Office for Students
Consultation

Consultation on the OfS’s new free speech complaints scheme

Published 14 December 2023

Introduction

  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. 9
  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 wants every student to have a fulfilling and enriching experience of higher education. 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’.10

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

[10] See '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.11
  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.12
  3. 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
  4. 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.

[11] See Article 10 of the ECHR.

[12] See Section 43 of the Education (No 2) Act 1986.

[13] Throughout this document, ‘providers’ and ‘registered providers’ refers to registered higher education providers as specified on the OfS’s Register. To see the regulatory framework, visit 'Securing student success: Regulatory framework for higher education in England'. A summary of the public interest governance principles is available on the OfS website.

  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 the next two years, although the precise dates are a matter for the Department of 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) in Part A1 of HERA.

[15] The Higher Education (Freedom of Speech Act) 2023 is available online.

  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 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

[16] See the Higher Education (Freedom of Speech) Act 2023.

  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.

  1. The new duties will only apply to students’ unions of providers that are registered in the ‘Approved (fee cap) category’ (see section 20(1)(b) of the Education Act 1994).17 Higher education providers registered with the Office for Students, 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’.
  2. 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, students, staff, members and staff of the provider and of its constituent institutions and 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).
  3. These duties are expected to come into force on 1 August 2024. They are set out in full in the Act.

[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 our introduction to registration with the OfS.

[18] See our webpage on the 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 consider 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 24 above) are expected to come into force on 1 August 2024. We expect to consult on those matters in 2024.
  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 24 above) are expected to come into force on 1 August 2024.
  3. The provisions relating to the new conditions of registration and the OfS’s monitoring of overseas funding (e. and f. in paragraph 24 above) are expected to come into force on 1 September 2025.
  4. In this consultation, we have set out our proposals relating to the new free speech complaints scheme. We are also now consulting on proposals relating to our regulation of relevant students’ unions on free speech matters.19

[19] Our consultation on proposals relating to the OfS regulation of relevant students’ unions on free speech matters is available online.

  1. Our proposals relating to a new free speech complaints scheme are described in detail in the ‘proposals’ section of this document. The new free speech complaints scheme will help us achieve our strategic goal that ‘providers secure free speech within the law for students, staff and visiting speakers’.
  2. In this consultation, we are seeking views on our proposed approach to designing and implementing the new complaints scheme. In setting out our proposed approach, we have also explained alternative options that we have considered and discounted.
  3. We have not considered alternative proposals to the introduction of a free speech complaints scheme. We are not seeking views on whether we should introduce such a scheme. This is because the Act requires us to implement it.
  4. In summary, our proposals relating to the new free speech complaints scheme are:
    1. Proposal A: What a free speech complaint is 
    2. Proposal B: Who can complain?
    3. Proposal C: Complaints that we will not review 
    4. Proposal D: Time limits 
    5. Proposal E: Submitting a complaint 
    6. Proposal F: Reviewing a complaint 
    7. Proposal G: Our decision and Notice of Complaint Outcome
    8. Proposal H: Recommendations and suggestions
    9. Proposal I: Suspension and withdrawal of a complaint 
    10. Proposal J: Group complaints 
    11. Proposal K: Representations 
    12. Proposal L: Information requirements  
    13. Proposal M: A respondent's duty to comply 
    14. Proposal N: Advertising the complaints scheme 
    15. Proposal O: Charges, costs and fees
    16. Proposal P: Publication of information relating to the free speech complaints scheme

  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 C.

  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 14 December 2023
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