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

Executive summary

Background

Freedom of speech and academic freedom are essential to higher education. The core mission of universities and colleges is the pursuit of knowledge, and the principles of free speech and academic freedom are fundamental to this purpose. They provide an environment to advance new ideas, encourage productive debate and challenge conventional wisdom. All staff and students are entitled to teach, learn and research in a culture that values vigorous debate, including in relation to difficult or contentious or uncomfortable topics. There is currently evidence to support concerns about freedom of speech in higher education: the 2023 National Student Survey² found that one in every seven students in England feels unable to express their own views.

The Office for Students (OfS) is an independent public body. We are not part of central government, but we report to Parliament through the Department for Education (DfE). We regulate higher education in England. Our primary aim is to ensure that English higher education is delivering positive outcomes for students – past, present, and future. We seek to ensure that students, from all backgrounds (particularly the most disadvantaged), can access, succeed in, and progress from, higher education. You can read more about how we currently regulate universities and colleges in England, on our website.³ The Higher Education (Freedom of Speech) Act 2023 was passed earlier this year. When its provisions come into force, it will give the OfS more powers and duties to regulate universities and colleges, and their students’ unions, on free speech issues. You can read more about this on our website.⁴

Regulation of students’ unions

Students’ unions can play an important part in the academic and wider experience of students and form a significant element of the overall student experience.

The Act will impose new duties on some students’ unions. These will generally apply to students’ unions at universities and colleges that are registered with us in the ‘Approved (fee cap)’ category. The new duties are about the securing of free speech, and the maintenance of a code of practice relating to free speech.

Once the provisions are in force, we will have a new role in regulating students’ unions on free speech issues. Specifically: from 1 August 2024 the OfS will monitor and regulate how students’ unions comply with these new free speech duties. This document sets out proposals for how we will do this. We are now seeking feedback on our proposals.

How we propose to regulate students’ unions on free speech matters

Our proposals cover:

• Maintaining and making public a list of relevant students’ unions. This is about how we gather information to create a list of students’ unions that are subject to the new duties and to regulation by the OfS. The proposal also covers publication of the list.
• Guidance for relevant students’ unions about their free speech duties. The proposed guidance notes the boundaries of free speech within the law. It considers the framing of the duty related to securing free speech. And it notes that the code of practice should apply to a broad range of activities.
• Monitoring relevant students’ unions. The proposals set out a risk-based approach to monitoring whether students’ unions are complying with their free speech duties. They also set out what we might do if we consider that a students’ union is not complying. This could include imposing fines on the students’ union. They also set out our approach to intervention and the range of interventions that we may make.
• Determining the amount of a fine (or ‘monetary penalty’). These proposals are contingent on forthcoming regulations. They set out, on that conditional basis, how we propose to calculate a monetary penalty on a students’ union if it appears to us that it is failing or has failed to comply with any of its free speech duties.
• Minor and consequential amendments to the regulatory framework to reflect our new regulation of students’ unions on free speech matters.
• The publication of information. These proposals set out what information we would normally expect to publish in connection with a students’ union’s compliance or non-compliance with its free speech duties.

Our new role will also include operating a free speech complaints scheme for students, staff and visiting speakers to bring complaints about free speech issues at universities, colleges and students’ unions. People who want to make a complaint will not have to pay to use the scheme. You can give feedback on our proposals on how we will operate the scheme.⁵

Who should provide feedback on our proposals

We are particularly (but not only) interested in hearing from students, students’ union representatives, and staff and leaders at providers that will be engaging in the new arrangements.⁶ We welcome views from all types and size of provider and students’ union. We also welcome the views of schools, employers, third sector organisations, policy bodies and others with an interest in freedom of speech in English higher education. 

Feedback on the proposals can be given via the online survey⁷ or you can find out more at one of the consultation events.

You may be interested in reading and responding to our consultation on a new freedom of speech complaint scheme.⁸

Next steps

Once the consultation has closed on 17 March 2024, we will consider the feedback and make decisions in respect of our proposals for how we regulate students’ unions on free speech matters.

We expect to consult on further key elements of our implementation of the legislation. This will give providers, their staff and students and other interested parties an opportunity to inform our approach.

[2] See information on the National Student Survey (NSS). 

[3] See the OfS website.

[4] See our webpages on freedom of speech.

[5] See our consultation on a new freedom of speech complaint scheme.

[6] We use the terms ‘providers’ and ‘registered providers’ to refer to registered higher education providers as specified on the OfS Register. 

[7] See the online survey for this consultation. 

[8] See our consultation on a new freedom of speech complaint scheme.