Proposal 1: Guidance on ‘governing documents’ and ‘adequate and effective management and governance arrangements’

Key points

• Our new condition E11 relates to a provider’s governing documents and its management and governance arrangements for securing compliance with the free speech duties (at sections A1, A2 and A3 of HERA).⁹
• Condition E11 will apply when a provider registers and while it remains registered (it is an ‘initial’ and ‘ongoing’ condition).
• We are seeking feedback on the proposed guidance for condition E11, which explains:
  • the requirements of the condition
  • compliant and non-compliant behaviours
  • how we will monitor and assess provider compliance with the condition.
• We are seeking feedback on our proposed guidance on what it means for governing documents to be ‘consistent with compliance’.
• We are seeking feedback on our proposed guidance that, for a provider’s management and governance arrangements to be ‘adequate and effective’, the provider should have the capacity and resources to deliver compliance in practice.
• We are not seeking feedback on introducing the new condition because we are required by law to introduce it and its wording is the same as in legislation.
• We are not seeking feedback on the definition of ‘governing documents’ for the purposes of E11.1 as this is a statutory term (the definition of which is aligned with caselaw).

Explanation

1. We will have a statutory duty to introduce new mandatory conditions of registration under HERA. The first of these (condition E11) will cover two areas: a provider’s governing documents and its management and governance arrangements. E11.1 focuses on a provider’s governing documents. E11.2 focuses on a provider’s management and governance arrangements.
2. We have intentionally aligned the wording in the condition with the language in the statute/legislation.¹⁰ We are not seeking views on the specific wording of the condition requirements as part of this consultation because we must introduce them by law. We think this is the least burdensome approach to introducing the new mandatory conditions because it does not depart from what is required by statute and it does not introduce any additional requirements.
3. In light of the judgment in the University of Sussex v the Office for Students, we have adopted a definition of ‘governing documents’ to mean ‘governing documents that have some governing effect, which goes to the constitution or governance of the higher education provider’.¹¹ We are not consulting on this definition of governing documents as part of this consultation because this is a matter of statutory interpretation.
4. In the guidance, we explain our approach to assessing compliance with condition E11 at registration and as an ongoing condition of registration. The guidance explains:

• • what providers must do
  • how providers can meet the requirements
  • how we will check and monitor compliance.

It also explains what action we may take if a provider does not comply. We are seeking views on this guidance as part of this consultation.

5. The condition will apply to providers that apply to register after 1 April 2027 and to all registered providers from that date. Introducing the new initial condition means we will also have to make changes to Regulatory notice 7 to reflect our proposed guidance. Those changes are set out at Annex D and Annex E.
6. We recognise the diversity in providers’ sizes, shapes, legal structures, kinds of provision and risk profiles. We propose, therefore, that the way we assess all parts of the new condition should take this into account.
7. In the case of governing documents, we recognise that what is consistent with compliance may look different for different providers. We therefore do not propose that all providers should adopt the same kinds of governing documents or a single form of wording. Instead, we would ask providers to consider their governing documents in their own contexts, while being clear that the documents must not prevent compliance with the relevant statutory duties.
8. In the same way, ‘adequate and effective management and governance arrangements’ may look different from provider to provider. For instance, it is likely that a smaller provider with a simple organisational model would have simpler management and governance arrangements than a larger, more complex provider.

Governing documents

9. E11.1 requires that a provider’s governing documents are ‘consistent with compliance’ by its governing body with its free speech duties. We propose that this means the documents must not include anything that prevents the provider from meeting those duties. In the guidance, we explain what this means and provide examples that illustrate how elements of a governing document might prevent compliance with the duties.
10. Our proposed guidance explains how we will assess compliance with the condition at registration. We propose to focus our review on a provider’s foundational documents and the documents outlined in initial condition E7 (as described in paragraph 7 of the guidance). In our assessment, we will check whether anything in that set of governing documents prevents compliance with its free speech duties. In the event that a provider has a governing document that does not fall within that set, it will be required to check that document for compliance and to notify us of any concerns (as detailed in our proposed amendments to Regulatory notice 7 in Annex D and Annex E of this document). We have set out an adjusted approach for further education colleges not seeking DAPs above (page 4) and in the guidance. Our approach aims to avoid unnecessary duplication of assessment and to limit the burden on applicants and registered providers.
11. For monitoring and assessing compliance after a provider has registered with us, we propose to adopt our general risk-based approach to monitoring and intervention as specified in the regulatory framework. In the guidance, we include a non-exhaustive list of information we may review as part of our assessment and also note that we may request further information from a provider to understand the full context. We think this approach is the least burdensome on providers because they are familiar with this practice and it is in line with how we monitor and assess compliance across all other conditions of registration. There is further information about our approach in the proposed guidance text in Annex A.
12. Our proposed guidance explains that all registered providers should check whether their governing documents are consistent with compliance with their free speech duties before the condition comes into effect on 1 April 2027. In doing so, the provider should consider its specific context, including any possible interaction with other regulatory and legal requirements (if applicable). Given the diversity of providers delivering higher education, we expect compliance to look different across providers and that they will know how their contexts impact what compliance looks like. To help providers in their review, our guidance proposes some key questions they might consider. We also identify specific behaviours that could indicate compliance and non-compliance with the condition.

Adequate and effective management and governance arrangements

13. E11.2 requires a provider to have adequate and effective management and governance arrangements to secure compliance with the free speech duties. In our proposed guidance, we set out at paragraph 21 that an arrangement is ‘adequate’ if it can achieve compliance, and ‘effective’ if it delivers compliance in practice. We explain that we would expect that for a provider’s management and governance arrangements to be both adequate and effective, it should have the capacity and resources to deliver its compliance in practice. In our proposed guidance we set out at paragraph 24 a non-exhaustive list of things that ‘capacity and resources’ includes for the purposes of this condition.
14. Providers are usually best placed to understand their specific context and so will know what shape their arrangements should take to secure compliance with their duties. In our proposed guidance, we list at paragraph 26 the things that we would expect a provider to consider when it determines whether its arrangements are adequate and effective, including (for instance) in relation to understanding of the duties, training, escalation and the identification of risk. Our proposed guidance also recognises that risks may change over time, particularly as a provider’s activities, policies and procedures develop. Providers should consider how to appropriately adapt and balance their capacity and resources across the organisation as risks change and new risks emerge.
15. In our proposed guidance, we explain that we require a provider to submit its free speech code of practice (‘the code’) at registration. Our assessment of the code in relation to E11.2 will focus on whether it meets all the legal requirements, but it will also provide insight into a provider’s management and governance arrangements for securing compliance with the duties. We believe this is a less burdensome approach than requiring a provider to submit another document that would duplicate information found in the code.
16. We also understand that the code may not be an exhaustive document of all the arrangements a provider might have in place to secure compliance with its duties. To get a holistic view of a provider’s arrangements, we also propose to assess whether the arrangements are adequate and effective by using information a provider is already required to submit in relation to conditions E7 and D. We may require these providers to complete a self-assessment where management and governance arrangements for the purpose of E11.2 are not clearly set out in these documents. Our assessment may also consider other relevant information that is submitted as part of the registration application or that we already hold, such as third-party notifications, the outcome of any OfS quality assessment, data submitted by the provider, and information received from other public bodies. We propose this approach to reduce the burden on providers wishing to register and to ensure that timelines for registration are not extended.
17. Earlier this year, we disapplied a number of conditions of registration in the areas of financial health, and management and governance for further education colleges that do not have or are not seeking DAPs.¹²
18. We do not propose to reapply those conditions to regulate compliance with free speech duties. Instead, we propose a lower-burden approach. These providers would submit all the governing documents they hold that fall within the defined set of governing documents (see paragraph 7 of the condition E11 proposed guidance). These providers would also submit a self-assessment of their management and governance arrangements as part of a registration application using the template at Annex G. Where condition D on financial sustainability does not apply, these providers would use the template at Annex F to tell us whether they have been subject to any Department for Education intervention about financial health, financial management or other controls.
19. For ongoing compliance, we explain in the guidance that we propose to adopt our general approach to monitoring and intervention of compliance with this condition (as we do with all other conditions of registration).¹³ Where we identify increased risk, we will engage with the provider over our concerns and may seek further information to understand the full context of a provider’s compliance with E11. This also includes reviewing any relevant information that we hold, including (but not limited to) a provider’s financial information, any third-party notifications and reportable events, any free speech complaints or any data submitted to the us as part of monitoring of any other condition of registration.
20. Similar to our proposal above (paragraph 18) where a provider is not required to comply with condition D, we explain in the guidance that we may need to request financial information from the provider if we are unable to get the information via other means. We will aim to do so in the least burdensome way, including by requesting this information directly from Department for Education (DfE) where appropriate.
21. We explain in the guidance that providers should be able to demonstrate what arrangements they have in place to secure compliance with their duties. Because of this, providers should consider how best to record what management and governance arrangements they have in place. We will not routinely request sight of this record but instead suggest it as a matter of good practice.
22. We think this approach is proportionate because it focuses our assessment on the information most closely linked to the arrangements a provider has in place to secure compliance with the free speech duties. This approach aims to help us identify significant risks to, or gaps in, compliance without asking providers to submit every policy or operational document that may relate to freedom of speech. As such we think this approach is aligned with how we regulate all other conditions of registration.

Notes

[8] We have published the draft text of condition E11 in Annex A. Sections A1, A2, and A3 of the Higher Education and Research Act 2017 (HERA) describe the duties to protect freedom of speech. See Higher Education and Research Act 2017 - GOV.UK.

[9] See Higher Education and Research Act 2017 - GOV.UK - Section A1; Higher Education and Research Act 2017 - GOV.UK - Section A2; and Higher Education and Research Act 2017 - GOV.UK - Section A3.

[10] See Higher Education (Freedom of Speech) Act 2023- GOV.UK - Section 6.

[11] See The University of Sussex -v- The Office for Students - Courts and Tribunals Judiciary.

[12] See OfS simplifies its requirements for further education colleges to minimise regulatory burden - Office for Students.

[13] See Regulatory advice 15: Monitoring and intervention.