Securing student success: Regulatory framework for higher education in England

‘Governing documents’ means the documents adopted, or that should have been adopted by the provider, that describe any of the provider’s objectives or values, its powers, who has a role in decision making within the provider, how the provider takes decisions about how to exercise its functions, or how it monitors their exercise. This test will be broadly rather than narrowly applied. Where a document in part deals with any such matters, and in part with other matters, the whole of the document is a ‘governing document’.

Depending on the legal form of the provider its ‘governing documents’ may include a Royal Charter, Statutes and Ordinances, articles of association, or Instruments of Government and/or a trust deed or deeds. They are also likely to include documents such as schemes of delegation, terms of reference of committees to which significant functions have been delegated, the provider’s policies on matters such as management of conflicts of interest, support for freedom of speech or academic freedom, and/or member/shareholder agreements where these may influence the operation of the provider.

‘Uphold the public interest governance principles’ means as a minimum to reflect them, and where a public interest governance principle requires an active step to be taken, to provide a suitable framework to ensure that that step is identified, defined, taken, and can be shown to have been taken.

‘The public interest governance principles that are applicable to the provider’ means the principles identified as applicable in Annex B.

‘Governing body’ (used below) has the meaning given by section 85 of HERA.

In judging whether a provider’s governing documents uphold the public interest governance principles that are applicable to the provider, material that the OfS may consider includes:

During the initial registration process the OfS will carry out an assessment of the extent to which a provider’s governing documents uphold the public interest governance principles. A provider is required to submit its governing documents and a self-assessment of how those documents uphold the public interest governance principles.

If a provider follows a governance code, the provider’s self-assessment may point to its use of the code as evidence that its governing documents uphold the relevant public interest governance principles. It is the provider’s responsibility to demonstrate how use of its chosen code ensures that its governing documents uphold the public interest governance principles. Where the provider’s chosen code does not deliver all of the principles, the provider will need to demonstrate separately how its governing documents uphold the remaining principles.

Alternatively, a provider may wish to demonstrate that its governing documents uphold the public interest governance principles without the adoption of a particular code of governance.

The following are non-exhaustive examples of behaviours that may indicate compliance with this condition. The provider:

• notifies the OfS in advance of any changes to its governing documents that might affect the public interest governance principles, and submits the revised documents
• gives timely notification to the OfS of relevant changes in its governing documents.

The following is a non-exhaustive example of behaviour that may indicate non-compliance with this condition:

• the provider makes changes to its governing documents that affect the public interest governance principles without submitting an updated version to the OfS as soon as reasonably practicable following the change.