Written evidence from National Secular Society, (NSS) (WOS0012)
1. Background
1.1 The National Secular Society (NSS) is a not-for-profit, non-governmental organisation founded in 1866, funded by its members and by donations. We advocate for separation of religion and state and promote secularism as the best means of creating a society in which people of all religions and none can live together fairly and cohesively.
1.2 Our research has uncovered a number of historic religious practices and privileges in Higher Education (HE) which we consider inappropriate in a pluralist democracy aspiring to a fair and equal society.
1.3 In particular, and directly relevant to this inquiry, we have gathered compelling evidence that three independent theological colleges are in breach of several of the ‘Public Interest Governance Principles’ which ‘apply to all registered providers’ and are intended to ensure the quality of HE provision and the appropriate use of public funds. These ‘Public Interest Governance Principles’ include ‘Academic Freedom’, ‘Freedom of Speech’, ‘Governing Body’, and ‘Value for Money’ (wording in quotes is from OfS website and regulatory documents)
1.4 We have also gathered evidence for discrimination against students on grounds of sexual orientation, in contravention of the requirement for ‘equal access and participation for students from all backgrounds and consider that these Colleges may be in breach of the Equality Act (2010), although this has yet to be tested in the courts.
1.5 Degrees from these theological colleges are validated by one or more universities. However, the theological colleges are independently registered with the OfS and therefore receive public funds directly.
1.6 For the past two years we have engaged with the OfS on these issues. The OfS has steadfastly refused to engage in discussion, take any action, and refuses to confirm or deny whether it is even investigating the question of whether these colleges are in breach of the terms of registration.
1.7 We note that the Post-16 Skills Act, 2022 included a clause which specifically gives the OfS protection from publishing the outcomes of its investigations to ensure transparency.
1.8 We have no confidence that the OfS is fulfilling its duty to ensure HE providers comply with the conditions of registration which enable them to receive public funds, and consider the OfS is failing in its duty as a regulator to be fair and transparent in its decision-making.
2. Engagement with the office for students
2.1 On September 1, 2021, we wrote to the then CEO of the OfS, Nicola Dandridge, suggesting we share our research which provided compelling evidence that several independent theological colleges registered with the OfS were in breach of the terms of registration. Nicola Dandridge replied on October 6th declining a meeting, suggesting instead that we submit a ‘third party notification’ detailing the issues. We note that, shortly thereafter, Nicola Dandridge announced her resignation as CEO.
2.2 In November 2021 we submitted the first of three third-party notifications, citing Moorlands Theological College, followed by an addendum in January 2022. In the notification we provided evidence that Moorlands was discriminating against LBGT+ staff and students, and that the college was in breach of other conditions of registration including academic freedom and freedom of speech.
2.3 On March 10th, 2022, as a new CEO was not in post, we wrote to Lord Wharton as board chair, informing him of the ‘third party notification’ and that two more were to follow shortly. Again, we suggested a meeting to discuss the issues. In his response of April 14th, 2022, Lord Wharton declined a discussion, but wrote “Third-party notifications are an important tool in making evidenced-based judgements on providers’ compliance with our conditions of registration. I appreciate that it can be frustrating that we are unable to provide regular updates on any investigations we carry out following third-party notifications. Please be assured that we assess all notifications that we receive to inform our judgements. Any further information that you are able to submit concerning other registered providers would be gratefully received”. (The full letter is provided at Attachment II)
2.4 We therefore submitted two further ‘third party notifications’ in March 2022, citing Elim Foursquare Gospel Alliance/Regents Theological College and Christ the Redeemer College.
2.5 The three ‘third party notifications’ submitted can be provided on request. However, for information and to show the seriousness of these issues raised, we have summarised the evidence cited in these notifications in Appendix I.
2.6 Having had no response from the OfS other than acknowledgement of receipt, and finding no indication that the issues raised in the notifications had been addressed, we submitted a Freedom of Information Request (FOI) in August 2022 in an attempt to discover what action the OfS was taking as a result of the invited ‘third party notifications’, if any.
2.7 On 16th September 2022, we received a reply to our FOI request declining to disclose any information (The full response is provided at Attachment III):
“We can neither confirm nor deny whether the OfS is formally investigating Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College. We consider it to be exempt from disclosure under FOIA””
2.8 On December 14th, 2022, we wrote to Lord Wharton to inform him that we had followed his advice and submitted notifications citing three independent theological colleges, yet the OfS executive appeared to have taken no action and refused to confirm whether they were even investigating the matters or not. We therefore asked the board “through your agency, to ensure the executive undertake a thorough and effective investigation of these complaints. We would be grateful if you could you confirm when the outcomes are likely to be in the public domain”. (The full letter is provided at Attachment IV).
2.9 In Lord Wharton’s reply of January 5th, 2023, he made it clear the OfS has no intention of informing us about whether or not any actions would been taken following the ‘third party notifications’ he had invited. In his response he added.
“I must reiterate that the OfS is not a complaint handling body, and we do not have a remit to investigate individual complaints we receive”. (The full letter is provided at Attachment V).
If that is the case, why did Lord Wharton suggest we raised our concerns in ‘third party notifications’? If it is not the responsibility of the OfS to investigate breaches of its own conditions of registration, whose responsibility is it? If the OfS does not ensure compliance with its terms of registration it is failing in its responsibility to ensure that public funds are not misspent.
2.10 Lord Wharton added in the same letter that “You note in your letter that section 67A of the Higher Education and Research Act 2017 provides the OfS with the powers to publish information about its investigations. This is right, but we are not required by those provisions to publish information in any particular situation.”
This was a disingenuous response. We in fact noted that the Post-16 Skills Act (2022) included a clause specifically to give the OfS protection from publishing the outcomes of its investigations, with the intention of ensuring the OfS could no longer use the excuse of risk of legal action for failing be transparent in reporting its activities.
2.11 As the OfS appeared to be failing in its duty to ensure that HE providers met the terms of registration required to receive public funds we wrote to the Secretary of State for Education, Robert Halfon, on January 27th, 2023, urging him:
“to ensure that the OfS fulfils its responsibilities in a transparent manner by addressing the issues we have raised, and either deregisters these Colleges, ensure compliance with the terms of registration, or makes clear why it considers these institutions are not in breach of the terms”.
(The full text of this letter is at Attachment VI).
2.12 The Secretary of State responded on February 23rd, 2023, stating:
“The department cannot offer any further information about OfS investigations.” “I should be clear that this is a matter for the OfS” and “…the regulator for higher education (HE) in England, the OfS is an autonomous institution, and it is of paramount importance that it should remain so”.
(The full text of this letter is provided at Attachment VII).
We fully accept that decision-making is ‘a matter for the OfS’ and decisions of the OfS should be free of political influence. But, if the OfS is failing to make decisions in order to maintain standards and ensure the proper use of public funds for education this should, in our opinion, be a concern of the Secretary of State and the Department for Education. We are well aware, for example, how thoroughly the Department of Education monitors the governance and use of public funds of academy schools and FE Colleges. Does The Department not also have a responsibility to ensure the same standards of scrutiny apply to publicly funded HE by ensuring the independent regulator, the OfS, is fulfilling its responsibilities?
3. Conclusions
3.1 We have no confidence that the OfS is willing or able to perform its role as the independent regulator of HE in ensuring registered providers meet the conditions of registration, maintain the standards required for HE provision, and ensure the appropriate use of public funds.
3.2 The OfS has the powers not to register, to register and deregister institutions if they fail to meet the conditions of registration. However, in the cases we have raised it does not appear willing to take action. We have evidence that a fourth independent theological college (Oak Hill College/Kingham Hill Trust), which appeared to us to be in breach of conditions of registration with the OfS, made the honest and appropriate decision to deregister itself and no longer accepting public funds (its students are now funded privately or by the Church of England, not the public purse).
3.3 We further consider that the OfS is failing to act in a fair and transparent manner for the benefit of the sector as a whole. If the OfS have taken our ‘third party notifications’ seriously and concluded that these theological colleges are not in breach of the conditions of registration, they should make the reasons clear so that all responsible institutions understand the requirements of registration and what the OfS understands by its Public Interest Governance Principles ‘Academic Freedom’, ‘Freedom of Speech’, ‘Governing Body’, and ‘Value for Money’, as well as ‘Fair Access and Participation’ and the absence of discrimination against characteristics protected in law.
This submission was prepared by Dr Keith Sharpe and Professor Chris Higgins FMedSci FRSE FRSA.
APPENDIX I: Summary of Evidence for Breach of Conditions of Registration with the OfS
Below we summarise what we consider compelling evidence presented to the OfS in in ‘third party notifications’ that Moorlands, Elim FourSquare Gospel Alliance, and Christ the Redeemer College, are in breach of the conditions of registration. Note that not all these alleged breaches apply to each of the colleges.
The full ‘third party notifications’ can be provided to the Committee on request.
A. Academic freedom and freedom of speech.
All these HE providers have governing documents which restrict governors, staff and admitted students to individuals who adhere to a particular religious doctrine. For example, “to advance the Christian Faith by establishing and maintaining a Bible training institution based solely on the Christian doctrines, principles and faith as set out in the Statement of Faith” which includes the following assertion: “The Holy Bible. The infallible and authoritative word of God given to direct all men and women to salvation.”
Academic staff and students are not only required to abide by the governing documents but are sometimes required to espouse a specific ‘I believe...’ statement of faith and even staff roles “carry an Occupational Requirement that the postholder be a committed evangelical Christian who is able to affirm the College’s vision and mission, and to sign its Statement of Faith."
Such requirements are diametrically opposed to the principles of Freedom of Speech and Academic Freedom which (according to the OfS website) include ‘promoting inquiry’, ‘questioning authority’ and promoting ‘new ideas. There is therefore a prima facia case for deregistration of these Colleges.
We accept that the Equality Act (2010) includes an exemption which allows theological colleges which training students in divinity for ordination are able to place such requirements on staff and students, but this exemption does not apply to registration with the OfS or receipt of public funds.
We also note that many of the students at these colleges are not studying divinity for ordination, and some students are studying subjects unrelated to divinity (e.g. business). For such students there is no exemption under the Equality Act (2010).
If deregistered by the OfS, the colleges could continue to operate under the exemption to the Equality Act as long as their teaching was restricted to divinity for ordination and they no longer accessed public funds (as other independent theological colleges that wish to take advantage of this exemption in the Equality Act have done). Alternatively, the churches could send their potential ordinands to study theology at a university which does not restrict freedom of speech and academic freedom.
B. Discrimination in access and participation. Some colleges overtly discriminate against LGBT+ students on theological grounds. An exemption in the Equality Act (2010) permits specialist theological colleges to discriminate when admitting students on grounds of faith, but only for the protected characteristic of religion, and only when registered with the Secretary of State.
Discrimination on grounds of protected characteristics such as sexuality or race is explicitly excluded by the OfS and yet continues in some independent theological colleges. One college, a member of the Evangelical Alliance, asserts:
"We affirm that marriage is an institution created by God in which one man and one woman enter into an exclusive relationship for life. Marriage is the only form of partnership approved by God for sexual relations and homoerotic sexual practice is incompatible with His will as revealed in Scripture”.
We have evidence from a former student of bullying and expulsion for having had sexual intercourse outside marriage. A recording and transcript of the Moorlands director of academic quality, Ian Kirby, who has a key role in admissions, stating to a public audience in 2019 “Homosexual activity is not His will. It is sin. It is not a human right.” (Emphasis added)
C. Governing bodies – The governors of these independent theological colleges are generally not appointed on a skills basis or according to Nolan Principles, but because of their leadership position in the churches own and operate the colleges to train their future ministers. This creates a direct conflict of interest between the governors’ financial and other responsibilities towards the church which employs them, and their responsibility to the students' education. Such governing bodies cannot be deemed to be meet OfS conditions of registration, or in any way be appropriate for a publicly-funded institution.
D. Value for money. These theological colleges are registered charities, not exempt charities like universities, and their primary financial regulator is the Charity Commission which does not have a specific responsibility for ensuring funds for educational purposes are appropriately used. They therefore avoid the rigorous financial scrutiny which the DfE gives public funds earmarked for educational purposes in universities, FE colleges and academies.
These colleges are often run by groups of churches and public funds intended for educational purposes are paid directly to these churches themselves. There is no evidence that these churches separate their general funds from those provided by the public purse for educational purposes. As the OfS requires that HE providers demonstrate value for money as a condition of registration it seems they are unable to assure government or the public these colleges meet this condition of registration.
There is a further important issue here. Some of these independent theological colleges are, in effect, internal staff training facilities for groups of churches who employ the teaching staff and select their own students according to their own values and doctrine. Yet, because the Colleges have been registered with the OfS, their training is funded from the public purse. If a non-faith-based organisation (a bank, major charity or pharmaceutical company, for example) wished to operate its own internal staff training facility in accord with a restricted curriculum and set of values, it would be expected to fund the training itself - as indeed the Church of England funds its own ministry training. How is it that the OfS can register religious organisations so they can receive public funds for what is, in effect, their own internal staff training programme?
04 April 2023
ATTACHMENTS
Written evidence from National Secular Society, (NSS) (WOS0012)
10 March 2022
Dear Lord Wharton,
You will recall that we have met on previous occasions, with different hats on, in the Northeast of England.
I am writing on behalf of the Secular Education Forum of the National Secular Society (NSS) to request a meeting in your capacity as Chair of the Office for Students. We previously wrote to the former Chief Executive, but shortly thereafter she announced her departure from the OfS.
By way of introduction, the NSS is an independent organisation founded in 1866 to advocate and promote a society in which people of all religions and none can live together fairly and cohesively. The Secular Education Forum works to ensure an education system free from religious privilege or discrimination.
Towards the end of 2021 the NSS submitted a ‘third party notification’ to the OfS, together with an addendum in January 2022, citing Moorlands College, an Evangelical Christian Theological College which is registered as an HE provider with the OfS. In the ‘notification’ we present evidence that Moorlands discriminates against homosexuals and other LGBT+ individuals and is not only in breach of its terms of registration with the OfS but also the Equality Act (2010).
We will shortly be submitting further notifications citing other Theological Colleges which are registered with the OfS. In our opinion, several Theological Colleges fail to meet the Public Interest Governance Principles which underpin their registration by the OfS.
We wish to support the OfS which has a particularly difficult task in establishing a robust registration process in a relatively short period of time. We appreciate the fact that you and your colleagues cannot discuss a particular case while an investigation is ongoing. However, there are several general principles of registration we believe need to be clarified (see below). At present, OfS processes are less than transparent and not only is the OfS unwilling to confirm whether or not an investigation of a ‘third party’ notification is ongoing, but the OfS does not normally make the outcomes of its investigations public. It is therefore difficult for the majority of providers, or external bodies, whether or not the OfS is fulfilling its legal obligation to ensure HE providers comply with their terms of registration.
We understand that the Secretary of State for Education is also concerned about the lack of transparency in OfS processes and is considering additional legislation.
Five general principles concern us, and we believe should also concern the OfS.
A number of HE providers with a ‘religious ethos’ have governing documents restrict governors, staff and admitted students to those who adhere to a specific doctrinal position. Some require staff and/or students to sign or espouse a specific ‘I believe…’ statement of faith. Requiring staff and students to adhere to such statements is diametrically opposed to the principles of Academic Freedom which (according to the OfS website) include ‘promoting inquiry’, ‘questioning authority’ and promoting ‘new ideas’.
We fail to understand how the OfS is upholding the principles of Academic Freedom or Freedom of Speech, if HE Providers whose governing documents require governors, staff and students to adhere to a specific doctrinal position continue to be registered.
We are unaware of any other sector in which an employer can establish and operate its own internal staff training programme, taught by its own staff and selecting its own students through a closed admissions process, while receiving student loans and other public funding. If BetFair, BP, GlaxoSmithKilne or even the Civil Service, wished to establish an internal staff training programme offering HE level qualifications they would be required to fund the programme themselves if the programme was not open to all (as does the Church of England), or otherwise expected recruit employees from degree programmes operated by independent Universities and Colleges.
With the current pressure on the student loan system and, potentially student numbers, funding internal staff training programmes, appears to be inappropriate use of public funds.
Admissions processes should always be transparent if the OfS is to achieve its laudable aim of widening access and participation and removing discrimination from university admissions. The opportunity for introducing discrimination in student admissions would be significantly reduced if all HE providers with access to public funding and student loans were required to use the UCAS admissions systems - this should not be an issue for institutions who have nothing to hide.
We note that, as the principal regulator of HE, the OfS is charged with ensuring that all HE providers offer value for money for the student and taxpayer. As the role of Theological Colleges is primarily HE provision, their funding should be subject to the same transparency, oversight and scrutiny as the majority of HE providers, and not allowed to escape proper scrutiny by becoming ‘registered’ rather than ‘exempt’ charities.
In our view there is a pressing need for the OfS to tighten up its oversight of unregistered providers (via their partner institutions) to protect the excellence of HE in this country.
I very much hope you will agree to a discussion of some of these matters within the next few weeks, so we can share our separate perspectives and, hopefully reach a common understanding. Perhaps you might suggest some convenient dates?
With best wishes
Yours Sincerely
Professor C.F. Higgins FMedSci FRSE FRSA
Secular Education Forum of the National Secular Society
04 April 2023
Written evidence from National Secular Society, (NSS) (WOS0012)
Professor C.F. Higgins FMedSci FRSE FRSA Secular Education Forum of the National Secular Society
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14 April 2022
Dear Professor Higgins,
Thank you for your letter of 10 March 2022 and I note your previous correspondence with Nicola Dandridge on this matter.
It is the position of the OfS that all students should enjoy the same protections of our regulation wherever they choose to study. As we set out in our previous response, there are no exceptions to our regulation made for particular types of provision, modes of study or corporate form. This includes our conditions of registration that cover a providers’ management and governance arrangements, and disclosures relating to the use of public funds.
Whilst all providers must comply with our conditions, our regulatory framework is principles-based and outcomes-focused, meaning we do not prescribe how providers arrange their affairs to comply. This allows for a diversity of provision which contributes to the strength of higher education in England, the excellence of which you rightly reference in your letter.
In deciding whether a provider meets our conditions of registration, we are required by the Higher Education and Research Act (HERA) 2017 to balance a number of duties. This includes the institutional autonomy of providers to decide the content of courses, admissions processes for students, and appointments of academic staff. As previously explained, we also have no remit to regulate unregistered providers. However, where they operate in partnership with a provider that is on our register, the registered provider is responsible for the provision at its partners.
I note that you have previously submitted a notification outlining your concerns on these matters at a registered provider. Third-party notifications are an important tool in making evidenced-based judgements on providers’ compliance with our conditions of registration. I appreciate that it can be frustrating that we are unable to provide regular updates on any investigations we carry out following third-party notifications. Please be assured that we assess all notifications that we receive to inform our judgements. Any further information that you are able to submit concerning other registered providers would be gratefully received.
Chair – Lord Wharton of Yarm Chief Executive – Nicola Dandridge CBE
Thank you for the offer of a meeting to discuss your concerns. However, the most appropriate route for you to raise any concerns about particular providers or share any information that will inform our regulatory decision-making, is via the third-party notifications route. Please forward any specific concerns to
Yours sincerely,
Lord Wharton of Yarm Chair
04 April 2023
Written evidence from National Secular Society, (NSS) (WOS0012)
16 September 2022 |
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Dear Stephen,
Thank you for your recent request for information under the Freedom of Information Act, which we have copied for your reference in Annex A.
The Act says that you are usually entitled to be told whether we hold any information that falls within the scope of your request and, if we do, to have that information provided to you except where it is covered by an exemption.
We confirm we hold information about notifications relating to Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College; however, we consider it to be exempt from disclosure under FOIA:
Section 31: specifically, sections 31(1)(g), 31(2)(c), where, disclosure would have a detrimental effect on the exercise of the OfS’s regulatory functions.
We can neither confirm nor deny whether the OfS is formally investigating Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College. We consider it to be exempt from disclosure under FOIA:
Section 31: specifically, sections 31(1)(g), 31(2)(c) and 31(3) which, read together, confirm that a public authority can refuse to confirm or deny holding relevant information, if to do so would, or would be likely to, risk undermining the ability of a regulator to go about its work.
Please see Annex B for details.
When we believe it is applicable to disclose information relating to regulatory matters (notifications and/or investigations), we will publish the information on our website1.
1 Our press and media page is available at:
Chair – Lord Wharton of Yarm Chief Executive – Susan Lapworth
04 April 2023
You have the right to appeal this decision. Details of our appeals process and what to do if you are unhappy with the outcome of that process are provided at Annex B.
Yours sincerely, FOI Team
Copied below is your clarified and original FOI request, for your reference: Clarified FOI request received on 18 August 2022:
“Apologies for the insufficient clarity. In this instance NSS refers to notifications from the National Secular Society.”
Original FOI request received on 11 August 2022:
“We note that the Skills and Post-16 Education Act 2022 now gives the Office for Students protection from defamation claims with respect to investigations they are conducting, or have conducted, into HE providers.
I would like to request all correspondence and written notes (whether paper or electronic) since January 2021 relating to third-party notifications submitted by the NSS, and any subsequent investigations (whether ongoing or complete) conducted by the OfS, concerning the following three registered HE providers:
Moorlands College;
Elim Foursquare Pentecostal Alliance - Regents Theological College;
Christ the Redeemer College, London. For avoidance of doubt this includes:
a. All relevant internal correspondence (whether paper or electronic) within the OfS;
b. All relevant minutes of OfS Board and Executive meetings (whether paper or electronic);
c. All relevant correspondence (whether paper or electronic) between the OfS and the Department for Education and/or its Ministers;
d. All relevant correspondence (whether paper or electronic) between the OfS and Moorlands College, Elim Foursquare Pentecostal Alliance - Regents Theological College) and Christ the Redeemer College, London.”
We confirm we hold information about notifications relating to Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College; however, we consider it to be exempt from disclosure under FOIA:
Section 31: Disclosure would have a detrimental effect on the exercise of the OfS’s regulatory functions.
Section 31 of the FOIA relieves a public body from releasing information if its disclosure under the FOIA would, or would be likely to, prejudice law enforcement. Specifically, section 31(1)(g) relates to the exercise by any public authority of its functions for any of the purposes specified in subsection (2).
The applicable purpose here is specified in section 31(2)(c): the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise.
The OfS is an independent regulator for higher education in England. As such, we ensure that registered providers (universities and colleges) meet and continue to meet our conditions of registration. These conditions represent the minimum requirements that providers of higher education must meet2.
As a regulator, examining and exploring issues relating to regulatory matters is our daily business and covers many of our activities, such as assessing notifications (concerns raised by individuals about providers, relevant to our regulatory remit)3 which, sometimes, can develop into investigations.
On a regular basis we monitor providers in relation to their conditions of registration. Where we can, we will always ensure transparency and publish information regarding our regulatory activity whenever it is appropriate and in the public interest to do so. When we believe it is applicable to disclose information relating to regulatory matters, we will publish the information on our website.
Disclosing the information you have requested would have a detrimental impact on how we perform as regulator moving forward. If we were to release the particulars of third-party notifications, then providers would be able to determine how we may approach them which could change how they operate and interact with us. It would also discourage others from submitting future notifications. Releasing all the information you have requested would therefore make the OfS less effective in its role as regulator. A public authority should not be required to disclose information in response to a request, (as stated in the Act), where doing so would prejudice the exercise of its functions (in particular, the functions relating to those purposes listed in section 31(2) of the Act). We, therefore, consider that the disclosure of the information you seek would have a detrimental effect on the exercise of the OfS’s functions.
Consequently, we do not consider that it is appropriate to disclose the information you have requested, therefore, we have applied the exemption: 31(1)(g).
2 The OfS’s conditions of registration are available at:
3 Further information about notifications is available at:
Section 31 is a qualified exemption, which means that it is subject to the public interest test. That means we must be satisfied that the public interest in withholding the information outweighs the public interest in disclosing it.
- There is a public interest in transparency and accountability.
- There is a public interest in how we perform (fairly and consistently) as a regulator.
- Disclosing the requested information would give providers the opportunity to review this and modify the way they respond to any notifications made about them in the future. Disclosing the information that you have requested would therefore, undermine our role as regulator.
- Disclosing the information would also discourage others from submitting notifications in the future, which would have a negative impact on our role as regulator.
- The information you have requested contains sensitive information and is confidential. The OfS ensures it is transparent where possible and publishes information regarding its regulatory activity when it is appropriate and in the public interest to do so.
- Providers may lose trust and confidence in the OfS, as regulator, if we were to disclose the requested information. Releasing this information would be likely to cause providers to become less engaged with us, as it may include commercially sensitive information, where it exists, which would have a negative impact on our duties as regulator. Such cooperation from providers is key to ensuring we effectively discharge our functions. There is a strong public interest in ensuring that the OfS is able to carry out its regulatory functions effectively and ensuring that our regulatory processes are not undermined.
- Disclosing the requested information would prejudice the OfS’s ability to carry out its regulatory functions. If fewer providers engage with the OfS then this would have a negative impact on students’ choices and the higher education market overall.
On balance, the public interest weighs in favour of withholding the relevant information, therefore, the exemptions 31(1)(g) and 31(2)(c) of the FOIA have been applied.
As mentioned earlier in this letter, we can neither confirm nor deny whether the OfS is formally investigating Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College. We consider it to be exempt from disclosure under FOIA:
Section 31: specifically, sections 31(1)(g), 31(2)(c) and 31(3) which, read together, confirm that a public authority can refuse to confirm or deny holding relevant information, if to do so would, or would be likely to, risk undermining the ability of a regulator to go about its work.
Public authorities usually have a duty to confirm or deny whether the information requested is held under section 1(1)(a) of the FOIA. However, there are occasions when complying with the duty to confirm or deny would in and of itself disclose sensitive or potentially damaging information that falls under an exemption. In these circumstances, the Act allows a public authority to respond by refusing to confirm or deny whether it holds the requested information.
As stated in our ‘Regulatory advice 18: Notifications about providers from third parties’4, paragraph 11: “…there are often circumstances in which confirming or denying that we are investigating a concern could interfere with our ability to investigate effectively, for example by tipping off a provider about our interest.”
As advised, when we believe it is applicable to disclose information relating to regulatory matters, we will publish the information on our website5. Section 31 of FOIA relieves a public body from releasing information if its disclosure under the FOIA would, or would be likely to, prejudice law enforcement, this includes regulatory action.
Specifically, section 31(1)(g) relates to the exercise by any public authority of its functions for any of the purposes specified in subsection (2). The applicable purpose here is specified in section 31(2)(c): the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise. Section 31(3) states that “[t]he duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1)”.
This means that the OfS can refuse to confirm or deny whether the OfS is formally investigating Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College, if to do so would risk undermining the ability of the OfS to perform its regulatory work. Our view is that disclosure of such information would be likely to risk undermining the ability of the OfS to perform its regulatory work.
In determining whether disclosure of the type of information requested is exempt under section 31 of the FOIA the following factors were considered relevant:
The information disclosed when an investigation is conducted is often sensitive and confidential. By disclosing information relating to investigations the OfS would be breaching that confidence.
Furthermore, to confirm or deny whether the OfS is formally investigating a provider (where an investigation exists) would mean that providers of higher education more generally would be less likely to cooperate with the OfS in the future. This in turn would make the OfS less effective in its role as the regulator, which would not be in the interests of students.
For these reasons, the OfS is of the view that disclosure of the requested information would be likely to prejudice the OfS’s regulatory activities.
Section 31 is subject to the public interest test. This means that not only does the information have to prejudice one of the purposes listed, but also that the public interest in preventing that prejudice must outweigh the public interest in disclosure before the information can be withheld. The factors set out above in relation to the prejudice caused by disclosure are also relevant to considering the public interest.
4 See Regulatory advice 18: Notifications about providers from third parties, available at: media/8e09f778-cd12-49fd-92c3-53bbb7f705db/ra18-draft-third-party-notifications-guidance.pdf
5 Our press and media page is available at:
There is a public interest in transparency of the OfS’s regulatory activities.
There is a public interest in accountability.
There is a strong public interest in ensuring that the OfS is able to carry out its regulatory functions effectively and ensuring that any monitoring and intervention, including any investigations, is not undermined for the detailed reasons noted above. The ICO has confirmed that it considers that, “if an exemption is designed to protect against prejudice, there will always be a substantial public interest in preventing that prejudice from occurring”6.
Disclosing whether a formal investigation relating to Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College is underway would be likely to result in less engagement from providers which would prejudice the OfS’s ability to carry out its regulatory functions. As stated earlier in this letter, the OfS already publishes details of regulatory action it takes. Where the factors in favour of publication outweigh the factors against, the OfS will publish regulatory decisions on its website, which reduces the public interest in further transparency, as acknowledged by the ICO.
On balance, the public interest weighs in favour of neither confirming nor denying whether the OfS is formally investigating Moorlands College, Elim Foursquare Pentecostal Alliance and Christ the Redeemer College. The public interest in transparency and accountability more generally is served by publicly available information relating to how the OfS performs its functions to regulate providers and the published outcomes of its regulatory activities. As such, we can neither confirm nor deny whether we hold this information and instead the exemption in Section 31(1)(g), Section 31(2)(c) and Section 31(3) of the Act is engaged.
6 See ICO guidance regarding the prejudice test here:
If you think that an exemption has been wrongly applied or you are otherwise dissatisfied with our response you may submit an appeal to the OfS’ for an internal review. We will need to receive your appeal within forty working days of your receipt of this letter. After this time, we will consider your request for information closed.
Should you wish to appeal, please write to:
Freedom of Information Officer Office
BS34 8SR
Please state the reasons for your appeal. We will contact you to advise you of the outcome. Further details of our internal review are available on our website:
A printed copy is available on request.
Under section 50 of the Freedom of Information Act you have the right to complain to the Information Commissioner if you believe that your request has not been handled correctly. The Information Commissioner will not consider your complaint unless you have first been through our appeals process. The Information Commissioner can be contacted at:
You can find out more about the Freedom of Information Act and how it affects you, from the Information Commissioner’s website: .
Written evidence from National Secular Society, (NSS) (WOS0012)
Lord James Wharton Chair, Office for Students
14 December 2022
Dear Lord Wharton,
We wrote to you on 10 March 2022 to raise the issue of number of specialist Theological Colleges registered with the OfS which we consider are in breach of their terms of registration, and as quite possibly the Equalities Act. You advised that the appropriate way for these complaints to be investigated is to submit third-party notifications.
Following your advice, we submitted notifications against three Theological Colleges: Moorlands College (October 2021 with an addendum in January 2022), Christ the Redeemer College London (April 2022), and Regents Theological College (Elim FourSquare Gospel Alliance) (April 2022). In the interim, a fourth specialist Theological College (Oakhill), which we also considered to be in breach of its terms of registration with the OfS, voluntarily withdrew its registration and ceased to accept public funds, presumably recognising it could not comply with the terms set out by the OfS.
We draw your attention to the following areas in which the Colleges appear to be in breach of the Public Interest Governing Principles which all HE providers registered with the OfS and in receipt of public funds must comply with.
As far as we can ascertain, the OfS executive has not begun an investigation, let alone published a conclusion. In August 2022 we submitted a Freedom of Information to the OfS request enquiring about progress with their investigation of our notifications. In response the OfS
provided no information and stated they would ‘neither confirm nor deny’ whether an
investigation is ongoing.
A failure to investigate complaints in a timely fashion (it has now been over a year since our first notification was submitted) and a lack of transparency are inappropriate for a government regulator, especially since the Post-16 Skills Act (2022) included a clause which specifically gave the OfS protection from publishing the outcomes of its investigations, demonstrating the
Minister’s intent. Additionally, a lack of transparency is not in the interests of the students and staff of the majority of HE providers who strive to meet the terms of registration and spend public funds wisely.
We therefore ask the Board, through your agency, to ensure the executive undertake a thorough and effective investigation of these complaints. We would be grateful if you could you confirm when the outcomes are likely to be in the public domain.
Thanking you in anticipation, Yours sincerely,
04 April 2023
Written evidence from National Secular Society, (NSS) (WOS0012)
Stephen Evans Chief Executive National Secular Society
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5 January 2023
Dear Mr Evans
Thank you for your letter of 14 December 2022 drawing the three notifications you have submitted to the OfS to my attention.
The OfS takes matters relating to freedom of speech and academic freedom very seriously and these issues form one of the strategic goals in our new strategy. You may also find it helpful to know that, subject to the will of Parliament, we expect to receive new powers in relation to freedom of speech matters and the implementation of those powers will provide us with an opportunity to consider the approach we should take to regulation in this area into the future.
The OfS’s notification system was the correct way for you to raise your concerns about these particular higher education providers and I thank you for the information you provided to us. We take all information we receive seriously, and our regulation team has considered these notifications carefully in the normal way and on the basis set out in our published guidance.
I must reiterate that the OfS is not a complaint handling body, and we do not have a remit to investigate individual complaints we receive. We use information provided to us by third parties, such as the National Secular Society, to inform our view about whether a registered provider may be at risk of breaching our conditions of registration.
We are not able to keep individual notifiers updated on the approach we have taken to a notification or the outcome of the issue raised. Our reasons for this are set out in Regulatory Advice 18.1
1
Chair – Lord Wharton of Yarm Chief Executive – Susan Lapworth
You note in your letter that section 67A of the Higher Education and Research Act 2017 provides the OfS with the powers to publish information about its investigations. This is right, but we are not required by those provisions to publish information in any particular situation.
The OfS will continue to use the intelligence we receive to identify those providers that may be in breach of our conditions of registration and, where appropriate, act accordingly. Should you become aware of further information that would help the OfS in this regard, I would encourage you to continue to share this via the notifications system.
Yours sincerely
Lord Wharton of Yarm Chair
04 April 2023
Written evidence from National Secular Society, (NSS) (WOS0012)
The Rt Hon Robert Halfon MP
Minister of State (Minister for Higher Education)
27 January 2023
Dear Minister,
I am writing to ask you to intervene to ensure the Office for Students (OfS) undertakes its responsibilities to the Higher Education (HE) sector in a robust and transparent manner, particularly regarding Freedom of Speech and Academic Freedom.
By way of introduction, the National Secular Society is an independent organisation founded in 1866 to advocate and promote a secular state in which people of all religions and none can live together fairly and cohesively.
We have identified several independent theological colleges which appear to be in breach of several of their conditions of registration with the OfS.
We advised the OfS of our findings and were asked to submit detailed ‘third party notifications’ outlining our concerns and we did so, citing Moorlands Theological College (October 2021 with an addendum in January 2022), Christ the Redeemer College London (April 2022), and Regents Theological College (Elim Foursquare Gospel Alliance) (April 2022). The regulations that we consider are being breached are Public Interest Governance Principles that all HE providers registered with the OfS are required to meet: ‘Freedom of Speech and Academic Freedom’, ‘Access and
Participation’, ‘Governing Bodies’ and ‘Value for Money’ – see addendum below for further details.
As far as we can ascertain, in more than a year the OfS has
failed to address the serious issues we have raised.
In August 2022 we submitted a Freedom of Information request to the OfS enquiring about progress in addressing our notifications, and in response the OfS simply stated they would ‘neither confirm nor deny’ whether an investigation is ongoing. In December 2022 we wrote again to the Chair, Lord Wharton, who made it clear the OfS has no intention of informing us about its response or any
actions taken following our ‘third party notifications’. He suggests that, subject to the will of Parliament, the OfS expects to receive new powers in relation to freedom of speech. However, the OfS already has powers to register and deregister HE providers that do not meet the conditions of registration. We are aware of one independent theological College, Oakhill, which recognised it could not meet the terms of registration with the OfS and so voluntarily deregistered and ceased to accept public funds.
We believe the OfS is failing to meet the transparency requirements expected of a public regulatory body. If these theological colleges can apparently breach the terms of OfS registration with impunity, and continue to receive public funds, how are our many responsible universities and colleges meant to engage with and respect the OfS? If the OfS considers these theological colleges are not in breach of their terms of registration, then they must explain why so that other institutions understand the regulatory parameters within which they are expected to operate as registered HE providers.
We know that you are personally committed to ensuring Freedom of Speech and Academic Freedom in our colleges and universities, and to ensuring fair and open access and value for money in our HE providers. During an Education Committee meeting on Free speech in English universities on 7 September last year, you asked: “Are Universities acting like the Taliban and choosing to ban books?” These independent theological colleges are acting like theocracies in restricting Academic Freedom and Freedom of Speech for staff and students in accord with their particular doctrine. We have also presented evidence to the OfS of a female student who was bullied and expelled from one of these theological colleges because her sexual behaviour did not conform to their religious doctrine.
We understand that the Russell Group of universities has called for a parliamentary inquiry into whether the OfS is fulfilling its remit. In our view, a regulator that lacks transparency cannot command confidence that it is working effectively and efficiently.
We would therefore urge you to ensure that the OfS fulfils its responsibilities in a transparent manner by addressing the issues we have raised, and either deregisters these Colleges, ensure compliance with the terms of registration, or makes clear why it considers these institutions are not in breach of the terms.
Your sincerely
Stephen Evans
Chief Executive Officer
The four key issues for which Independent theological colleges appear to be in breach of the terms of OfS registration.
1. Academic freedom and freedom of speech. Some independent theological colleges require staff and students to conform to governing documents which severely restrict their academic freedom and freedom of speech. Staff and students can be required to sign
'statements of faith’ as a condition of employment or admission.
2. Access and participation. A loophole in the Equality Act (2010) permits specialist Theological Colleges to discriminate when admitting students and appointing staff on grounds of faith, but only for students studying divinity for ordination and not for other protected characteristics such as sexuality or race. Some theological colleges are now offering subjects other than divinity, and some discriminate against students on grounds of sexuality, and so appear to be in breach of the Equality Act (2010).
3. Governing bodies - some theological colleges appoint governors because of their leadership position in the Church which owns and operates the College, rather than a skills basis. Not only is this inconsistent with Nolan Principles of Public Life, but it creates a direct conflict of interest, both financial and between the individuals’ role in the church and their responsibility to the students' education.
4. Value for money. Several theological colleges are registered charities, not exempt charities like universities, and their primary financial regulator is the Charity Commission. They therefore avoid the rigorous financial scrutiny which the DfE generally gives public funds earmarked for educational purposes in universities and most colleges. Our research suggests that some churches which operate theological colleges do not separate their general funds from those provided by the public purse for educational purposes. The OfS requires that HE providers demonstrate value for money as a condition of registration but are failing to assure these colleges meet this condition of registration.
04 April 2023
Written evidence from National Secular Society, (NSS) (WOS0012)
2023-0004967RHPO
The Rt Hon Robert Halfon MP
Minister for Skills, Apprenticeships and Higher Education
Stephen Evans
CEO, National Secular Society
23 February 2023
Dear Mr Evans,
Thank you for your email of 30 January, setting out your concerns about the manner in which the Office for Students (OfS) conducts investigations.
I should be clear that this is a matter for the OfS. The OfS has stated that it can neither confirm nor deny whether an investigation is ongoing into a particular institution. The department cannot offer any further information about OfS investigations. I appreciate that this may be a disappointing response, however, as the regulator for higher education (HE) in England, the OfS is an autonomous institution, and it is of paramount importance that it should remain so.
With regards to freedom of speech and academic freedom in HE institutions, you may be aware that we are in the process of taking the HE (Freedom of Speech) Bill through Parliament. The Bill completed its passage through both Houses on 13 December 2022, returned to the House of Commons for Commons Consideration of Lords Amendments on 7 February, and will return to the House of Lords in due course.
The Bill confers new powers upon the OfS to investigate when HE providers and students’ unions have breached their freedom of speech duties. A Director for Freedom of Speech and Academic Freedom will oversee a new scheme dedicated to managing freedom of speech complaints. Individuals can use the scheme to seek compensation and other forms of redress where they have had their rights unlawfully restricted. The government will be working closely with the OfS to ensure that the new scheme rules and processes are clear and accessible.
Thank you for writing on this important matter.
Yours sincerely,
The Rt Hon Robert Halfon MP
Minister for Skills, Apprenticeships and Higher Education
04 April 2023