Higher Education and Research Act 2017

• (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,

• (c) the conduct required of such persons in connection with any such meeting or activity, and

• (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

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,

• (c) staff of the students’ union,

• (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

• (c) affiliation to the students’ union is not denied to any student society on grounds specified in subsection (4)(b).

• (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,

• (c) the conduct required of such persons in connection with any such meeting or activity, and

• (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

• (c) reporting to the other members of the OfS on the performance of the OfS’s free speech functions.

• (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.