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

99. The Act will amend HERA to give the OfS the power to impose a monetary penalty on a relevant students’ union if it appears to the OfS that the students’ union is failing or has failed to comply with any of its free speech duties.²⁵
100. A monetary penalty is defined as ‘a requirement to pay the OfS a penalty of an amount determined by the OfS in accordance with regulations made by the Secretary of State’. 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 on a relevant students’ union and the penalty amount.
101. The OfS is already empowered to impose monetary penalties on providers in relation to breaches of their ongoing conditions of registration. 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 on a provider, and the penalty amount.²⁶ The relevant provisions are set out in regulation 4 of those regulations:

102. We have published guidance (Regulatory advice 19) for providers on our approach to the calculation of a monetary penalty.²⁷ We published this guidance following a public consultation on our proposed approach.
103. The regulations for relevant students’ unions may set out factors which, in our judgement, when taken together are materially the same as those referred to in paragraph 101 above. If in our judgement they do so, we propose to apply the five-step approach set out in Regulatory advice 19, when calculating monetary penalties for relevant students’ unions. In doing so, we would interpret that approach to refer to relevant students’ unions, and in a way that reflects the character of their free speech duties. For example, we may consider the impact of a breach of free speech duties on visiting speakers, where that is relevant.
104. Our proposals are contingent on regulations to be laid by the Secretary of State. The regulations on monetary penalties for relevant students’ unions may set out factors which, in our judgement, when taken together are materially different from the factors referred to in paragraph 101 above. In that event, we would propose to calculate monetary penalties on a case-by-case basis, having regard to the factors set out in the new regulations. In that event, we may also consult further on a general approach to calculating monetary penalties for relevant students’ unions.

[25] See HERA section 69B paragraph (2).

[26] See The Higher Education (Monetary Penalties and Refusal to Renew an Access and Participation Plan) (England) Regulations 2019.

[27] 'Regulatory advice 19: The OfS's approach to determining the amount of a monetary penalty'.

105. Our power to impose monetary penalties will be set out in HERA. Our ability to impose, and the imposition of, monetary penalties are likely to be important tools to incentivise compliance with the free speech duties from all relevant students’ unions. We will have the power to impose a monetary penalty from 1 August 2024, subject to the relevant provisions of HERA coming into force at that time.
106. We could decide to calculate monetary penalties on a case-by-case basis under the new regulations. In our view, that would be reasonable. However, we consider that providing more information about how, conditional on the regulations, we will calculate monetary penalties, improves transparency. In conditionally proposing to follow the approach that we have set out in Regulatory advice 19, we are providing clarity to relevant students’ unions about our approach.
107. The approach set out in Regulatory advice 19 was subject to public consultation. We have published our analysis of the responses to that consultation and the reasons for our decision to adopt the approach set out in Regulatory advice 19.²⁸
108. Assuming that the new regulations set out factors that are, in our judgment, when taken together materially the same as those mentioned in paragraph 101, we consider that this approach would also be appropriate for calculating monetary penalties for relevant students’ unions. A principles-based approach will allow us to take account of the specific circumstances of the relevant students’ union and of its non-compliance. This will allow us to impose a monetary penalty which is proportionate to those circumstances. We have considered whether we should propose a more rules-based approach. For example, we considered whether we should propose a banded scale of monetary penalties by reference to the severity of the non-compliance, or fixed rates of monetary penalties, for particular types of non-compliance, subject to any maximum penalty to be set out in the regulations. However, we consider that detailed rules would introduce unhelpful complexity and could not properly accommodate the specific circumstances of the relevant students’ union and of its non-compliance.
109. We considered whether to defer any consideration of a general approach to the calculation of monetary penalties until after the relevant regulations have been laid. However, we are mindful of the regulatory burden that a further consultation may impose on the sector. We are also mindful of the benefits of providing transparency of our proposed approach, well in advance of the implementation of that approach. Given that we are proposing an approach that is based on published guidance, we considered it appropriate to include this proposal in this consultation.

[28] Analysis of responses to the consultation.