(b) the need for excluding from publication, so far as practicable, any information which relates to the affairs of a particular body or individual, where publication of that information would or might, in the opinion of the OfS, seriously and prejudicially affect the interests of that body or individual, and

(6) For the purposes of this section and sections 67B and 67C—

(a) a reference to a decision includes a reference to the reasons for it, and

(b) any decision made in the course of exercising, or for the purposes of enabling the OfS to exercise, any of the OfS’s functions (including making any other decision) is made “in the performance of its functions”.

67B

(1) This section applies where under section 67A(1) the OfS publishes a decision to conduct an investigation.

(2) If the publication identifies a higher education provider or other body or individual whose activities are being, or to be, investigated, and—

(a) the OfS terminates the investigation without making any finding, or

(b) the findings of the investigation, so far as they relate to the higher education provider, body or individual, do not result in the OfS taking any further action,

the OfS must publish a notice stating that fact.

(3) Section 67C does not apply to the publication of the decision to conduct the investigation to the extent that it includes information other than—

(a) a statement of the OfS’s decision to conduct the investigation,

(b) a summary of the matter being, or to be, investigated, and

(c) a reference to the identity of any higher education provider or other body or individual whose activities are being, or to be, investigated.

(4) See section 67A(6) for the meaning of references to decisions.

Defamation

67C

(1) For the purposes of the law of defamation, publication by the OfS of any notice, decision or report given or made in the performance of its functions is privileged unless the publication is shown to have been made with malice.

This is subject to section 67B.

(2) See section 67A(6) for the meaning of references to decisions.

Section 86: consequential amendments

Other amendments relating to financial support

Higher education corporations in England

Functions of the OfS in relation to students’ unions

69B

(1) The OfS must monitor whether students’ unions to which sections A5 and A6 apply are complying with their duties under those sections.

(2) The OfS may impose a monetary penalty on a students’ union if it appears to the OfS that it is failing or has failed to comply with any of its duties under those sections.

(3) A “monetary penalty” is 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.

(4) The Secretary of State may by regulations make provision about matters to which the OfS must, or must not, have regard in exercising its power under subsection (2).

(5) Schedule 3 (monetary penalties: procedure etc) applies in relation to the imposition of a penalty on a students’ union under subsection (2), but as if—

(a) references to a registered higher education provider or the governing body of such a provider were references to the students’ union, and

(b) references to section 15 were references to subsection (2).

(6) The OfS must maintain a list of the students’ unions to which, according to the information held by the OfS, sections A5 and A6 apply.

(7) The OfS must make the list maintained under subsection (6) publicly available by such means as it considers appropriate.

(8) A students’ union to which sections A5 and A6 apply must provide the OfS, or a person nominated by the OfS, with such information for the purposes of the performance of the OfS’s functions under this section as the OfS may require it to provide.

(9) If a students’ union fails to comply with a requirement under subsection (8) and does not satisfy the OfS that it is unable to provide the information, the OfS may enforce the duty to comply with the requirement in civil proceedings for an injunction.

69D

(1) The OfS must monitor the overseas funding of registered higher education providers and their constituent institutions with a view to assessing the extent to which the funding presents a risk to the matters in subsection (2).

(2) The matters are—

(a) freedom of speech within the law, and

(b) the academic freedom of academic staff of registered higher education providers and their constituent institutions,

in the provision of higher education by registered higher education providers and their constituent institutions.

(3) The duty in subsection (1) includes a duty to consider, in a case where the OfS has found that a registered higher education provider or any constituent institution of a registered higher education provider is in breach of its duty under section A1, whether overseas funding was relevant to the breach.

(4) The information which the governing body of a registered higher education provider may be required to provide under the condition under section 8(1)(b), in relation to the function of the OfS under subsection (1), is—

(a) information as to relevant funding from a relevant overseas person, where the funding from that person exceeds the threshold in any period of 12 months specified by the OfS, and

(b) if the OfS considers it appropriate in any circumstances, such other information as the OfS may reasonably require.

(5) In this section “relevant funding” from a relevant overseas person, in relation to a registered higher education provider, means amounts which are received by the provider or a connected person—

(a) by way of endowment, gift or donation from the relevant overseas person,

(b) by way of research grant from the relevant overseas person,

(d) pursuant to an educational or commercial partnership with the relevant overseas person.

(6) In subsection (5) “connected person”, in relation to a registered higher education provider, means—

(a) the governing body of the provider,

(b) a constituent institution of the provider, or

(7) For the purposes of subsection (5), treat receipt of anything that is not money as receipt of an amount equal to the value of the thing to the recipient at the time of receipt.

(8) In this section “relevant overseas person” means—

(a) the government of an overseas country, other than a prescribed country,

(b) a body which is incorporated or registered in, or has its headquarters in, an overseas country other than a prescribed country, or

(c) an individual who is a politically exposed person in relation to an overseas country other than a prescribed country.

(9) In this section—

“overseas country” means any country or territory outside the United Kingdom, but not including the Channel Islands, the Isle of Man and any British overseas territory;

“politically exposed person” has the meaning given by regulation 35 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692);

“prescribed country” means a country or territory specified in regulations made by the Secretary of State.

(10) For the purposes of subsection (4)(a), “the threshold” means an amount specified in regulations made by the Secretary of State.

(11) Regulations under subsection (10) may include provision—

(a) as to how the amount specified is to be calculated;

(b) to treat amounts received from a person other than a relevant overseas person as received from the relevant overseas person.

69E

(1) The OfS must monitor the overseas funding of students’ unions at registered higher education providers that are eligible for financial support with a view to assessing the extent to which the funding presents a risk to the matter in subsection (2).

(2) The matter is freedom of speech within the law for—

(a) members of the students’ unions,

(b) students of the providers,

(d) staff and members of the providers and of their constituent institutions, and

(e) visiting speakers.

(3) The duty in subsection (1) includes a duty to consider, in a case where the OfS has found that a students’ union is in breach of its duty under section A5, whether overseas funding was relevant to the breach.

(4) For the purpose of the function of the OfS under subsection (1), a students’ union referred to in that subsection must provide to the OfS at such times, and in respect of such periods, as the OfS may reasonably request—

(a) information as to any amounts received from a relevant overseas person, where the amounts exceed the threshold in any period of 12 months specified by the OfS, and

(b) if the OfS considers it appropriate in any circumstances, such other information as the OfS may reasonably require.

(5) If a students’ union fails to comply with its duty under subsection (4), the OfS may enforce the duty in civil proceedings for an injunction.

(6) The following provisions of section 69D apply for the purposes of this section—

(a) subsection (7) (things other than money);

(b) subsections (8) and (9) (meaning of “relevant overseas person”);

PART A1 — Protection of Freedom of Speech

Duties of registered higher education providers

Duty to take steps to secure freedom of speech

A1

(1) The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (2).

(2) That objective is securing freedom of speech within the law for—

(a) staff of the provider,

(b) members of the provider,

(d) visiting speakers.

(3) The objective in subsection (2) includes securing that—

(a) the use of any premises of the provider is not denied to any individual or body on grounds specified in subsection (4), and

(b) the terms on which such premises are provided are not to any extent based on such grounds.

(4) The grounds referred to in subsection (3)(a) and (b) are—

(a) in relation to an individual, their ideas or opinions;

(b) in relation to a body, its policy or objectives or the ideas or opinions of any of its members.

(5) The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.

(6) In this Part, “academic freedom”, in relation to academic staff at a registered higher education provider, means their freedom within the law—

(a) to question and test received wisdom, and

(b) to put forward new ideas and controversial or unpopular opinions,

without placing themselves at risk of being adversely affected in any of the ways described in subsection (7).

(7) Those ways are—

(a) loss of their jobs or privileges at the provider;

(b) the likelihood of their securing promotion or different jobs at the provider being reduced.

(8) The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (9).

(9) That objective is securing that, where a person applies to become a member of academic staff of the provider, the person is not adversely affected in relation to the application because they have exercised their freedom within the law to do the things referred to in subsection (6)(a) and (b).

(10) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.

(11) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).

(12) In subsection (11)—

“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—publishing information about the relevant complaint, ordisclosing information about the relevant complaint to any one or more other persons;

“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;

“misconduct” means—sexual abuse, sexual harassment or sexual misconduct, andbullying or harassment not falling within paragraph (a).

(13) In this Part—

references to freedom of speech are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form);

“the Convention” has the meaning given by section 21(1) of the Human Rights Act 1998;

“member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;

“registered higher education provider” and “governing body”, in relation to such a provider, have the same meanings as in Part 1 of this Act.

Code of practice

A2

(1) The governing body of a registered higher education provider must, with a view to facilitating the discharge of the duties in section A1(1) and (10), maintain a code of practice setting out the matters referred to in subsection (2).

(2) Those matters are—

(a) the provider’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech,

(b) the procedures to be followed by staff and students of the provider and any students’ union for students at the provider in connection with the organisation of—

(i) meetings which are to be held on the provider’s premises and which fall within any class of meeting specified in the code, and

(ii) other activities which are to take place on those premises and which fall within any class of activity so specified,

(d) the criteria to be used by the provider in making decisions about whether to allow the use of premises and on what terms (which must include its criteria for determining whether there are exceptional circumstances for the purposes of section A1(10)).

(3) The code of practice may deal with such other matters as the governing body considers appropriate.

(4) The governing body of a registered higher education provider must take the steps that are reasonably practicable for it to take (including where appropriate the initiation of disciplinary measures) in order to secure compliance with its code of practice.

(5) The governing body of a registered higher education provider must, at least once a year, bring—

(a) the provisions of section A1, and

(b) its code of practice under this section,

to the attention of all of its students.

Duty to promote the importance of freedom of speech and academic freedom

A3

The governing body of a registered higher education provider must promote the importance of—

(a) freedom of speech within the law, and

(b) academic freedom for academic staff of registered higher education providers and their constituent institutions,

in the provision of higher education.

Duties of constituent institutions

A4

(1) Sections A1 to A3 apply in relation to the governing body of a constituent institution of a registered higher education provider as they apply in relation to the governing body of the provider.

(2) Accordingly, in the application of those sections by virtue of subsection (1), references to “the provider” are to be read as references to the constituent institution.

(3) The duties of the governing body of a constituent institution of a registered higher education provider under sections A1 to A3 do not affect the application of any initial or ongoing registration conditions imposed on the provider under Part 1 of this Act.

(4) In this Part—

“constituent institution”, in relation to a registered higher education provider, means any constituent college, school, hall or other institution of the provider;

“governing body”, in relation to a constituent institution of a registered higher education provider, has the same meaning as in Part 1 of this Act;

“member”, in relation to a constituent institution of a registered higher education provider, does not include a person who is a member of the institution solely because of having been a student of the institution.

Duties of students’ unions

Duty to take steps to secure freedom of speech

A5

(1) A students’ union for students at a registered higher education provider that is eligible for financial support must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective in subsection (2).

(2) That objective is securing freedom of speech within the law for—

(a) members of the students’ union,

(b) students of the provider,

(d) staff and members of the provider and of its constituent institutions, and

(e) visiting speakers.

(3) The objective in subsection (2) includes securing that—

(a) the use of any premises occupied by the students’ union is not denied to any individual or body on grounds specified in subsection (4),

(b) the terms on which such premises are provided are not to any extent based on such grounds, and

(4) The grounds referred to in subsection (3) are—

(a) in relation to an individual, their ideas or opinions;

(b) in relation to a society or other body, its policy or objectives or the ideas or opinions of any of its members.

(5) In order to achieve the objective in subsection (2), a students’ union for students at a registered higher education provider that is eligible for financial support must secure that, apart from in exceptional circumstances, use by any individual or body of premises occupied by the students’ union is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.

(6) In this Part—

“member”, in relation to a students’ union which is a representative body and not an association (see section 20(1)(b) of the Education Act 1994), means those whom it is the purpose of the union to represent, excluding any student who has signified that they do not wish to be represented by it;

“registered higher education provider that is eligible for financial support” means a registered higher education provider that is an eligible higher education provider for the purposes of section 39;

“students’ union”, in relation to any institution, has the same meaning as it has in Part 2 of the Education Act 1994 in relation to establishments to which that Part applies (see section 20 of that Act).

(7) In this Part, references to a students’ union for students at a registered higher education provider that is eligible for financial support do not include a students’ union for students at a constituent institution of such a provider.

Code of practice

A6

(1) A students’ union to which section A5 applies must, with a view to facilitating the discharge of its duties under that section, maintain a code of practice setting out the matters referred to in subsection (2).

(2) Those matters are—

(a) the students’ union’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech,

(b) the procedures to be followed by its staff and its members who are students of the registered higher education provider referred to in section A5(1) in connection with the organisation of—

(i) meetings which are to be held on the premises occupied by the students’ union and which fall within any class of meeting specified in the code, and

(ii) other activities which are to take place on those premises and which fall within any class of activity so specified,

(d) the criteria to be used by the students’ union in making decisions about—

(i) the union’s support and funding for events and activities to which the duties in section A5 are relevant, and

(ii) whether to allow the use of premises and on what terms (which must include its criteria for determining whether there are exceptional circumstances for the purposes of section A5(5)).

(3) The code of practice may deal with such other matters as the students’ union considers appropriate.

(4) A students’ union to which section A5 applies must take the steps that are reasonably practicable for it to take (including where appropriate the initiation of disciplinary measures) in order to secure compliance with its code of practice.

(5) A students’ union to which section A5 applies must, at least once a year, bring—

(a) the provisions of section A5, and

(b) its code of practice under this section,

to the attention of all of its members who are students of the provider.

Freedom of speech

69A

(1) The OfS must promote the importance of—

(a) freedom of speech within the law, and

(b) academic freedom for academic staff of registered higher education providers and their constituent institutions,

in the provision of higher education by registered higher education providers and their constituent institutions.

(2) The OfS may—

(a) identify good practice relating to how to support freedom of speech and academic freedom, and

(b) give advice about such practice to registered higher education providers and their constituent institutions.

(3) The Secretary of State may, by direction, require the OfS to report to the Secretary of State—

(a) in its annual report under paragraph 13 of Schedule 1, or

(b) in a special report,

on such matters relating to freedom of speech and academic freedom as may be specified in the direction.

(4) Where the Secretary of State is provided with a special report, the Secretary of State must lay it before Parliament.

(5) See paragraph 13 of Schedule 1 for the laying of the OfS’s annual reports.

The Director for Freedom of Speech and Academic Freedom

3A

(1) The Director for Freedom of Speech and Academic Freedom (“the Free Speech Director”) is responsible for—

(a) overseeing the performance of the OfS’s free speech functions,

(b) performing, in accordance with paragraph 11, any of those functions, or other functions, of the OfS which are delegated to the Free Speech Director under that paragraph, and

(2) For the purposes of this Schedule, the OfS’s “free speech functions” are—

(a) its functions relating to monitoring and enforcing the registration conditions of registered higher education providers under section 8A, and

(b) its functions under sections 69A to 69E and Schedule 6A.

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