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

69. The Act will require us to monitor relevant students’ unions on free speech matters.²⁰ We are proposing to include a new section in the regulatory framework setting out our approach to this matter. The proposed section is attached at Annex B. We have discussed the main elements of that new section below.

Risk-based approach to monitoring

70. The OfS is not proposing systematically to assess the compliance of each relevant students’ union with each of its free speech duties on a scheduled cyclical basis. Instead, we are proposing to take a risk-based and targeted approach to monitoring. This reflects our established regulatory approach.
71. The key elements of our proposed approach to general monitoring of relevant students’ unions are as follows:
    1. We will use a range of sources of information which may include interactions with students’ unions, ‘reportable events’²¹ about free speech matters from providers, 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.
    2. The OfS may also use input from students – this may be insights from surveys, complaints raised with the Office of the Independent Adjudicator (OIA – the higher education complaints handling body), or information that we have sought from individual students.
    3. An enduring information reporting requirement on relevant students’ unions. This will require each relevant students’ union 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. In interpreting ‘the reasonable judgement of the OfS’, 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. We have set out further details of this proposal in the ‘Why are we proposing this?’ section below.
72. We propose that, as a result of information that we receive through our general monitoring, we may decide to undertake further activity to help us 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. We may decide to engage with a relevant students’ union to seek further information. We 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 us with specific information. Or it may include an enduring element which requires the relevant students’ unions to inform us when they propose to take, or take, particular actions. We propose to set out any such requirement in a notice to the relevant students’ union. The relevant students’ union would then be required to provide us with the information at the time, and in the form and manner, specified in the notice.
73. We propose that we may also decide to investigate a relevant students’ union. In deciding whether to investigate a relevant students’ union, we propose that we would have regard to the matters referred to in paragraph 95 below. An investigation may include a requirement for the relevant students’ union to provide us with specified information at specified times.

Proposed interventions

74. Under our proposals, the OfS may intervene where we consider 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.
75. We are proposing the following possible interventions:

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.

76. We are proposing that, when deciding whether and how to intervene:
    1. The OfS must have regard to its general duties under section 2 of HERA. The OfS’s general functions relating to the promotion of freedom of speech and academic freedom, under section 69A of HERA, will also be relevant.
    2. The OfS will also consider a range of factors. These may include the intervention factors in paragraph 167 of the 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, we 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.
77. Under our proposals, the primary purpose of intervening is to ensure that a relevant students’ union complies with its free speech duties. The approach that we take will depend on the features of an individual case. For example, we may decide to impose a monetary penalty where we consider that non-compliance is particularly serious, without having first sought a voluntary undertaking. Alternatively, we may seek a voluntary undertaking whilst also imposing a monetary penalty.

Monetary penalties

78. The OfS will be 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.²² Therefore, we are not consulting on whether we should have, or should exercise, that power.
79. The Secretary of State will 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.
80. We have set out, in paragraph 76 above, other matters relevant to our consideration of when and how to intervene. This includes our consideration of whether to impose a monetary penalty.
81. In the proposed new section of the regulatory framework (see Annex B), we have also set out the processes that we must follow if we are minded to impose a monetary penalty and the appeals process to the First Tier Tribunal. In HERA as amended by the Act, these matters will be set out in schedule 3.²³ Therefore, we are not consulting on these matters.
82. In Proposal D, we have set out how we propose to determine the amount of a monetary penalty.

[20] See HERA section 69B(1).

[21] A reportable event is defined in paragraph 494 of the regulatory framework. Broadly, it is a requirement for registered providers to inform us about any events or matters that could negatively affect their: eligibility for registration; ability to comply with the conditions of registration; or (if applicable) eligibility for degree awarding powers or university title.

[22] See HERA 69B(2).

[23] See HERA Section 69B paragraph (5).

Risk-based approach to monitoring

83. The OfS takes a risk-based approach to the regulation of providers. Everything that we do is designed to mitigate the risk that our four primary regulatory objectives are not met. Those objectives are that all students, from all backgrounds, and with the ability and desire to undertake higher education:
    1. are supported to access, succeed in, and progress from, higher education;
    2. receive a high quality academic experience, and their interests are protected while they study or in the event of provider, campus or course closure;
    3. are able to progress into employment or further study, and their qualifications hold their value over time;
    4. receive value for money.
84. Those regulatory objectives apply also to our functions of monitoring relevant students’ unions on free speech matters. 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.
85. In our view, it is appropriate to regulate relevant students’ unions in proportion to the regulatory risk that they pose, rather than other matters such as their legal form, their size or the type of provider to which they relate where these factors are not relevant to regulatory risk. In this context, the regulatory risk posed by a relevant students’ union means the risk of its failing to comply with at least one of its free speech duties.
86. Our proposed risk-based approach allows us to focus attention in the areas where it is needed most, to secure free speech for students, staff and visiting speakers. Our proposed approach to monitoring is therefore designed to indicate to us where further engagement or investigation might be necessary before we decide whether a relevant students’ union is failing, or has failed, to comply with any of its free speech duties. Our proposed approach provides for the imposition of information reporting requirements on relevant students’ unions. Section 69B(8) of HERA will give us the power to impose such requirements.
87. Our proposed risk-based approach is also designed to minimise regulatory burden on relevant students’ unions that are complying with their free speech duties. Our regulatory attention, and regulatory burden, will be focused on relevant students’ unions that pose the greatest regulatory risk of non-compliance with their free speech duties.
88. Taking a risk-based approach means that we will need to set our approach to risk. Adopting a low-risk approach might mean that we follow up on every case where there is any evidence of non-compliance with the free speech duties. A high-risk approach might mean that we follow up on cases only where there is strong evidence suggesting non-compliance that has resulted in significant regulatory harm. In practice, we are likely to set our approach between those two examples.
89. We have considered whether to take a different approach to monitoring – for example, to undertake scheduled reviews of relevant students’ unions, on a cyclical basis. However, we consider that such an approach would impose unnecessary regulatory burden on relevant students’ unions that pose little regulatory risk, because they are complying with their free speech duties. Such an approach is also unlikely to be the best use of OfS resources given the number of relevant students’ unions that we expect to regulate. It may also provide little regulatory incentive for relevant students’ unions to comply with their free speech duties on an ongoing basis, in between scheduled reviews.

Our proposed enduring information reporting requirement

90. Our proposed enduring information reporting requirement for relevant students’ unions would apply to all relevant students’ unions. We consider that this supports our risk-based approach. The Act requires relevant students’ unions to comply with their free speech duties. They should therefore, as a matter of course, be monitoring their own compliance with those duties. In our view, our proposed enduring information reporting requirement does not impose any additional information-gathering burden on relevant students’ unions. Section 69B(8) of HERA will give us the power to impose this requirement.
91. We propose that this enduring information reporting requirement will be set out in a notice that we issue to each relevant students’ union on an annual basis. We propose that the students’ union must provide us with the information at the time, and in the form and manner, specified in the notice.
92. It is important that matters are reported to the OfS in a timely way. We propose that, under the enduring information reporting requirement, a relevant students’ union will be required to report an event or matter within ten days of the date that it is identified or, if that is not possible due to exceptional circumstances beyond the control of the students’ union, as soon as reasonably practicable thereafter and without undue delay. This time frame would be set out in the proposed notice we would issue to each relevant students’ union.
93. We also propose that, where the relevant students’ union is planning or can foresee an event or matter that could affect its ability to comply, the event or matter should be reported within ten days of its being first planned or foreseen by the relevant students’ union or, if that is not possible due to exceptional circumstances beyond the control of the students’ union, as soon as reasonably practicable thereafter and without undue delay. This time frame would be set out in the proposed notice we would issue to each relevant students’ union.

Proposed interventions and monetary penalties

94. We have proposed the following interventions:
    1. Seeking a voluntary undertaking from a relevant students’ union. We may use this to mitigate an increased risk of non-compliance by a relevant students’ union. We may also seek an undertaking as an alternative to imposing a monetary penalty, in circumstances where it appears to us that a relevant students’ union is failing, or has failed, to comply with any of its free speech duties. We may also seek a voluntary undertaking from a students’ union, in addition to imposing a monetary penalty. An undertaking would, by its nature, require the agreement of the relevant students’ union.
    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. The Secretary of State will set out in regulations the matters to which the OfS must have regard in determining a monetary penalty and the penalty amount.
95. We are proposing that, when deciding when and how to intervene, we may consider the intervention factors in paragraph 167 of the regulatory framework.²⁴ Those factors refer to higher education providers and our regulatory requirements of those providers. Therefore, in considering the intervention factors in this context, we will interpret them to refer to relevant students’ unions and to reflect the character of their free speech duties. This means that, for example, we 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 factors will be relevant in every circumstance, and the OfS will consider the relevant factors in the round when making its decision.
96. We considered whether to propose a different or amended set of intervention factors in relation to students’ unions. However, we consider that the existing intervention factors cover a range of pertinent issues. In many cases, a free speech matter may concern a registered provider’s compliance with its conditions of registration and its students’ union’s compliance with its free speech duties. In those circumstances, it would be helpful for there to be consistency in the intervention factors that we consider in relation to each party in determining our regulatory approach.
97. Under section 2 of HERA in performing our functions we must have regard to our general duties. Those functions include our monitoring functions in relation to students’ unions on free speech matters. Our general functions relating to the promotion of freedom of speech and academic freedom, under section 69A of HERA, will also be relevant.
98. The primary purpose of intervening is to ensure that a relevant students’ union complies with its free speech duties. The approach that we take to intervention will depend upon the circumstances of the individual case. This flexibility underpins our risk-based approach. We propose that whilst we may use our interventions in an escalatory way, we will not always do so. For example, we may decide to impose a monetary penalty where we consider that non-compliance is particularly serious, without having first sought a voluntary undertaking.  

[24] See Securing student success: Regulatory framework for higher education in England.