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

2. The OfS’s general duties are set out in section 2 of the Higher Education and Research Act 2017 (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 (b), (e), (f) and (g): quality, choice and opportunity for students; equality of opportunity; efficient, effective and economic use of the OfS’s resources; and best regulatory practice.
4. As relevant students’ unions are not higher education providers, they do not fall within the definition of our general duty (a), which concerns the institutional autonomy of higher education providers. We therefore place less weight on this duty in formulating these proposals than we might do for proposals which are aimed at regulating higher education providers.
5. However, 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.’³⁹

6. In formulating our proposals for regulating relevant students’ unions’ compliance with their free speech duties, we have placed significant weight on the need to protect this aspect of institutional autonomy concerning academic staff. We consider that our proposals relating to our regulation of relevant students’ unions will support a breadth of contexts in which academic staff can put forward ideas and opinions and therefore will enhance this aspect of institutional autonomy.
7. The OfS must have regard to the general duty (b): the need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers. We consider that students will not have a high quality education if that education is not grounded in freedom of speech. That includes freedom of speech for themselves, for fellow students, for those who teach or supervise them and for visiting speakers. In formulating our proposals, 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. We consider that our proposals advance the aim that all providers and relevant students’ unions secure freedom of speech within the law for students, staff and visiting speakers. We therefore consider that they would promote quality in the provision of higher education.
8. We propose that we would normally expect to publish information about a relevant students’ union’s compliance with its free speech duties. This may provide students with information that may help to inform their choices about where to study.
9. 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, discrimination and victimisation on account of their protected characteristics, including their religious or philosophical beliefs.
10. Our proposed regulation of relevant students’ unions may support the lawful expression of views which others may find offensive. Some groups who share protected characteristics may consider that they will be particularly negatively affected by the lawful expression of views that they find offensive. However, our proposed approach to regulating relevant students’ unions 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. We therefore consider that our proposals concerning our regulation of students’ unions will help create an environment in which students from all backgrounds can succeed in higher education.
11. The OfS must have regard to the need to use its resources in an efficient, effective and economic way (general duty (f)). In formulating our proposals, we have considered how we will have regard to these factors in regulating relevant students’ unions. It is our view that a risk-based approach to our regulation of relevant students’ unions will make the most efficient and effective use of our resources, while also reducing the burden on students’ unions.
12. The OfS is required to have 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 and consistent, and targeted only at cases in which action is needed.
13. As stated above, we propose to adopt a risk-based approach to the regulation of relevant students’ unions. We consider that this approach would enable our regulation to be proportionate and targeted. We also propose to publish information relating to relevant students’ unions about their compliance with their free speech duties. We consider that doing so is in the interests of transparency and accountability. Published examples of investigations and outcomes may support knowledge and understanding associated with the application of the new free speech duties and will provide assurances that the OfS is regulating effectively around freedom of speech.
14. Duties (c) and (d) relate to the need to encourage competition between higher education providers where this is in the interests of students and the need to promote value for money in the provision of higher education.
15. We consider these duties to be important, but in formulating these proposals we have given more weight to our other general duties. This is because relevant students’ unions are not providers, and matters relating to competition with one another or the provision of higher education are less relevant to these organisations.
16. However, as we consider that freedom of speech within the law and academic freedom are both essential conditions for higher education that is high quality and accessible, it follows that securing free speech is also a pre-requisite of value for money for students. This means that students will receive best value for money where both their provider and students’ union(s) that are at their provider act to secure freedom of speech.

[39] HERA 2017 2(8)(c). The Act will amend HERA to omit 2(8)(c): see Schedule para 2(4)(c) of the Act. However, the Act will also add two additional general duties to s. 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 s5(1) of the Act. The Act will also introduce a new definition of academic freedom into HERA.

17. We have had regard to the Regulators’ Code⁴⁰ 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 relevant students’ unions to comply. For instance, we are proposing that we would normally publish information relating to an investigation into a potential breach, by a relevant students’ union, of its free speech duties. We consider that our publication of relevant information may help providers and relevant students’ unions to comply in the future.
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. Where relevant, we have also explained the alternatives we have considered and discounted, to enable respondents to tell us if they consider we should not have discounted a particular option. We will promote and run several consultation events during the consultation period to engage with potential participants.
20. Provision 3 of the Code states that regulators should base their regulatory activities on risk. As stated above, we propose to adopt a risk-based approach to the regulation of relevant students’ unions. We are not proposing systematically to assess the compliance of each relevant students’ union with each of its free speech duties on a scheduled cyclical basis. We consider that this approach would enable our regulation to be proportionate and targeted.
21. Provision 4 of the Code states that regulators should share information about compliance and risk. We are proposing to publish information about the compliance of relevant students’ unions with their free speech duties. We consider that these proposals will inform relevant students’ unions about relevant risks to free speech.
22. Provision 5 of the Code states that regulators should ensure clear information, guidance and advice is available to help those we regulate meet their responsibilities to comply. We are proposing guidance to relevant students’ unions that includes information about three key areas that are relevant to compliance. We are also proposing to publish information relating to relevant students’ unions’ non-compliance with their free speech duties, including reasons for, and the evidence underlying, our assessments. We consider that this information will help relevant students’ unions to meet their duties to comply.
23. Provision 6 of the Code states that regulators should ensure that their approach to their regulatory activities is transparent. We are proposing to publish information relating to students’ unions’ non-compliance with their free speech duties, including the evidence underlying our assessments.

[40] See the Regulators' Code.

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. We are not consulting on whether we should regulate relevant students’ unions on free speech matters. We will be required to do this under the Act. Rather, we are consulting on how we should do this.
26. Under existing legal and regulatory requirements, providers and relevant students’ unions must comply with any relevant free speech duties and equality law duties, including the public sector equality duty where it applies. The matters on which we are consulting do not change this requirement.
27. Our proposed regulation of relevant students’ unions may support the expression of lawful views which others may find offensive. Some groups who share protected characteristics may consider that they will be particularly negatively affected by the lawful expression of views that they find offensive. However, our proposed approach to regulation of relevant students’ unions may support those groups to put forward their counter views (within the law), and that may be positive. 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. The latter approach risks concealing tensions without going any way to resolving them. We therefore consider that our proposed regulation may foster good relations, particularly between students who share a relevant protected characteristic and those who do not share it.
28. Moreover, one of the relevant protected characteristics is ‘religion or philosophical belief’. Our proposed approach to regulating students’ unions may offer a route for addressing, and may also disincentivise, unlawful discrimination, harassment and victimisation directed at persons who share this characteristic. This may be a positive effect.
29. Our proposed regulation of relevant students’ unions may result in students being exposed to a wider range of views and staff feeling able to teach and research a wider range of topics. These effects may be positive, in particular for individuals who share a protected characteristic who may currently be particularly impacted by restrictions on free speech, such as those with protected religious or philosophical beliefs relating to minority views.
30. Our proposals may be in the wider public interest as providers should be environments where received wisdom is challenged, and contentious or discomforting topics are confronted, in the pursuit of new knowledge.
31. 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.

32. We have a duty to have regard to guidance issued by the Secretary of State under section 2(3) of HERA. Guidance issued in March 2022⁴¹ 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 around freedom of speech and academic freedom:

‘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.’

33. 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 requirements of the Act, including enforcing of new duties for students’ unions, is effective in upholding these fundamental principles.
34. The guidance recognised that the work of the OfS creates regulatory burden for the sector and stated that the OfS should work to ensure that this burden is proportionate to our regulatory requirements. In formulating our proposals we have made efforts to minimise unnecessary regulatory burden, for instance through our proposed risk-based approach to monitoring.

[41] See Guidance to the Office for Students on strategic priorities for FY22-23. This guidance was intended to supersede previous guidance from the Secretary of State.