OfS proposes new guidance on freedom of speech

The guidance includes examples to illustrate what higher education providers may or will have to do to fulfil these duties. The examples also include scenarios to show where universities, colleges and students’ unions may have breached their free speech duties.

These include:  

• University A accepts international students on visiting scholarships funded by the government of country B. Scholars must accept the principles of the ruling party of country B, and direction from country B’s government via consular staff. Depending on the circumstances, these arrangements may undermine free speech and academic freedom at University A. If so, that university is likely to have to terminate or amend the scholarship agreement.
• Institute A in University B is jointly funded by University B and a commercial entity based in a foreign country C. Some staff at Institute A are appointed through a process managed within country C. This process imposes an ideological test as a condition of appointment and employment. Depending on the circumstances, these arrangements may penalise applicants to academic posts for their exercise of academic freedom. They may also have the effect of restricting the free speech and academic freedom of students and staff at University B. In these circumstances, it is likely that University B must terminate or amend these arrangements.
• University A’s student handbook states: ‘Misgendering is never acceptable. You must always address or refer to a person using their preferred pronouns.’ Depending on the facts of the case, University A’s rule is very likely to restrict freedom of speech within the law. (For instance, a student writing a dissertation in criminology might refer to trans women as ‘he’ because the student considers this necessary for clarity.) If so, University A is likely to have to remove this blanket rule.
• University A requires that all teaching materials on British history will represent Britain, and British foreign policy, in a positive light. In so far as this requirement suppresses a particular viewpoint, it is likely that University A would have to remove it.

From August, a new free-to-use complaints scheme will be available for students, staff and visiting speakers who believe there have been restrictions on their lawful free speech. If the OfS upholds a complaint it can make recommendations on redress for the complainant.

Alongside the guidance, the OfS is also consulting on changes to its regulatory framework to reflect the OfS’s new duties and functions on free speech and academic freedom.

Commenting, Arif Ahmed, Director for Freedom of Speech and Academic Freedom at the OfS, said:

'Higher education in England is renowned across the world. An absolutely fundamental element of education is the free exchange of ideas, including those that may be controversial, shocking or offensive. While we will judge each case on its facts and with an open mind, this guidance is designed to help universities, colleges and students’ unions navigate their new free speech duties. It provides a range of practical steps to secure freedom of speech within the law.

'While universities and colleges have been subject to statutory requirements for freedom of speech since the 1986 Education (no. 2) Act came into force, it is important that they – alongside students’ unions – are properly prepared for the new requirements. This guidance gives them the opportunity to consider their current policies, procedures and practices and to take all the additional steps that they must take to secure this most fundamental of rights.'

The consultation is open until 26 May 2024.