The OfS Proposals on Regulating Harassment and Sexual Misconduct February 2023: An Evaluation

The consultation document on the ‘new approach to regulating harassment and sexual misconduct in English Higher Education’ was published on 23^rd February 2023. A little over two months was allocated for responses to be submitted. The closing date was 4^th May 2023. Page five of the original document stated, under the heading ‘Next Steps’: “We aim to publish a summary of responses to this consultation later in 2023.” At the time of writing this blog it is spring 2024 and the responses have yet to be published.

The importance and implications of this subject are substantial and as a result three blogs were planned for its consideration: “Background to Office for Students (OfS) Duty of Care Consultation document”, then the consultation document itself “The OfS Proposals on Regulating Harassment and Sexual Misconduct February 2023” and lastly a response from the sector. This last blog of the trilogy was intended to be driven by the published responses of the OfS. Unfortunately to date these are unavailable, so here are some reflections upon possible responses in lieu of the OfS release of the formal report. Given the limitations of an 800ish word blog, three broad themes have been selected for consideration.

Issues for reflection

Appendix B of the consultation document lists the sixteen questions relating to specific proposals (page 68-70) and which are embedded in the document at the end of each discursive set of proposals. I would raise several themes of concern.

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.” 

There is a high degree of complexity within student interpersonal relationships. The proposal is prescriptive in requiring a ‘single document’. This is contrary to the principles-based approach to regulation.

Similarly 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.” 

The minimum requirement usurps the independence of the HEI. The HEI should properly have the latitude to decide how to comply with principle-based guidance from the OfS. In addition, the minimum content requirement as written within the document lacks clarity.

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.” complements Question 6a but the preamble to the question raises different issues. ‘The minimum contents requirements’ are defined as ‘comprehensive and easy to understand’ para 42, page 21. 

The Oxford Dictionary defines ‘comprehensive’ as “complete; including all or nearly all elements, aspects etc” while the Cambridge Dictionary states, “complete and including everything”. The consultation document lacks an explanation of what is meant by “comprehensive” regarding the issues required to be included in the new single document. In addition, the phrase “make a significant and credible difference in protecting students”, para 49, page 42 cannot be assured at the point of registration. This can only be known as a result of longitudinal research. In short, an iterative process of implementing policy and observing its success or otherwise over a substantial period of time.

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” and 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.” 

The definition drawn from the Equality Act 2010 Section 26 imposes clear and specific responses upon HEIs with reference to their students’ and staff. This has some merit. However, deriving a definition of conduct from statutory criminal law is problematic. This is likely to place HEIs in the position of investigating and analysing evidence of complex mental dispositions as well as physical acts. HEIs do not have the power to seize property or conduct forensic analysis. In addition, criminal offences require the higher standard of proof which is ‘beyond reasonable doubt’. If this proposal comes to pass there will be fertile ground for legal challenge. Moreover, if HEI staff are asked to participate in panels which aspire to apply the ‘beyond reasonable doubt’ standard of proof, it is likely that staff will (A) be uncomfortable participating in such a process and (B) be reluctant to conclude allegations are proven. It is within this cauldron of dysfunction that it is likely lawyers representing accused students will make a persuasive case that HEIs have no authority to prosecute criminal offences.

Clearly the constraints of this blog limit a detailed critical evaluation of what might be sector feedback. In addition, these reflections are not based on the formal sector feedback because as previously mentioned this is unavailable at time of writing. However, in the limited space available here it is possible to observe three significant areas of concern. 

1. Clarity. It is crucial that an individual HEI understands precisely what is required of it regarding registration. 

2. The prescriptive nature of the report appears to be a departure from the tradition of advice, guidance, and operating principles.

3. There appears to be thinking within the consultation document which may lead HEIs into a very difficult position of adjudicating matters which may be deemed criminal. They are not equipped to do this and there is a case to be made that they do not have the authority to do this.

The proposition of a ‘simple’ easily accessible protocol which is consistent across all HEI’s and contained in a single document is, in theory, a ‘good’ thing for both students and HEI’s. However, to borrow the words of Walter Savitch:

“In theory, there is no difference between practice and theory. In practice, there is”.

• Savitch, W.J. (1986) Pascal: An introduction to the Art and Science of Programming