Consultation on the OfS’s approach to regulating students’ unions on free speech matters

Annex B: Proposed text of ‘Part IIIA – Regulation of relevant students’ unions on free speech matters’

Part IIIA – Regulation of students’ unions

Free speech duties

201A. The OfS will monitor whether students’ unions at providers registered in the Approved (fee cap) category (‘relevant students’ unions’) are complying with their free speech duties.

201B. For these purposes, ‘free speech duties’ means the duties set out in section A5 and section A6 of Part A1 of HERA. These duties are set out below.

List of relevant students’ unions

201C. The OfS will maintain and make publicly available a list of relevant students’ unions to which, according to the information held by the OfS, the free speech duties apply.

Guidance for relevant students’ unions

201D. The OfS has set out below guidance for relevant students’ unions on their free speech duties. This includes guidance for the purpose of helping to determine whether or not relevant students’ unions are complying with their free speech duties. The terms ‘free speech’ and ‘freedom of speech’ are used interchangeably.

201E. References to freedom of speech are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the European Convention of Human Rights as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form).

201F. The objective in section A5(2) of Part A1 of HERA is securing free speech ‘within the law’. There is no requirement to point to a legal basis for free speech. Speech is permissible and ‘within the law’ unless restricted by a specific law. Speech that is restricted by law is not lawful. For example, speech that amounts to unlawful harassment, victimisation or discrimination as defined in the Equality Act 2010 is not within the law.³⁶

201G. The duty set out in section A5 of Part A1 of HERA is framed around the duty ‘…to take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for [the relevant students’ union] to take’.

201H. In practice, the duty in section A5 of Part A1 of HERA is likely to require a wide range of steps to be taken. The OfS interprets the duty ‘to take the steps that… are reasonably practicable for it to take…’ to include deciding not to take a step which would have an adverse impact on freedom of speech without compelling lawful justification.

201I. Factors which may be relevant to an assessment of whether steps are ‘reasonably practicable’ may include, amongst other things:

1. the extent to which taking the step, or not taking the step, would prevent restrictions on freedom of speech;
2. the financial and other costs which would be incurred in taking the step and the extent to which it would directly disrupt other lawful activities.

201J. The duty in section A6 of Part A1 of HERA requires relevant students’ unions to maintain a code of practice dealing with the matters set out in that section. Those matters are:

1. the students’ union’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech,
2. the procedures to be followed by its staff and its members who are students of the registered higher education provider referred to in section A5(1) of Part A1 of HERA in connection with the organisation of—
1. meetings which are to be held on the premises occupied by the students’ union and which fall within any class of meeting specified in the code, and
2. other activities which are to take place on those premises and which fall within any class of activity so specified,
3. the conduct required of such persons in connection with any such meeting or activity, and
4. the criteria to be used by the students’ union in making decisions about—
1. the union’s support and funding for events and activities to which the duties in section A5 of Part A1 of HERA are relevant, and
2. whether to allow the use of premises and on what terms (which must include its criteria for determining whether there are exceptional circumstances for the purposes of section A5(5) of Part A1 of HERA).

201K. Section A6(3) of Part A1 of HERA also states that the code of practice ‘may deal with such other matters as the students’ union considers appropriate.’ The OfS considers that the code of practice should provide a broad framework for securing free speech at the relevant students’ union. This means that the code of practice may extend to a broad range of the relevant students’ union’s activities. A code of practice should not be limited to matters relating to procedures to be followed in relation to the organisation of speaking events.

201L. The OfS may from time to time, set out in separate guidance further information about how it will determine whether or not relevant students’ unions are complying with their free speech duties. Any guidance may include illustrative factors which the OfS will take into account in determining whether or not a relevant students’ union is complying with its free speech duties.

The OfS’s approach to monitoring of relevant students’ unions

Approach to general monitoring

201M. The OfS will take a risk-based and targeted approach to monitoring relevant students’ unions in relation to their free speech duties.

201N. The OfS will use a range of sources of information which may include interactions with students’ unions, ‘reportable events’ that providers must report to the OfS, notifications and complaints from third parties, including whistleblowers. The information may also include wider intelligence relating to the sector and/or individual relevant students’ unions or providers, including surveys or media reporting.

201O. The OfS may also use input from students – this may be insights from surveys, complaints raised with the OIA, or information that we have sought from individual students.

201P. The OfS will not systematically assess the compliance of each relevant students’ union with each of its free speech duties on a scheduled cyclical basis.

Enduring reporting requirement

201Q. Under HERA, each relevant students’ union must provide the OfS, or a person nominated by the OfS, with such information for the purposes of the performance of the OfS’s functions in relation to the monitoring of relevant students’ unions, as the OfS may require it to provide.³⁷

201R. If a relevant students’ union fails to comply with this requirement under HERA, and does not satisfy the OfS that it is unable to provide the information, the OfS may enforce the duty to comply with the requirement in civil proceedings for an injunction.

201S. The OfS will impose an enduring information reporting requirement on each relevant students’ union. Under that requirement, each relevant students’ union is required to inform the OfS of any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect the relevant students’ union’s ability to comply with any of its free speech duties.

201T. In interpreting ‘the reasonable judgement of the OfS', under paragraph 201S above, the OfS will, as a matter of policy, consider whether a reasonable students’ union acting in the interests of complying with its free speech duties (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material.

201U. The enduring information reporting requirement will be set out in a notice issued by the OfS to each relevant students’ union. A relevant students’ union must provide the OfS with the information at the time, and in the form and manner, specified in the notice.

Seeking further information from individual relevant students’ unions

201V. As a result of information that the OfS receives through its general monitoring, the OfS may decide to undertake further activity to help it to determine whether the relevant students’ union is failing, or has failed, or is at risk of failing, to comply with any of its free speech duties.

201W. The OfS may decide to engage with a relevant students’ union to seek further information. The OfS may decide to impose additional information reporting requirements on the relevant students’ union, in addition to the enduring information reporting requirement referred to above. An additional requirement may, for example, require the relevant students’ union to provide the OfS with specific information. Or it may include an enduring element which requires the relevant students’ unions to inform the OfS when the relevant students’ union proposes to take, or takes, particular actions. Any such information reporting requirement will be set out in a notice to the relevant students’ union. The relevant students’ union must provide the OfS with the information at the time, and in the form and manner, specified in the notice.

201X. The OfS may also decide to investigate a relevant students’ union. In deciding whether to investigate a relevant students’ union, the OfS will have regard to the matters referred to in paragraphs 201AA and 201BB below. An investigation may include a requirement for the relevant students’ union to provide the OfS with specified information at specified times.

Interventions

201Y. The OfS may intervene where it considers that a relevant students’ union is failing, or has failed, or is at risk of failing, to comply with any of its free speech duties.

201Z. The OfS has the following interventions at its disposal:

1. Seeking a voluntary undertaking from a relevant students’ union that it will do, or refrain from doing, things set out in the undertaking.
2. Imposing a monetary penalty. A monetary penalty will only be imposed where it appears to the OfS that a relevant students’ union is failing, or has failed, to comply with any of its free speech duties.

201AA. When deciding whether and how to intervene, the OfS must have regard to its general duties under section 2 of HERA. The OfS’s general functions relating to freedom of speech and academic freedom under section 69A of HERA, will also be relevant.

201BB. The OfS will also consider a range of factors. These may include the intervention factors in paragraph 167 of this regulatory framework. In considering those factors, the OfS will interpret them to refer to relevant students’ unions and in a way that reflects the character of their free speech duties. This means that, for example, the OfS may consider the impact of non-compliance with the free speech duties on students and other members of the relevant students’ union, and on visiting speakers. Not all intervention factors will be relevant in every circumstance, and the OfS will consider the relevant factors in the round when making its decision.

201CC. The primary purpose of intervening is to ensure that a relevant students’ union complies with its free speech duties. The approach that the OfS takes will depend on the features of an individual case. For example, the OfS may decide to impose a monetary penalty where it considers that non-compliance is particularly serious, without having first sought a voluntary undertaking. Alternatively, the OfS may seek a voluntary undertaking whilst also imposing a monetary penalty.

Monetary penalties

201DD. The OfS is empowered by HERA to impose a monetary penalty on a relevant students’ union if it appears to the OfS that it is failing or has failed to comply with any of its free speech duties.

201EE. The Secretary of State has set out in regulations the matters to which the OfS must or must not have regard when imposing a monetary penalty and the penalty amount.

201FF. If the OfS intends to impose a monetary penalty, it will notify the relevant students’ union of this intention and the amount of, and reason for, the proposed penalty. The relevant students’ union will have a specified period to make representations, which must not be less than 28 days from the date when the notice is received by the relevant students’ union. The OfS must have regard to these representations in taking a final decision about the monetary penalty. At the end of that process the OfS may issue a penalty, specifying the amount and the period within which it must be paid.

201GG. If the relevant students’ union disagrees with the decision to impose the monetary penalty, or the amount of the penalty, the relevant students’ union can appeal to the First Tier Tribunal. The requirement to pay the monetary penalty is suspended at any time when an appeal could be brought in respect of a penalty, or such an appeal is pending, unless the relevant students’ union informs the OfS that it does not intend to appeal.³⁸ An appeal can be made on one or more of the following grounds:

1. The decision is based on a factual error.
2. That it is wrong in law.
3. That it is unreasonable.

201HH. There are four possible outcomes of an appeal. The Tribunal may:

1. Withdraw the requirement to pay the penalty.
2. Confirm that requirement.
3. Vary that requirement.
4. Remit the decision whether to confirm the requirement to pay the penalty, or any matter relating to that decision, to the OfS.

[36] Speech/certain actions will not be unlawful if an exemption applies under the Equality Act 2010 or where there are provisions that permit certain actions/speech in certain circumstances, for example indirect discrimination if it is objectively justified.

[37] See HERA 69B(8).

[38] HERA Schedule 3(8)(a and b), and (9).