Office for Students
Consultation

Consultation on proposed regulatory advice and other matters relating to freedom of speech

Published 26 March 2024

Introduction

  1. The Act will impose new duties on providers in relation to freedom of speech and academic freedom, and on their constituent institutions.
  2. In brief, the new duties will require the governing body of each provider and constituent institution:
    1. To take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to secure freedom of speech within the law for its staff, members, students and visiting speakers; this includes, in relation to academic staff, securing their academic freedom (section A1 and section A4 of Part A1 of HERA).
    2. To maintain a code of practice setting out matters relating to freedom of speech (section A2 and section A4 of Part A1 of HERA).
    3. To promote the importance of freedom of speech within the law and of academic freedom for academic staff, in the provision of higher education (section A3 and section A4 of Part A1 of HERA).
  3. These duties are expected to come into force on 1 August 2024. They are set out in full in the Act.16 In this document and in the annexed guidance, we refer to the duty described in paragraph 19a as the ‘secure’ duty for providers and constituent institutions. We refer to the duty described in paragraph 19b as the ‘code’ duty for providers and constituent institutions. We refer to the duty described in paragraph 19c as the ‘promote’ duty for providers and constituent institutions.

16 See www.legislation.gov.uk/ukpga/2023/16/enacted.
 In this document and in the annexed guidance, we refer to the duty described in paragraph 19a as the ‘secure’ duty for providers and constituent institutions. We refer to the duty described in paragraph 19b as the ‘code’ duty for providers and constituent institutions. We refer to the duty described in paragraph 19c as the ‘promote’ duty for providers and constituent institutions.

  1. Freedom of speech and academic freedom are fundamental to higher education. The core mission of universities and colleges is the pursuit of knowledge. The principles of free speech and academic freedom are fundamental to this purpose. They provide a necessary context for advancing new ideas, encouraging productive debate and challenging conventional wisdom.8
  2. All staff and students are entitled to teach, learn and research in a culture that values vigorous debate. This is especially true in relation to difficult or contentious or discomforting topics.
  3. As the statutory regulator for higher education in England, the OfS aims to ensure that every student, whatever their background, has a fulfilling experience of higher education that enriches their life and career. In March 2022, we published our strategy for 2022 to 2025. There we described the two key areas of focus for this period that will inform our regulatory activity: quality and standards; and equality of opportunity.
  4. Students will not have a high quality education if that education is not grounded in freedom of speech. That includes freedom of speech for themselves, for fellow students, for those who teach or supervise them and for visiting speakers.
  5. As a priority for our activities focusing on quality and standards, we have set a goal that ‘providers secure free speech within the law for students, staff and visiting speakers’.9

8 In this consultation, we use the terms ‘free speech’ and ‘freedom of speech’ interchangeably.

9 See www.officeforstudents.org.uk/publications/office-for-students-strategy-2022-to-2025/.

  1. Most of the universities and colleges that are registered with the OfS are ‘public bodies’ for the purposes of the Human Rights Act 1998. It is unlawful for them as public bodies to act incompatibly with the European Convention on Human Rights (the ‘ECHR’). Article 10 of the ECHR relates to freedom of expression.10
  2. Section 43 of the Education (No 2) Act 1986 requires universities and colleges to ‘take such steps as are reasonably practicable’ to ensure that freedom of speech within the law is secured for their members, students, employees and visiting speakers.11
  3. Universities and colleges must comply with the requirements of equality law. The relevant provisions relate to a set of ‘protected characteristics’ set out in the Equality Act 2010. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Among other things the Act requires universities, and their employees when acting as such, not to discriminate against or harass someone because of a protected characteristic, including religion or belief.12
  4. Currently, the OfS regulates providers on matters relating to free speech through relevant ‘public interest governance principles’. These underpin the initial and ongoing conditions of registration relating to management and governance (the ‘E conditions’) that providers registered with the OfS must meet. You can read more about these requirements in our regulatory framework.13
  5. New legislation will replace section 43 of the Education (No 2) Act 1986 for providers and will strengthen the OfS’s regulatory role on free speech matters. We explain this below.

10 See https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/9.

11 See https://www.legislation.gov.uk/ukpga/1986/61/section/43.

12 See https://www.legislation.gov.uk/ukpga/2010/15/contents.

13 Throughout this document, ‘providers’ and ‘registered providers’ refers to registered higher education providers as specified on the OfS’s Register www.officeforstudents.org.uk/register/. To see the regulatory framework, visit www.officeforstudents.org.uk/publications/securing-student-success-regulatory-framework-for-higher-education-in-england/. A summary of the public interest governance principles is available at www.officeforstudents.org.uk/advice-and-guidance/regulation/registration-with-the-ofs-a-guide/public-interest-governance-principles/.

  1. New legislation will strengthen the legal requirements on providers and introduce new requirements for their constituent institutions and for some students’ unions, relating to freedom of speech. For providers and their constituent institutions, this will include requirements relating to academic freedom. A ‘constituent institution’ means any constituent college, school, hall or other institution of the provider. For example, the individual colleges of the University of Cambridge are constituent institutions of that university.14
  2. The new legislation will also strengthen the OfS’s regulatory role in relation to freedom of speech and academic freedom.
  3. The new legislation is the Higher Education (Freedom of Speech) Act 2023 (the ‘Act’).15 The Act received Royal Assent on 11 May 2023. However, most of the provisions of the Act are not yet in force. They will come into force through secondary legislation. We expect this implementation to be phased over 2024 and 2025, although the precise dates are a matter for the Secretary of State for Education.
  4. The Act amends the Higher Education and Research Act 2017 (‘HERA’) to incorporate new provisions relating to freedom of speech and academic freedom. In this document, we refer to the sections of the amended version of HERA rather than to the corresponding sections of the Act.

14 See section A4(4) of Part A1 of HERA.

15 The Higher Education (Freedom of Speech Act) 2023 is available at https://www.legislation.gov.uk/ukpga/2023/16/enacted.

  1. The Act protects freedom of speech within the law. Unlawful speech is not protected. This means that speech that amounts to unlawful harassment, victimisation or discrimination is not protected. Similarly, unlawful incitement of religious or racial hatred, or speech that is otherwise unlawful, is not protected.

  1. ‘Freedom of speech’ is defined in the Act as:

Part A1 of HERA

Section A1 (13) In this Part —

references to freedom of speech are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the [European Convention on Human Rights] as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form)[.]

  1. Academic freedom is defined in the Act as:

Part A1 of HERA

Section A1 (6) In this Part, ‘academic freedom’, in relation to academic staff at a registered higher education provider, means their freedom within the law—

(a) to question and test received wisdom, and

(b) to put forward new ideas and controversial or unpopular opinions,

without placing themselves at risk of being adversely affected in any of the ways described in subsection (7).

Section A1 (7) Those ways are—

(a) loss of their jobs or privileges at the provider;

(b) the likelihood of their securing promotion or different jobs at the provider being reduced.

  1. The Act will also impose new duties on some students’ unions. A ‘students’ union’ is defined in the Act as:

Part A1 of HERA

Section A5(6) In this Part—

[…]‘students’ union’, in relation to any institution, has the same meaning as it has in Part 2 of the Education Act 1994 in relation to establishments to which that Part applies (see section 20 of that Act).

Section A5(7) In this Part, references to a students’ union for students at a registered higher education provider that is eligible for financial support do not include a students’ union for students at a constituent institution of such a provider.

Education Act 1994

Section 20 (1) In this Part a ‘students’ union’ means—

(a) an association of the generality of students at an establishment to which this Part applies whose principal purposes include promoting the general interests of its members as students; or

(b) a representative body (whether an association or not) whose principal purposes include representing the generality of students at an establishment to which this Part applies in academic, disciplinary or other matters relating to the government of the establishment.

(2) References in this Part to a students’ union include an association or body which would fall within subsection (1) if for the references to the generality of students at the establishment there were substituted a reference to—

(a) the generality of undergraduate students, or graduate students, at the establishment; or

(b) the generality of students at a particular hall of residence of the establishment.

(3) References in this Part to a students’ union include an association or body which consists wholly or mainly of—

(a) constituent or affiliated associations or bodies which are themselves students’ unions within subsection (1) or (2), or

(b) representatives of such constituent or affiliated associations,

and which fulfils the functions of a students’ union within subsection (1) or (2) in relation to students at an establishment to which this Part applies.

(4) An association or body may be a students’ union within the meaning of this Part in relation to more than one establishment but not in relation to establishments generally in the United Kingdom or a part of the United Kingdom.

(5) References in this section to an association of the generality of students, or of any description of students, include—

(a) any association which the generality of students, or of students of that description, may join, whether or not it has in membership a majority of them, and

(b) any association which would fall within paragraph (a) if the references there to students were confined to full-time students;

and references to a representative body whose principal purposes include representing the generality of students, or of any description of students, shall be similarly construed.

Section 21 (1) The establishments in England and Wales to which this Part applies are—

(za) any registered higher education provider of a description prescribed by regulations made for the purposes of section 39(1) of the Higher Education and Research Act 2017;

(a) any university receiving financial support under section 65 of the Further and Higher Education Act 1992;

(b) any institution in Wales conducted by a higher education corporation or further education corporation within the meaning of that Act;

(ba) any sixth form college;

(c) any institution designated under section 129 of the Education Reform Act 1988 as eligible to receive support from funds administered by a higher education funding council;

(d) any institution designated under section 28 of the Further and Higher Education Act 1992 as eligible to receive support from funds administered by a further education funding council;

(e) any institution substantially dependent on financial support under section 6(5) of that Act (certain institutions providing facilities for part-time, or adult, further education);

(f) any institution designated, or of a description designated, by order of the Secretary of State;

(g) any college, school or hall in an establishment within any of the above paragraphs.

  1. The new duties will apply only to students’ unions of providers that are registered in the Approved (fee cap) category of the OfS Register.17 Higher education providers registered with the OfS, are registered in one of two categories: Approved and Approved (fee cap). Providers registered in the Approved (fee cap) category are eligible for certain benefits. See our website for more detail.18 In this document, we refer to those students’ unions as ‘relevant students’ unions’.
  1. The new duties for relevant students’ unions will require each relevant students’ union:
  1. To take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to secure freedom of speech within the law for its members and staff, for students of the associated provider(s), for members of staff of the associated provider(s) and of its constituent institutions and for visiting speakers (section A5 of part A1 of HERA); and
  2. To maintain a code of practice setting out matters relating to freedom of speech (section A6 of part A1 of HERA).
  1. These duties are expected to come into force on 1 August 2024. They are set out in full in the Act. In this document and in the annexed guidance, we refer to the duty described in paragraph 23a as the ‘secure’ duty for relevant students’ unions. We refer to the duty described in paragraph 23b as the ‘code’ duty for relevant students’ unions.

17 This is because section A5(1) of Part A1 of HERA states that these duties apply to ‘a students’ union for students at a registered higher education provider that is eligible for financial support’. For more about the OfS’s categories of registration, see www.officeforstudents.org.uk/advice-and-guidance/regulation/registration-with-the-ofs-a-guide/.This is because section A5(1) of Part A1 of HERA states that these duties apply to ‘a students’ union for students at a registered higher education provider that is eligible for financial support’. For more about the OfS’s categories of registration, see www.officeforstudents.org.uk/advice-and-guidance/regulation/registration-with-the-ofs-a-guide/.

18 See www.officeforstudents.org.uk/advice-and-guidance/regulation/registration-with-the-ofs-a-guide/benefits-of-registration/.

  1. The Act will also strengthen the OfS’s regulatory role in relation to freedom of speech and academic freedom. This will include:
  1. New general duties for the OfS, under section 2 of HERA, relating to freedom of speech and academic freedom.
  2. New general functions for the OfS relating to freedom of speech and academic freedom.
  3. A new complaints scheme, operated by the OfS, to review and determine free speech complaints about providers, constituent institutions or relevant students’ unions, from present or former students, members, members of staff, applicants for academic posts or (actual or invited) visiting speakers.
  4. An extension of the OfS’s regulation on free speech matters to apply directly to relevant students’ unions.
  5. New conditions of registration for providers relating to free speech and academic freedom. These will include conditions requiring providers to comply with their new free speech duties referred to above. This will give the OfS a direct role in determining whether providers are meeting those statutory duties.
  6. Powers for the OfS to monitor overseas funding received by providers, constituent institutions and relevant students’ unions, with a view to assessing the extent to which that funding may present a risk to free speech and academic freedom.

  1. The provisions relating to the OfS’s new general duties and general functions (a. and b. in paragraph 25 above) are expected to come into force on 1 August 2024. This consultation sets out proposals on these matters.
  2. The provisions relating to the new free speech complaints scheme and the extension of the OfS’s regulation on free speech matters to relevant students’ unions (c. and d. in paragraph 25 above) are expected to come into force on 1 August 2024. We published our consultations19 relating to the proposals for the new free speech complaints scheme and the regulation of students’ unions on free speech matters in December 2023.
  1. The provisions relating to the new conditions of registration and the OfS’s monitoring of overseas funding (e. and f. in paragraph 25 above) are expected to come into force on 1 September 2025.
  2. The expected timings referred to in paragraphs 26-28 are subject to the Secretary of State for Education making commencement regulations.

19 See www.officeforstudents.org.uk/consultations-on-free-speech/.

  1. Our proposals in this consultation relate to the following:
    1. Guidance on the duties related to freedom of speech academic freedom.
    2. Amendments to the regulatory framework to reflect the OfS’s new general duties and general functions.
    3. The OfS’s recovery of costs in connection with the new free speech complaints scheme and the imposition of monetary penalties on students’ unions.
  2. We are proposing to include in our guidance examples designed to help a provider, constituent institution or relevant students’ union understand how the guidance should be applied. In all of the proposed examples we have been clear that the decision about any similar case would depend on the particular circumstances of the case.

  1. When developing our proposals, we have carefully considered the matters to which we must have regard, including: our general duties in section 2 of HERA, the Regulators’ Code, the Public Sector Equality Duty and statutory guidance issued by the Secretary of State. Our assessment of these matters is set out in Annex D.

  1. We welcome responses from anyone with an interest in freedom of speech in English higher education. We are particularly (but not only) interested in hearing from students, staff, students’ union representatives and leaders at providers that will be engaging in the new arrangements. We welcome views from all types and size of provider and students’ union. We also welcome the views of schools, employers, third sector organisations, policy bodies and others with an interest in freedom of speech in English higher education.
  2. The consultation questions are listed in full in Annex A.
Published 26 March 2024
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