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.
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 Office for Students (OfS) wants every student to have a fulfilling experience of higher education that enriches their lives and careers. In March 2022, we published our strategy for 2022 to 2025, in which 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. Students’ unions provide an important context for students to engage with a range of ideas and debates alongside, and beyond the scope of, their studies. They play an integral role in securing freedom of speech in higher education.
6. 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
7. We have included a glossary of some of the key terms used in this document, in Annex E.

[9] In this consultation, we use the terms ‘free speech’ and ‘freedom of speech’ interchangeably. ‘Providers’ and ‘registered providers’ refer to registered higher education providers as specified on the OfS Register.
See our strategy for 2022 to 2025. 

8. 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
9. 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
10. Currently, the OfS regulates providers on free speech matters through the public interest governance principles on academic freedom and free speech, which underpin initial and ongoing conditions of registration relating to management and governance (the E conditions). Our regulatory framework states how the OfS intends to perform its various functions, and provides guidance for registered higher education providers on the ongoing conditions of registration. You can read more about these requirements in our regulatory framework.¹²
11. The OfS has not previously played a direct regulatory role in relation to students’ unions.

[10] See the Human Rights Act 1998.

[11] See Education (No. 2) Act 1986.

[12] See Securing student success: Regulatory framework for higher education in England.

12. 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. 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.
13. The new legislation will also strengthen the OfS’s regulatory role in relation to freedom of speech and academic freedom.
14. The new legislation is the Higher Education (Freedom of Speech) Act 2023 (‘the Act’). 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.
15. 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.

16. 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.

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

18. Academic freedom is defined in the Act as:

19. The Act will impose new duties on providers in relation to freedom of speech and academic freedom, and on their constituent institutions.
20. In brief, the new duties will require 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); and
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).

21. These duties are expected to come into force on 1 August 2024.¹³

[13] See these duties set out in full.

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

23. The new duties will only apply to students’ unions of providers that are registered in the ‘Approved (fee cap) category’.¹⁴ In this document, we refer to those students’ unions as ‘relevant students’ unions’.
24. 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).¹⁵
25. These duties are expected to come into force on 1 August 2024.¹⁶

[14] See the OfS Register. 

[15] See further section A6 in Part A1 of HERA as amended.

[16] See these duties set out in full. 

26. 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 students, staff (including applicants for academic posts) or 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.

27. The provisions relating to the OfS’s new general duties and general functions (a. and b. in paragraph 26 above) are expected to come into force on 1 August 2024. We expect to consult on those matters in 2024.
28. 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 26 above) are expected to come into force on 1 August 2024.
29. The provisions relating to the new conditions of registration and the OfS’s monitoring of overseas funding (e. and f. in paragraph 26 above) are expected to come into force on 1 September 2025.
30. In this consultation, we have set out our proposals relating to our regulation of relevant students’ unions on free speech matters. We are also separately consulting on our new free speech complaints scheme.¹⁷

[17] See our consultation on our new free speech complaints scheme.

31. Our proposals, relating to our regulation of relevant students’ unions in relation to free speech matters, are described in detail in each of the Proposals sections of this web guide.
32. In this consultation, we are seeking views on our proposed approach to regulating relevant students’ unions on free speech matters. In setting out our proposed approach, we have also explained alternative options that we have considered and discounted.
33. We have not considered alternatives to the regulation of relevant students’ unions, by the OfS, on free speech matters. This is because the Act will require us to regulate relevant students’ unions on free speech matters.
34. In summary, our proposals relating to the regulation of relevant students’ unions on free speech matters are:

1. Proposal A: Maintaining and making public a list of relevant students’ unions.
2. Proposal B: Guidance for relevant students’ unions about their free speech duties.
3. Proposal C: Monitoring relevant students’ unions.
4. Proposal D: Determining the amount of a monetary penalty.
5. Proposal E: Minor and consequential amendments to the regulatory framework.
6. Proposal F: The publication of information.

35. 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 the statutory guidance issues by the Secretary of State. Our assessment of these matters is set out in Annex D.
36. This document constitutes our consultation for the purposes of section 75(8) of HERA.

37. 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, students’ union representatives, and staff 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.
38. The consultation questions are listed in full in Annex A.

In this consultation we refer to the following documents and legislation:

• Education Act 1994 
• Education (No.2) Act 1986 
• Higher Education and Research Act 2017 
• Higher Education (Freedom of Speech) Act 2023 
• OfS strategy 2022 to 2025 
• Regulatory advice 15: Guidance on monitoring and intervention 
• Regulatory advice 16: Reportable events 
• Regulatory advice 19: The OfS’s approach to determining the amount of a monetary penalty 
• Regulatory advice 21: Publication of information
• Securing student success: Regulatory framework for higher education in England