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

57. We have published guidance about our approach to recovering costs in relation to the imposition of a sanction on a registered provider, where we are empowered to do so under section 73 of HERA.³²
58. The Act will amend section 73 of HERA to empower the OfS to recover, from a registered provider, a constituent institution or a relevant students’ union, the OfS’s costs in relation to making a decision that a complaint under the OfS free speech complaints against that body is justified or partly justified. We have recently consulted on our approach to making decisions about free speech complaints.³³
59. The Act will also amend section 73 of HERA to empower the OfS to recover its costs in relation to the process that results in the imposition of a monetary penalty on a relevant students’ union in relation to a breach of any of its free speech duties. We have recently consulted on our approach to imposing a monetary penalty on relevant students’ unions.³⁴
60. The Act will also amend schedule 7 of HERA to include references to a relevant students’ union and the governing body of a constituent institution where appropriate. Schedule 7 of HERA sets out the processes by which the OfS can impose a requirement to pay costs under section 73.
61. We expect these amendments to section 73 and schedule 7 of HERA to take effect from 1 August 2024.
62. We propose to apply the policy position set out in our published guidance on the recovery of costs (set out in Regulatory advice 19, paragraphs 46-53), to our recovery of costs in the circumstances set out in paragraphs 58 and 59 above. This guidance addresses what the OfS will include in the calculation of costs, refers to the processes for recovering costs in schedule 7 of HERA, and sets out considerations in deciding whether cost recovery is appropriate and what amount of cost recovery is appropriate.

32 See www.officeforstudents.org.uk/publications/regulatory-advice-19-the-ofs-s-approach-to-determining-the-amount-of-a-monetary-penalty/.

33 See www.officeforstudents.org.uk/consultations-on-free-speech/consultation-on-the-ofs-s-new-free-speech-complaints-scheme/.

34 See www.officeforstudents.org.uk/consultations-on-free-speech/consultation-regulating-relevant-students-unions/.

63. The ability of the OfS to recover its costs in the circumstances set out in paragraphs 58 and 59 will be provided for in HERA. Therefore, we are seeking views in this consultation only in relation to matters of clarity about our proposed application of the policy position set out in Regulatory advice 19.
64. We consider that our proposal to apply the policy position set out in Regulatory advice 19 would ensure that our approach to the recovery of costs is consistent and clear across providers, constituent institutions and relevant students’ unions.