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

Relevant legislation

112. Under section 67A of HERA, we have a statutory power to publish notices, decisions and reports given or made in the performance of our functions; this includes publishing decisions to conduct or terminate an investigation.
113. Schedule 6A of HERA, which is inserted by the Act, will also state, at paragraph 13:

114. We expect these provisions to come into force on 1 August 2024.

Our proposals

115. We have previously published guidance for providers on the approach we will take to the publication of information about providers and connected individuals. This guidance is set out in Regulatory advice 21: Publication of information. This guidance was published following publication consultations on our proposed approach. ³⁰
116. The guidance sets out how we normally use our powers in sections 67A to 67C of HERA and contains our general policy for the publication of information about providers and individuals connected with them. It sets out the information that we would normally expect to publish and the information that we would not normally expect to publish. It also sets out the factors to which we will have regard in making a publication decision.
117. We are now proposing to amend Regulatory advice 21 to set out the information that we would normally expect to publish, and the information that we would not normally expect to publish, in relation to our regulation of relevant students’ unions on free speech matters.
118. In our consultation on the free speech complaints scheme, we are also proposing to amend Regulatory advice 21 to set out the information that we would normally expect to publish, and the information that we would not normally expect to publish, in relation to the OfS free speech complaints scheme. Those proposals include the publication of information about students’ unions that is not covered in the table below.³¹

Information we would normally expect to publish

119. We propose that items 4a and 7a in the table below are added to ‘Table 1: Information the OfS would normally expect to publish’, in Regulatory advice 21. We also propose to amend existing items 4 and 8 in Table 1. Our proposed additions and amendments are set out in red font in the table below.

Factors to which we will have regard in making publication decisions

120. In making publication decisions about the matters referred to in paragraph 119 above, we propose to consider the ‘Factors to which we will have regard in making publication decisions’ in Regulatory advice 21. In doing so, and where the context of the publication decision so requires, we propose to interpret the factors in Regulatory advice 21 to refer to relevant students’ unions.

Engagement with providers, constituent institutions, relevant students’ unions and connected individuals

121. We propose that the nature of our engagement in relation to a publication decision, on the matters referred to in this Proposal F, will depend on the particular circumstances of the case. We propose that we will seek representations from relevant students’ union before making a final decision to publish information where we consider it is appropriate to do so and in the manner we consider appropriate. This reflects the existing approach set out in paragraph 15 of Regulatory advice 21.
122. We also propose that we would expect to seek the views of a relevant students’ union, and an individual connected to that relevant students’ union where relevant, before making a final decision to publish information about an investigation – this is the subject matter covered in new proposed row 4a of Table 1 in Regulatory advice 21 (and set out above, with our proposed amendment).

Other consequential amendments

123. We propose to make further minor, consequential amendments to Regulatory advice 21, to reflect the fact that publication decisions may relate to information about relevant students’ unions, and persons connected to them, and in relation to the OfS’s regulation of relevant students’ unions on free speech matters.

[29] HERA Sch. 6A 12(1), as amended by the Act, says: ‘(1)This paragraph applies if the Secretary of State requests the OfS to—

(a)conduct a review of the scheme or its operation (or any aspect of either of those matters), and

(b)report the results of the review to the Secretary of State.’

[30] See Regulatory advice 21: Publication of information.

[31]See Free speech complaints consultation.  

[32] We are consulting separately on our proposed new free speech complaints scheme. In Proposal P in that consultation, we have proposed an amendment to existing item 4 to state that it does not include matters relating to our review of complaints under the proposed free speech complaints scheme.

[33] We are consulting separately on our proposed new free speech complaints scheme. In Proposal P in that consultation, have proposed an amendment to existing item 8 in relation to the publication of information in relation to the conduct of an individual where this is relevant to the reasons for finding a free speech complaint to be partly justified or justified.

124. The law gives the OfS powers to publish notices, decisions and reports given or made in the performance of our functions.³⁴
125. Regulatory advice 21 sets out the framework within which we currently make decisions about publication matters. Our policy states that, when making a publication decision, we will have regard to the factors set out in that policy and will consider them in the manner we consider to be appropriate for an individual case. The factors directly incorporate the language used in section 67A of HERA. The factors also include a final factor, which reflects the other legal requirements placed on us by HERA and other legislation. This includes the requirement for us to have regard to our general duties under section 2 of HERA. Our policy also makes clear that we may have regard to other relevant factors in making publication decisions, and those will depend on the particular circumstances of a case.
126. We explained our reasons for adopting the policy set out in Regulatory advice 21, in our analysis of responses and decision document to our public consultation on the policy.³⁵ Those reasons also underpin our proposal to extend the general policy to matters referred to in this proposal. The inclusion of decision-making factors, and the illustrative considerations for and against publication that sit underneath them, give us a level of flexibility that we consider appropriate. We consider that it would be inappropriate to introduce a rigid overarching approach to publication since each case should be determined on its own particular circumstances. We recognise that this may make our decision-making process more complex and reduce the certainty that relevant students’ unions have about whether information relevant to them will be published. However, we consider that a more rigid or rules-based system would fetter our discretion and be inconsistent with our public law obligations.
127. We considered whether it is necessary to make changes to our published policy on publication of information and whether we should instead make publication decisions on the matters referred to in this proposal, on an individual basis without reference to a policy. Whilst we consider that would be reasonable, we also consider that there are benefits to increased transparency about the types of information that we are likely to publish or not to publish, and the factors that we will take into account in reaching individual decisions. Our proposals set out how we propose to interpret those factors, to refer to relevant students’ unions where the context of the publication decision so requires.
128. In our proposals, we have set out matters that we propose ‘we will normally publish’. We considered whether our starting point should be that ‘we would not normally’ publish those matters. However, we consider that it is in the public interest for the OfS to be transparent about its regulatory and other decisions and its reasons for making them. In our view, visibility creates confidence in the regulatory system. We consider this to be in the interests of the public, of current and potential students, and of other providers and relevant students’ unions that have satisfied the OfS’s regulatory requirements and complied with their free speech duties. Identifying areas where bodies have not complied with their free speech duties may also support compliance with those duties by others.

[34] See section 67A of HERA.

[35] See Consultation on publication of information about higher education providers: Analysis of responses and decision