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

35. We are proposing to publish the document in Annex B. The title of the document is ‘Regulatory advice 24: Guidance related to freedom of speech.’
36. Some of the subject matter in the proposed guidance overlaps with that of recent consultations. Those consultations cover the freedom of speech complaints scheme and our approach to regulating relevant students’ unions on free speech matters.²⁰ This includes material in the glossary and on our criteria for determining ‘reasonably practicable steps’. These overlaps are inevitable because the consultations deal with largely the same duties. Where relevant, we will consider comments on those issues made in response to those other consultations, when making decisions in relation to this consultation and vice versa. We will also ensure that our decisions are consistent.
37. The proposed document provides guidance to governing bodies of registered higher education providers and their constituent institutions, and to relevant students’ unions, about their free speech duties under the Higher Education (Freedom of Speech) Act 2023.²¹ It covers duties relating to:

1. securing freedom of speech within the law (the ‘secure’ duties)
2. the freedom of speech code of practice (the ‘code’ duties’).²²

38. The guidance starts by explaining ‘freedom of speech within the law’ and ‘reasonably practicable steps’. Freedom of speech is defined by statute.²³ Whether a step is reasonably practicable will depend on the specific circumstances. However, the guidance sets out some examples of steps which may, depending on the specific circumstances, be reasonably practicable for a provider, constituent institution or relevant students’ union to take.
39. The steps and examples cover the following subjects:
    • admissions, appointments, employment and promotion
    • codes of conduct
    • complaints and investigation processes
    • free speech code of practice
    • free speech complaints scheme
    • governance
    • research
    • speaker events
    • teaching
    • training and induction.
40. The core overarching aims and effect of the Higher Education (Freedom of Speech) Act 2023 include increasing the protection for, and the importance placed on, freedom of speech and academic freedom within the law in higher education. It is our firm view that the legislation has the following important practical effects for higher education providers and other relevant organisations:
    1. They will always need to place significant weight on securing freedom of speech and academic freedom within the law.
    2. They cannot change what speech is unlawful or illegal and therefore what is, or is not, within English law.
41. However, we recognise that for providers and other relevant organisations to manage their affairs in respect of teaching and research effectively, there must be some (extremely limited) scope to place proportionate restrictions or constraints on free speech and academic freedom where there are compelling reasons to do so. Article 10(2) of the European Convention on Human Rights provides a sensible legal framework to enable this and places a ceiling on any such restriction, although in practice there may be less scope to interfere with free speech.²⁴
42. It is our firm view that significant weight will always need to be placed on freedom of speech and academic freedom. In practice, this sets a very high hurdle and there will be very limited room for a provider, constituent institution, or relevant students’ union to create restrictions on lawful speech. In particular it is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.
43. However, there may be some scope for limited restrictions in respect of the time, place and manner of expression, provided that:

1. There is a compelling justification for the restriction, and it is the least intrusive of all the available options.
2. The restriction does not amount to a de facto restriction on particular content of speech in practice.
3. Freedom of speech and academic freedom otherwise remain meaningful and effective rights in practice.

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

21 A ‘constituent institution’, in relation to a registered higher education provider, means any constituent college, school, hall or other institution of the provider. See HERA Part A1 section A4(4). A ‘relevant’ students union is a students’ union at a registered higher education provider that is eligible for financial support. This does not include a students’ union for students at a constituent institution of such a provider. See HERA Part A1 section A5(6).

22 See (a) HERA Part A1 section A1, A4, A5; (b) HERA Part A1 section A2, A4, A6.

23 See HERA Part A1 section A1(13).

24 See https://www.legislation.gov.uk/ukpga/1998/42/schedule/1.

44. The proposed guidance is designed to help providers and others to navigate their free speech duties although it does not remove the requirement for them to make their own judgements about compliance with those duties. The proposed guidance will also provide transparency about the issues that the OfS may consider when making decisions about free speech matters.
45. From 1 August 2024 we expect to be operating a free speech complaints scheme. This scheme will consider individual complaints from students, academics and others.²⁵ These complaints will relate to possible breaches of the secure duties for universities, colleges and relevant students’ unions. In every case that it reviews, the OfS will make a decision as to whether the complaint is justified. In each case the OfS will make a decision on the basis of the law and the facts of that case. From 1 August 2024 the OfS will also separately regulate compliance with the secure and code duties for relevant students’ unions.
46. Whether a provider, constituent institution or relevant students’ union is meeting its secure duty will depend on the particular circumstances. This means that we cannot provide guidance that covers every scenario that may arise. It also means that we cannot state in advance exactly what view we will take of any particular case. Our view of any case will always be sensitive to the particular facts of that case.
47. We have also discussed, in section 3 of the proposed guidance, the criteria for ‘exceptional’ circumstances. These are the circumstances in which providers, constituent institutions and relevant students’ unions may pass on security costs to an individual or body that is using their premises (for instance for a speaker event). HERA places a duty on providers, constituent institutions and relevant students’ unions to specify what counts as an ‘exceptional’ circumstance.²⁶ We have stated that it may be a reasonably practicable step to securing freedom of speech for providers, constituent institutions and relevant students’ unions to use criteria that are clear, objective and neutral as to content.
48. We also considered including guidance on the duty on the governing bodies of providers, and of their constituent institutions, to promote the importance of freedom of speech and academic freedom (the ‘promote’ duty).²⁷ Our consideration of free speech complaints and of regulating students’ unions may inform our views on, for example, the interplay between the ‘secure’ duty and the ‘promote’ duty. We may decide to develop guidance on the ‘promote’ duty in the future. It remains the case that providers and constituent institutions must comply with their ‘promote’ duty from 1 August 2024.

25 See www.officeforstudents.org.uk/consultations-on-free-speech/consultation-on-the-ofs-s-new-free-speech-complaints-scheme/.

26 HERA Part A1 section A2(2)(d), section A4, section A6(2)(d)(ii).

27 See HERA Part A1 section A3.