Consultation
Published 14 December 2023
Consultation on the OfS’s approach to regulating students’ unions on free speech matters
Published 14 December 2023
Proposal B: Guidance for relevant students’ unions about their free speech duties
Summary
Our proposed approach to providing guidance for relevant students’ unions on their free speech duties, in the regulatory framework. 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.
- The OfS will provide guidance for relevant students’ unions on their free speech duties. This guidance will appear in the regulatory framework. The Act will amend section 75 of HERA to require this.
- Under section 75 (7A) of HERA, as amended, that guidance:
- must include guidance for the purpose of helping to determine whether or not students’ unions are complying with their free speech duties; and
- may in particular specify:
- what the OfS considers students’ unions need to do to comply with their free speech duties;
- factors which the OfS will take into account in determining whether or not a students’ union is complying with its free speech duties.
- Under Proposal B, we are proposing to include a new section in the regulatory framework. This new section sets out our proposed approach to the regulation of students’ unions in relation to free speech matters. The proposed section, entitled ‘Part IIIA – Regulation of relevant students’ unions on free speech matters’, is attached at Annex B.
- In that proposed section, we have set out in full the free speech duties that apply to relevant students’ unions. We have also included guidance for the purpose of helping to determine whether or not relevant students’ unions are complying with those duties. The guidance that we have provided focuses on three important areas:
- freedom of speech within the law;
- factors that may be relevant to an assessment of whether steps are reasonably practicable for the purposes of the free speech duty set out in section A5 of Part A1 of HERA;
- the scope of a free speech code of practice, required under section A6 of Part A1 of HERA.
- In that proposed section, we have also stated that 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 may take into account in determining whether or not a relevant students’ union is complying with its free speech duties.
- The guidance that we are proposing to add to the regulatory framework focuses on three key areas underpinning the new free speech duties of relevant students’ unions. To comply with their free speech duties, relevant students’ unions must understand each of those areas, amongst other things.
- First, the guidance notes the boundaries of the protections for free speech. Free speech ‘within the law’ is protected. Unlawful speech is not protected. Relevant students’ unions must have an accurate understanding of the boundaries of protected speech.
- Second, the guidance considers the framing of the duty to take ‘reasonably practicable’ steps to secure freedom of speech within the law. The framing of that duty is important and relevant students’ unions are likely to have to take a wide range of steps to comply with it.
- Third, we note that relevant students’ unions should ensure that their codes of practice, required under section A6 of Part A1 of HERA, apply to a broad range of their activities. We consider that a code of practice should not be limited to matters relating to procedures to be followed in relation to the organisation of speaking events.
- We have considered whether to provide more detailed guidance on individual elements of the free speech duties. We have decided not to do so at this stage, for the following reasons:
- In monitoring relevant students’ unions’ compliance with their free speech duties, the OfS will undertake a quasi-judicial role. The OfS will be required to determine each individual case on its own facts. Given that role, we consider that it would not be appropriate to provide generic guidance on specific subject matters, or in relation to specific policies or definitions that relevant students’ unions may have adopted. Doing so may risk prejudging our determination of cases in the future which concern those subject matters or those policies or definitions.
- A diverse range of organisations may fall within the definition of ‘relevant students’ union’. The definition may include incorporated bodies and unincorporated bodies, with membership ranging from a small number of students to several thousand students. It will be important that our approach is appropriately sensitive to this diversity. As the OfS develops its approach to regulation in this area, we will continue to consider what form of further guidance, if any, may be suitable.
- The free speech duties are newly extended to relevant students’ unions. The development of any guidance should be informed by the OfS’s actual experience of monitoring relevant students’ unions. Through our role we may identify recurring issues on which it would be appropriate for the OfS to publish guidance.
- Under our proposals, the OfS may, from time to time, publish further guidance for the purpose of helping to determine whether or not students’ unions are complying with their free speech duties.
- We would also expect to comment in due course on the decisions we make under our new monitoring duties and to explain the view that we have reached based on the facts and circumstances of individual investigations concerning relevant students’ unions. This will provide relevant students’ unions and other stakeholders with insights into how we have reached these decisions in the particular circumstances that informed them.
Questions:
Question B: Do you have any comments on our proposed approach to providing guidance for students’ unions, in the regulatory framework?
Published 14 December 2023
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