Proposal 2: Guidance on compliance with the free speech duties

Key points

• The free speech duties require providers to take reasonably practicable steps to secure freedom of speech within the law (A1), to maintain a code of practice (A2) and to promote the importance of freedom of speech and academic freedom in the provision of higher education (A3).
• We are not seeking feedback on introducing the new condition or its wording because we are required by law to introduce it and its wording is the same as in legislation.
• We have already consulted on guidance to the A1 and A2 duties when consulting on Regulatory advice 24.¹⁴ We will not be re-consulting on that guidance.
• While we are not consulting on the three-step framework set out in our published guidance on freedom of speech, we propose to use this in assessing providers against E12 in relation to the ‘secure’ duty.¹⁵
• We would assess providers against E12 in relation to the ‘code’ duty by considering whether they maintain a code of practice that covers the required matters and take reasonably practicable steps to secure compliance with their code.
• We would assess providers against E12 in relation to the ‘promote’ duty by considering whether and how providers have promoted the importance of freedom of speech and academic freedom in higher education.
• Information from the OfS free speech complaints scheme may inform our assessment of E12 compliance, but a complaints outcome will not, by itself, determine regulatory action in relation to E12.
• Because condition E12 requires providers to comply with duties A1, A2 and A3, we propose that its guidance explains that the descriptions and illustrations in Annex D: Free speech guidance (see Proposal 3) are non-exhaustive examples of behaviour suggesting compliance or non-compliance with E12.

Assessment

23. We have a statutory duty to introduce condition E12 as an ongoing condition of registration. The condition itself will require the governing body of each registered provider to comply with its duties under sections A1, A2 and A3 of HERA.¹⁶ The guidance that we are proposing to accompany the condition sets out how we would expect to assess, monitor and, where necessary, enforce compliance with those duties.
24. Our approach aims to make clear that E12 is not only about whether a provider has relevant policies in place. It is about whether the governing body complies with the statutory duties in practice. These include:

• • the duty to take steps to secure freedom of speech
  • the duty to maintain, and secure compliance with, a code of practice
  • the duty to promote the importance of freedom of speech and academic freedom.

25. For assessing ongoing compliance with condition E12, the OfS would use its general risk-based approach to monitoring and intervention.¹⁷ Where the OfS identifies increased risk, it may seek further information to understand the provider context and specific circumstances of any potential risk factor.
    1. For the A1 ‘secure’ duty, we would use the three-step framework set out in our existing free speech guidance, Annex D (currently Regulatory advice 24¹⁸) to assess compliance with the condition. In our assessment we will also consider how a provider has made decisions that may be relevant to our risk assessment of its ongoing compliance with E12 (and/or condition E11.2).
    2. For the A2 ‘code’ duty, we would consider whether the provider, with a view to facilitating compliance with its A1 duty:
       1. maintains a code of practice that covers the required content
       2. takes reasonably practicable steps secure compliance with that code
       3. brings it to the attention of its students at least once a year.
    3. For the A3 ‘promote’ duty, we would consider the actions a provider has taken to promote the importance of freedom of speech within the law and academic freedom for academic staff in the provision of higher education. When assessing compliance, the OfS may look at evidence of the steps a provider has taken to promote the importance of both principles. We would also look at other information we already have or that we have sought, to decide whether the provider is meeting the duty, has breached it or is at risk of breaching it.

26. The OfS free speech complaints scheme will be one source of regulatory information that we propose to use as a part of our general monitoring and assessment of compliance with the conditions of registration. Our proposed E12 guidance explains at paragraphs 18 to 22 how we propose to use information from the complaints scheme when we assess whether a provider is complying with condition E12.
27. We have included this guidance here because a complaint may contain information about a provider’s policies, decisions, actions or failures to act that would help us decide whether it has complied with its duties. Providers should understand that information from the complaints scheme may be relevant to any general monitoring and assessment of compliance with the free speech conditions (E11 and E12), as well as any other condition of registration. Where appropriate, we propose to use information from the complaints scheme to inform our view of risk across all conditions of registration. This does not differ from our approach to other forms of intelligence we receive. However, it is important to note that a justified or partly justified free speech complaint would be considered indicative of a breach of condition E12.
28. We are proposing this approach to be transparent with providers on how we may use information received via the complaints scheme in our regulatory function. The proposed approach maintains a clear separation between the complaints function and the regulatory function, while allowing relevant complaints information to inform our assessment of risk and compliance across all conditions of registration. We consider this is an appropriate and proportionate stance that allows us to take a risk-based approach. We expect our guidance on this to help providers understand how complaints outcomes can contribute to regulatory information without replacing the OfS’s wider assessment of compliance, particularly with regard to condition E12.

Notes

[14] See Regulatory advice 24: Guidance related to freedom of speech - Office for Students.

[15] See Section 2: Framework for assessment – Regulatory advice 24: Guidance related to freedom of speech - Office for Students.

[16] 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.

[17] See Regulatory advice 15: Monitoring and intervention - Office for Students.

[18] See Regulatory advice 24: Guidance related to freedom of speech - Office for Students.