The Office for Students (OfS), which regulates the higher education sector in England, has issued final regulatory advice on how universities and colleges must comply with the Higher Education (Freedom of Speech) Act 2023. Published this week, the document outlines the approach the regulator will adopt when assessing institutions’ compliance with their legal duties, including the core requirement to take “reasonably practicable steps” to secure freedom of speech within the law. In both its legal interpretation and its regulatory expectations, the guidance marks a substantial and, in some respects, unexpected shift.
At its core is a principle the Free Speech Union pressed for during the consultation: that speech is presumptively lawful unless specifically prohibited by statute or common law. The guidance confirms that internal policies, institutional values, or codes of conduct – including equality, diversity and inclusion (EDI) frameworks – do not have the force of law and cannot justify restrictions on otherwise lawful expression.
This carries significant implications. Universities must now approach questions of freedom of speech through a three-step framework. First, is the speech lawful? If so, second, are there any “reasonably practicable steps” the institution can take to secure it? The OfS makes clear that this is no box-ticking exercise. A wide range of measures – including what the guidance refers to as “negative steps”, such as declining to investigate frivolous complaints from the perennially offended, removing restrictive policies, or simply allowing an event to proceed – may fall within the scope of what is “reasonably practicable”. Crucially, the guidance emphasises that concerns about reputational risk, institutional values, or the offensiveness of a viewpoint are not valid grounds for withholding protection. Unless allowing the speech would interfere with an essential university function, institutions are under a positive legal duty to facilitate it. Only where no such steps are available should the third stage be reached: assessing whether the restriction would be lawful and proportionate under Article 10 of the European Convention on Human Rights.
The guidance also offers detailed illustrations across a wide range of university functions – including hiring and promotion, event management, disciplinary processes, codes of conduct, and the use of anonymous reporting mechanisms that risk suppressing lawful expression under vague categories such as “microaggressions”. Universities will be expected, for instance, to remove political litmus tests from recruitment and promotion processes, such as requirements to submit personal statements affirming commitment to EDI. They are also advised to triage complaints early to prevent vexatious or politically motivated investigations, and to ensure that speech is not curtailed merely because it is controversial, unpopular, or offensive to some.
Alongside the guidance, the government has confirmed that the OfS will soon be empowered to operate a new complaints scheme, albeit with a narrower remit than originally envisaged, following Education Secretary Bridget Phillipson’s decision last year to stop commencement of the Act as passed, opting instead for a watered-down version that strips out key enforcement mechanisms. The scheme will now cover staff and visiting speakers, but not students, who will remain under the jurisdiction of the Office of the Independent Adjudicator. Nor will it extend to students’ unions, which were excluded from the Act’s statutory duties following Ms Phillipson’s intervention. Nonetheless, universities and colleges will remain accountable for protecting free speech across their campuses, and the OfS is likely to regard robust oversight of students’ unions as a “reasonably practicable step” in fulfilling this duty.
The publication of this guidance represents a clear setback for the higher education lobby that had sought to preserve a discretionary framework in which duties under the Equality Act 2010 – particularly the Public Sector Equality Duty and protections against harassment – could be interpreted as overriding the statutory duty to secure freedom of speech. For too long, that approach has enabled universities to curtail lawful but contentious viewpoints and to impose professional penalties that have chilled the exercise of academic freedom as defined in law. Whether the new standards set out by the OfS can be sustained will depend, in large part, on the authority and resilience of the complaints scheme. Preserving that mechanism now becomes the next battleground in this regulatory contest.
