will take all of these general duties into account, weighing one against the others as it deems appropriate.’

would then make reference to those new duties in addition to those already within its scope. Paragraph 11 of the amended regulatory framework would therefore state how the OfS would take account of these general duties: namely (and in broad terms) in the same way as it takes account of its other general duties.

56. We considered proposing to include, in addition to new paragraphs 54A and 54B, a more detailed statement of how the OfS intends to perform its general functions. We discounted that option. This is because the OfS’s approach may depend on future experience in this area of regulation, including experience gained through operating the free speech complaints scheme. We therefore consider that our stated approach to these general functions should allow for flexibility.

31 See HERA section 75(2) and 75(3).