OfS figures out what a governing document is

It was by no means the only strike against England’s higher education regulator in University of Sussex vs Office for Students but it was the one that knocked the OfS position out of the park.

In my view the OfS has misdirected itself as to the meaning of governing documents in s.14 of HERA

OfS had believed all policy documents adopted by a provider were governing documents – and that it had the power to determine whether they met the public interest governance principles, and issue consequential fines. Through a close reading of documentation around the Higher Education and Research Act 2017 (HERA), Justice Lieven demonstrated that the intention of the government was to include only those documents that had a governing effect, rather than any adopted policy that the regulator took against.

This finding does require some tidying up of the Regulatory Framework, and accordingly OfS has set out a new definition of “governing document” which mirrors the judicial language:

documents that have some governing effect, which goes to the constitution or governance of the higher education provider

This is published as a standalone definition for now, an updated regulatory framework will be laid before parliament (as is required) by the end of the year.

This has an effect on the way conditions of registration E1 (public interest governance principles) and E2 (effective management and governance arrangements) are read. In practical terms, governing documents should include – but are not limited to those listed in initial condition E7:

• Documents which establish the provider as an institution (Royal Charter, memorandum and articles of association, trust deed…)
• Documents which set out a provider’s purpose or objectives
• Documents that set parameters for the governing body (including the number of members, roles and responsibilities, decision making procedures..)
• Risk and audit documents
• Decision making documents (stuff like schemes of delegation and the oversight thereof)
• Conflicts of interest policy

The old condition, in the regulatory framework (paragraph 424), was much broader:

‘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’.

There is another non-exclusive list in the following paragraph:

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 (my emphasis)

In the University of Sussex case OfS had used this very broad definition to convince itself that the Sussex trans and non-binary equality policy statement was a governing document for the purposes of determining compliance with public interest conditions, specifically around academic freedom (I) and freedom of speech (VIII). This definitional change makes it clear that OfS will not be able to make a similar mistake in future.

In future, providers in England will be subject to the rules set out in the Higher Education (Freedom of Speech) Act 2023. These require governing bodies to maintain a code of practice setting out freedom of speech values, and (because of the peculiar way that the legislation has been drafted) procedures relating to meetings held on provider premises. It also places a duty on providers to promote the importance of freedom of speech within the law and academic freedom. Guidance on these requirements (as updated in August) suggests that policies that may infringe rights to academic freedom or freedom of speech need to be carefully considered so as to avoid restricting lawful speech – and from April 2027, new requirements of registration (yet to be consulted on) will allow OfS to intervene where it is not happy.