The Office for Students (OfS) is shifting how it handles free speech, but the regulatory architecture remains largely unchanged. The regulator has published new conditions of registration and a consultation on guidance, which will apply to all higher education providers from 1 April 2027.
New Conditions and Guidance
The Higher Education (Freedom of Speech) Act 2023 requires the regulator to introduce two new conditions under section 8A of the Higher Education and Research Act 2017. Condition E11 covers governing documents and management arrangements. Condition E12 covers compliance with the free speech duties themselves. Both conditions are mandatory under the new law.
The consultation focuses on guidance for these conditions rather than the duties or definitions themselves. OfS is asking for views on the draft guidance for E11, changes to Regulatory Notice 7 on registration applications, and the guidance for E12. The regulator has already narrowed the definition of “governing documents” following the University of Sussex case.
Providers are expected to review their governing documents before April 2027 to ensure they are consistent with compliance. A policy statement like the one Sussex was fined over would probably no longer count under E11.1, so that kind of scrutiny now moves to E11.2 and E12.
Section A3 of HERA requires providers to promote the importance of freedom of speech and academic freedom. The new section 4 of Regulatory Advice 24 provides the first guidance on this duty. The regulator describes the duty as “proactive in character.” Paragraph 215 states that compliance should result in an environment where students and staff have the confidence to express a wide range of lawful ideas, including those that are “shocking, disturbing or offensive.”
The guidance goes into detail on how providers should achieve this. Paragraph 222 suggests considering classroom layout, such as seating people in small groups around tables. Paragraph 223 lists steps including “smaller class sizes, e.g. moderated seminars.” Paragraph 223(a) suggests staff explicitly state that the class is a “safe space to discuss various ideas.” Paragraph 224(b) suggests “discussion sessions/Q&A in lectures that are not recorded,” which sits uneasily with lecture capture as a reasonable adjustment for disabled students.
Then paragraph 231 suggests governing bodies “adopt and to state publicly a position of institutional neutrality,” not commenting on national or global events outside the institution’s educational remit. It’s also one that providers trying to demonstrate compliance may be tempted to push onto their SUs via the conduct provisions of the code, even though SUs aren’t subject to the promote duty and are already governed by charity law on political activity.
Adequate and Effective Management
Condition E11.2 requires “adequate and effective management and governance arrangements to secure compliance,” and the guidance at Annex A, paragraph 21, on page 28, defines an arrangement as adequate if “it is capable of delivering its stated or implied objective” and effective if “it delivers compliance in practice.” Capacity and resources are made central, including financial resources, the number and expertise of staff, contractors, and governors, and resources to undertake investigations, respond to complaints, protect students and staff at risk of harassment for their speech, and maintain governing body oversight.
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There’s the obligatory nod to diversity of provision, with smaller providers likely to have simpler arrangements, but paragraph 25 on page 29 carries the important rider that resources should be “sufficiently sizeable to enable the provider to meet its duties in full” – which isn’t a phrase that will reassure a small / specialist wondering how many staff a free speech function actually needs.
The bigger issue is logical rather than practical. If an arrangement is only effective when it “delivers compliance in practice,” then any finding of a breach under E12 is also evidence that arrangements under E11.2 were not effective. This pairing produced the Sussex outcome, and the new conditions build this dynamic into the regulatory design for every future case. Paragraph 27 notes that information from the complaints scheme will inform the regulator’s view of risk across all conditions.
It adds that a justified or partly justified free speech complaint would be considered indicative of a breach of condition E12. The draft E12 guidance tries to distinguish the two functions. It states that a finding of a justified complaint is indicative of a breach, but not the same as a regulatory decision that a provider has breached a condition. This distinction is difficult to reconcile with the complaints scheme rules that came into force on 1 September.
Under rules 34 and 35, a complaint is justified if it is “more likely than not” that the respondent has breached the duty. Both justified and partly justified outcomes rest on a finding of probable breach. The complaints process uses a mainly paper-based review, while the conditions of registration require a formal assessment with procedural protections. The regulator will engage with a provider that does not follow a recommendation as part of its work to assess compliance, which may escalate to regulatory action.
Paragraph 20 of Annex B says the regulator “will engage with it as part of our work to assess compliance” if a provider does not follow a recommendation, and that “this may escalate to regulatory action where appropriate and proportionate.” A recommendation that carries the risk of a condition breach effectively becomes a requirement. The guidance provides a non-exhaustive set of examples of steps related to governance.
These include appointing a senior person to oversee free speech, submitting an annual report to the governing body, and setting up confidential reporting routes. Paragraph 36 states these are “illustrative only” and “we would not expect all of these arrangements necessarily to be in place at all providers.” However, E11.1 paragraph 18(d) lists “any record of any proportionality analysis” as something the regulator may request. This turns a good practice suggestion into a potential evidentiary requirement.
If a provider has not written a record down, it may find the expectation was an obligation all along. Most of the 54 examples in Regulatory Advice 24 have not been re-run through the corrected three-step test. Vignettes that still travel directly from “this could affect lawful speech” to “likely breach” are about to be promoted into indicators of condition compliance. This tension runs through the promote duty material, which paragraph 217 describes as “suggestions rather than requirements.”
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