The Office for Students (OfS) is proposing a new approach to the regulation of harassment and sexual misconduct affecting students in registered higher education providers. We set out our response to the consultation below.

Question 1a: Do you agree or disagree with the proposal to introduce a new general ongoing condition of registration relating to harassment and sexual misconduct? Please give reasons for your answer.

Response: We agree that it is important for HEPs to regulate the conduct of staff and students so that the latter are afforded a reasonable opportunity to attain the qualification for which they have enrolled and to engage effectively in the student experience.  We also agree that the OfS has a role to play in helping HEPs to create an environment in which harassment and sexual misconduct are ultimately eliminated.  Student-to-student sexual misconduct and harassment are, however, complex phenomena.  Student misconduct is influenced by a multiplicity of factors prior to and after students arrive at a HEP. Those factors can be societal and cultural, as well as peer groups, and are often outside of the reasonable control of the HEP.  The solution therefore is also complex.  Consequently, the OfS should be satisfied, based on evidence, that the requirements it imposes are likely to be effective.  No evidence has been provided in the consultation document to demonstrate that the proposals will achieve a reasonable degree of efficacy.

Further, in common with other regulators, for example the Competition and Markets Authority and the Information Commissioner, the OfS should commit to publishing good-practice guidance setting out the range of reasonable responses from HEPs, and should commission training to support HEPs in fulfilling the regulatory requirements it imposes.  We note this formed part of the SUMS evaluation report which recommended it should be done before the consultation on imposing a registration condition.

We also note that the proposal is prescriptive and at times appears to usurp HEPs’ responsibilities for operational management, for example requiring a single document.  Such an approach is inconsistent with principles-based regulation.

Question 1b: Do you have any alternative suggestions to the proposal to introduce a new general ongoing condition relating to harassment and sexual misconduct? If so, please explain and provide reasons for your view.

Response: If the new general ongoing condition incorporates the suggestions above, there will be no need for an alternative.

Question 2a: Do you agree or disagree that the definition of harassment in proposed condition E6 should have the meaning given in section 26 of the Equality Act 2010 and section 1 of the Protection from Harassment Act 1997? Please give reasons for your answer.

Response We agree with the definition derived from the Equality Act 2010 s26 because it imposes specific duties on HEPs in respect of their staff and students.

Defining conduct by reference to statutory criminal offences, on the other hand, gives us cause for serious concern. HEPs are not competent to investigate statutory criminal offences, which require analyses of evidence relating to complex mental states as well as physical acts, nor do they have power to seize property or conduct forensic analyses. Investigating criminal offences also requires a higher standard of proof i.e. beyond reasonable doubt. There is a clear risk that if a HEP purports to investigate a criminal offence, it will face procedural challenges by those advising students accused of misconduct, for example, to adopt the criminal standard of proof. Disciplinary panels are not trained to act as criminal judges nor would it be appropriate for them to act as such. There is evidence from our experience that HEP staff will be reluctant to sit on disciplinary panels if they believe that they are being asked to consider criminal offences and to apply the higher standard of proof. If they do sit on such panels, they will be reluctant or unable to conclude that the allegations are proven. Also in our experience, adopting criminal-law definitions emboldens lawyers representing accused students to argue, with some merit, that a HEP has no jurisdiction to prosecute criminal offences and a finding of guilt in such circumstances by a body not competent to reach that conclusion would have grave consequences for the accused student. These realities present further barriers to HEPs dealing with cases which are already by their nature complex and challenging.

Question 2b: Do you have any alternative suggestions to the proposal in question 2a that you think may be more appropriate? If so, please explain and give reasons for your view.

Response: There is merit in the sector adopting common definitions provided that those definitions are appropriate to the context i.e. domestic legislation of HEPs.  Guidance published by Universities UK in October 2016 provided a list of definitions which make no reference to the criminal law, for use by the sector, and which have already been adopted by many HEPs.  There is no good reason why those definitions, subject to any reasonable supplementation, should not also be adopted by the OfS.  The guidance can be found at:  guidance-for-higher-education-institutions.pdf (universitiesuk.ac.uk)

Question 3a: Do you agree or disagree that the definition of sexual misconduct in proposed condition E6 should mean any unwanted or attempted unwanted conduct of a sexual nature and include but not be limited to the definition of ‘sexual harassment’ contained in section 26(2) of the Equality Act 2010 and rape and assault as defined by the Sexual Offences Act 2003? Please give reasons for your answer.

Response: We agree with the definition derived from the Equality Act 2010, for the reasons already outlined above under question 2(a).

We have serious concerns regarding the proposed application of the term “rape and/or sexual assault”, which are serious criminal offences, and/or any definitions derived from the Sexual Offences Act 2003, for the reasons already outlined.  We recite here again those reasons for ease of reference.

HEPs are not competent to investigate statutory criminal offences, which require analyses of evidence relating to complex mental states as well as physical acts, nor do they have power to seize property or conduct forensic analyses. Investigating criminal offences also requires a higher standard of proof i.e. beyond reasonable doubt. There is a clear risk that if a HEP purports to investigate a criminal offence, it will face procedural challenges by those advising students accused of misconduct, for example, to adopt the criminal standard of proof. Disciplinary panels are not trained to act as criminal judges nor would it be appropriate for them to act as such. There is evidence from our experience that HEP staff will be reluctant to sit on disciplinary panels if they believe that they are being asked to consider criminal offences and to apply the higher standard of proof. If they do sit on such panels, they will be reluctant or unable to conclude that the allegations are proven. Also in our experience, adopting criminal-law definitions emboldens lawyers representing accused students to argue, with some merit, that a HEP has no jurisdiction to prosecute criminal offences and a finding of guilt in such circumstances by a body not competent to reach that conclusion would have grave consequences for the accused student. These realities present further barriers to HEPs dealing with cases which are already by their nature complex and challenging.

Question 3b: Do you have any alternative suggestions to this proposal that you think may be more appropriate? If so, please explain and give reasons for your view.

Response: As already indicated, there is merit in the sector adopting common definitions provided that those definitions are appropriate to the domestic legislation of a HEP.  Guidance published by Universities UK in October 2016 provided a list of definitions, which make no reference to the criminal law, for use by the sector and which have already been adopted by many HEPs.  There is there is no good reason why those definitions, subject to any reasonable supplementation, should not also be adopted by the OfS.  The guidance can be found at: guidance-for-higher-education-institutions.pdf (universitiesuk.ac.uk)

Question 4a: Do you agree or disagree with the proposal that a provider should create a single document which comprehensively sets out policies and procedures on subject matter relating to incidents of harassment and sexual misconduct, and prominently publish that document in the manner we are proposing? Please give reasons for your answer.

Response: Disagree. Disciplinary and other processes can be both intelligible and accessible without being included in a single document. Sexual misconduct and harassment form part of an overall code of conduct with which students are contractually obliged to comply.  Having separate procedures and documentation for one form of serious misconduct is likely to be confusing for students and could diminish the significance of other forms of serious misconduct.

Transparency and accountability are adduced by the OfS as a rationale for the single document.  It is instructive to note that the Information Commissioner (IC), who has statutory responsibility for ensuring transparency and accountability of public authorities, has published guidance for HEPs (the majority of which are public authorities) on the routine publication of information under the Freedom of Information Act 2000 s19 (FOIA). That guidance gives examples of information that the IC would expect HEPs to publish, and it includes student procedures and policies. Nowhere does it insist that such information should be contained in a single document in order to achieve transparency and accountability or to achieve any other purpose.

It is not clear to us therefore why the OfS seeks to prescribe at this level of operational detail nor does it provide any evidence that the imposition of the requirement would be effective in achieving its stated objectives.

Question 4b: Do you have any alternative suggestions to the proposal in question 4a? If so, please explain and provide reasons for your view.

Response: Discretion should be afforded to individual HEPs regarding how they ensure accessibility and intelligibility, principles they already have to comply with under consumer-protection legislation and the principles of accountability and transparency required by the FOIA.

Question 5a: Do you agree or disagree with the proposal that minimum content requirements should be specified for the single document we propose a provider should maintain? Please give reasons for your answer.

Response:  We agree with the principle of minimum content provided it is properly defined and is effective in achieving the OfS’s reasonable purposes.  “Minimum-content requirements” is defined in the consultation as “comprehensive and easy to understand provisions” in respect of the specified matters.  Definitions, particularly stipulative definitions deployed by a regulator, should be incisive and unambiguous.  In other words, good regulation requires conditions of registration to be drafted with sufficient precision to enable HEPs to foresee with a reasonable degree of certainty when their actions will put them in breach.  The term “comprehensive” is defined by the Cambridge Dictionary as “complete and including everything”.  No indication is provided in the consultation regarding what the OfS regards as “comprehensive” in relation to the matters listed for inclusion in the single document.  The proposed definition leaves HEPs with no substantive understanding of how the OfS will apply the condition of registration in practice, and lacks the requisite degree of certainty expected of regulators as a matter of public law. It also fails to comply with the Regulators’ Code paragraph 5, which the OfS has a statutory duty to take into account.  Paragraph 5 provides that “Regulators should ensure clear information, guidance and advice is available to help those they regulate meet their responsibilities to comply”.

Another source of concern is the proposed requirement that HEPs must include steps that “make a significant and credible difference in protecting students ……”.  The efficacy of those steps cannot reasonably be verified at the point at which a condition of registration is first imposed.  Efficacy can only be assessed by trial and error over a substantial period of time and will be dependent on many variables, including the changing characteristics of cohorts of students, the ability of HEPs to recruit staff and the availability of training targeted to the needs of HEPs.   The proposal is, again, unreasonable because it lacks the reasonable degree of certainty required by those who are regulated to enable them to comply with regulatory requirements or to foresee when they are likely to be in breach of them.

Question 5b: Do you have any alternative suggestions to the proposal in question 5a? If so, please explain and give reasons for your view.

Response: Clear, measurable and certain conditions that the OfS is satisfied are effective and provide the requisite degree of predictability and certainty to enable compliance should only be imposed on HEPs.

Question 6a: Do you agree or disagree with the minimum content requirements proposed for the single document we propose a provider should maintain? Please give reasons for your answer.

Response: We agree that it reasonable for HEPs to provide information relating to their procedures, the available support, staff training and disclosure of information to those who have a legitimate interest in receiving such information.  For the reasons outlined above, however, the minimum-content requirement is flawed because it is inherently uncertain as defined in the proposal and therefore unreasonable as a condition of registration. Further, prescribing, for example, whether or not training should be provided during staff induction is an operational matter and not appropriate for inclusion in a condition of registration. A HEP should be at liberty to decide how to comply with a principle-based condition, with the benefit of guidance from the OfS.

Question 6b: Do you have any alternative suggestions to the proposal in question 6a? If so, please explain and give reasons for your view.

Response: The appropriate vehicle for minimum content is in good practice guidance issued by the OfS to accompany a principle-based condition of registration.  That guidance should recognise that a HEP may well experience different challenges at different times, depending on the characteristics of different cohorts of students, staff profiles and recruitment patterns over which they may have little control.   What will make a “significant and credible difference” is therefore likely to change for individual HEPs and they should be afforded the flexibility to decide, with the benefit of guidance, what in the context of their own circumstances will best achieve compliance.

Question 7a: Do you agree or disagree with the proposal for content principles for the single document we propose a provider should maintain? Please give reasons for your answer.

Response: Disagree.  This proposal is otiose. HEP staff are well aware that promulgating contradictory provisions is undesirable and there is no evidence that the practice is endemic. This proposal again engages in operational prescription that is inappropriate for a regulator.

Question 8a: Do you agree or disagree with the proposal that a provider should be required to have the capacity and resources necessary to facilitate compliance with this condition? Please give reasons for your answer.

Response: Disagree.  The assumption of this proposal is that a HEP will hold perfect information regarding the capacity and resources required at the outset of the imposition of this condition and at all times thereafter both to prevent and to respond to sexual misconduct and harassment.  Resources in one year may be sufficient but insufficient in the next year because new cohorts of students present greater or more frequent challenges, which cannot reasonably be anticipated by reference to demography or mode of study.  It also assumes that there will be a perfect coincidence between the number of trained staff required and the availability of such staff.  The proposed condition places on HEPs a responsibility that they are very unlikely to be able to discharge from the outset or consistently, and it is therefore unreasonable.

Question 8b: Do you have any alternative suggestions for the proposal in question 8a? If so, please explain and give reasons for your view.

Response: The OfS should consider instead imposing a condition requiring HEPs to assess and keep under review the resources they would reasonably require in order to comply with the condition, and to take reasonable steps to apply those resources.

Question 9a: Do you agree or disagree with the proposal that a provider should be required to comply with the proposed condition in a manner that is consistent with the proposed freedom of speech principles? Please give reasons for your answer.

Response: Disagree.  HEPs already have duties regarding freedom of speech/expression and academic freedom. Further, the definition of harassment provided by the Equality Act s 26, which we have agreed is an appropriate definition to use in the context of this proposal, qualifies the perception of the individual complaining of harassment with an objective test of reasonableness. There is therefore adequate provision for ensuring that such rights are protected.  Judgments regarding freedom of speech in the context of harassment are very finely balanced and very challenging, depending on the specific circumstances of each case.  Reasonable people may reasonably differ on where the line should be drawn, and it is impossible, without a court considering the case and issuing a ruling, to be certain that the line has been drawn in the correct place.  Imposing an additional regulatory requirement regarding freedom of speech as part of new condition E6 would therefore represent an unfair regulatory burden, because it would be difficult for a HEP to be confident that they were complying with it in each case that arises.

Question 9b: Do you have any alternative suggestions to the proposal in question 9a? If so, please outline and give reasons for your view.

Response: Accept that free-speech judgments in individual cases are very difficult, and that adding to the existing requirements regarding freedom of speech will not make those decisions easier. It is more likely to make them more difficult.  The condition should be qualified so that the OfS will accept the judgment of the HEP in any case, provided it is within the range of reasonable responses that could be reached in that case.

Question 10a: Do you agree or disagree with the proposal to prohibit a provider from using provisions which have the effect of preventing or restricting the disclosure of information about incidents relating to harassment or sexual misconduct? Please give reasons for your answer.

Response: We agree with the proposal that NDAs should not be entered into after the date the new condition of registration takes effect.  We have very serious concerns, however, regarding any attempt to impose a condition of registration retrospectively, for which no justification has been provided in the consultation.  Our experience is that third parties will have acted in reliance on NDAs concluded by HEPs, and a failure by the HEP to enforce an NDA may cause a detriment to that third party.  It will also often put the HEP in breach of its contractual obligations to the third party (e.g. breach of the employment contract).  Seeking to regulate retrospectively is inimical to the rule of law and no reasonable regulator should engage in such a practice.

Question 10b: Do you support any of the alternative options we have outlined or do you have any other proposals? If so, please explain and provide reasons for your view.

Response: Limit the proposal to prohibiting NDAs after the date on which the condition of registration takes effect.

Question 11a: Assuming that the OfS introduces a new condition of registration E6 (subject to the outcome of this consultation), which of the following options discussed in Proposal F do you think should be included in condition E6:
  1. Option A as proposed;
  2. Option B as proposed;
  3. An option similar to Option A but with some changes (in which case please set out the changes that you would suggest in the next question);
  4. An option similar to Option B but with some changes (in which case please set out the changes that you would suggest in the next question);
  5. Any of the alternative options considered in this proposal;
  6. None of the above.

Response: Our preferred approach would be Option A but subject to the qualifications outlined below under 11(b).

Question 11b: Please give reasons for your answer in question 11a above.

Response: We understand the need for consistency in the sector regarding dealing with abuses of power by relevant staff, and therefore Option A with some modifications is likely to be optimal.  Care should be taken to ensure that the reporting requirement goes no further than is reasonably required to protect the rights of students.  For example, “romantic or emotional intimacy”, which is one trigger for the proposed reporting duty, is not defined and appears to apply to a one-off occurrence. Without a clear definition that is consistent with the risk of harm (i.e. conduct that gives rise to a risk of an abuse of power), staff may feel compelled to disclose information unnecessarily, breaching their or students’ reasonable expectations of privacy.  The OfS should therefore give greater thought to the specific conduct it believes creates the relevant risk.

Whilst it is reasonable for the OfS to include dismissal as being within the range of reasonable responses to a deliberate failure to disclose a relationship, it is not appropriate for it to require the termination of that member of staff’s employment as proposed by E6.9(b)(ii).  There may be mitigating circumstances in individual cases that warrant a less serious penalty.  The employment relationship is one in which the HEPs should be able to exercise its autonomy.  It is instructive to note that the Secretary of State for Education’s powers of intervention in further education corporations expressly exclude the power to require the dismissal of a member of staff, in deference to such autonomy (Further and Higher Education Act 1992 s56A(9)).

Question 12c: Do you have any comments about the proposed timeframe for implementing any new condition outlined in this consultation? If so, please explain and provide reasons for your view.

Response: We would propose staggered implementation over an extended period in view of the problems associated with some of the proposals as drafted i.e. the inability of HEPs to foresee with a reasonable degree of certainty whether they can comply, or that the steps they take will make a “significant and credible difference”.  A staggered approach would enable HEPs better to make that assessment.  The need for a staggered approach is also reinforced by the fact that the OfS has not provided assurance by reference to evidence that the proposal will in fact achieve the desired outcomes.

Question 13: Do you foresee any unintended consequences resulting from the proposals set out in this consultation? If so, please indicate what you think these are and the reasons for your view.

Response: If the OfS does not address the deficiencies in its draft proposals as outlined above, there is a real risk that HEPs may seek to reduce their regulatory risk by engaging in defensive practices that may (i) inadvertently reduce or limit opportunities for students; (ii) have a disproportionate impact on certain groups of students and/or (iii) result in unfairness to certain groups of students.

25 April 2023

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Published: 25th April 2023
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