OfS Consultation on New Free Speech Conditions of Registration

The Office for Students (OfS) has published a consultation on the regulatory guidance associated with two new conditions of registration, E11 and E12, which relate to free speech and academic freedom in English higher education. These conditions will come into force on 1 April 2027 and the consultation is open until 23 November 2026.

The OfS is not seeking comments on the new conditions themselves, which are aligned to the wording of the Higher Education (Freedom of Speech) Act 2023 nor its ‘three-step framework’ or wider content of the existing Regulatory Advice 24 publication. Rather it is inviting views on proposed guidance relating to the new conditions and additions to Regulatory Advice 24.

We encourage all institutions and other interested parties to submit their views. As a firm with an active interest in higher education and a source of advice and expertise for many on free speech matters we feel it important to share our observations early in the consultation process in order to help others shape their responses.

What is the OfS consulting on?

There are three main areas of the consultation covering: governing documents and management and governance arrangements; compliance with free speech duties; and the new additional guidance proposed. The OfS proposes adopting a lower burden approach here for FE colleges which are not seeking degree-awarding powers (DAPs).

Condition E11 Governing Documents and Management & Governance Arrangements

E11 has two elements. E11.1 requires that an institution’s governing documents are “consistent with compliance” with the free speech duties. These are the duty to take reasonably practicable steps to secure free speech (the secure duty), the duty to maintain a code of practice (the code duty) and the duty to promote the importance of freedom of speech (the promote duty).

The OfS has adopted a definition of ‘governing documents’ to follow the judgement in the case of the University of Sussex v the OfS.

However, the OfS remains at risk of challenge in our view, because some of its requirements appear to be disproportionate and even legally questionable. For example, the proposed guidance suggests that a requirement that members of the governing board should not be unduly critical of their own institution may breach the secure duty. How this sits with wider legal obligations on such members to act in the best interests of their institutions, to avoid putting themselves in a position where their personal interests conflict with those of their organisations, and to take collective responsibility for the decisions made by the board is not addressed or explained. This seems significantly to undermine the ability of boards to maintain effectiveness, confidentiality and discipline.

E11.2 requires institutions to have “adequate and effective” management and governance arrangements to secure compliance with those duties.. Adequate means an arrangement is capable of delivering its stated or implied objective and ‘effective’ if it delivers compliance in practice.” Institutions will also need to have the “capacity and resources” needed to deliver compliance.

There are expectations on governing body oversight, arrangements for visiting speakers and ensuring the avoidance of the so-called “chilling effect.”

The guidance acknowledges that what constitutes compliance will differ depending on an institution’s size, shape, legal structure and kind of programmes offered, but at times seems completely unrealistic for small, specialist or resource-challenged institutions.

The OfS says it will adopt its usual approach to considering whatever relevant regulatory information and intelligence it holds and may need to engage further with an institution or invoke its regulatory powers.

Condition E12 Compliance with the Free Speech Duties

Condition E12 is an ongoing condition requiring that institutions comply with the three statutory duties.

The OfS proposes to assess compliance with the secure duty using the existing three-step framework from Regulatory Advice 24. For the code duty, the OfS will consider whether an institution maintains a code of practice and takes reasonably practicable steps to secure compliance with it. For the promote duty, it will consider what actions a provider has taken to promote the importance of free speech.

Information from the OfS free speech complaints scheme may inform the assessment of E12 compliance, although it is stated that a complaints outcome will not by itself determine regulatory action. A justified or partly justified complaint would, however, be considered indicative of a breach of condition E12. Of course there remains something of a fundamental and unresolved issue here – having the operator of the complaints scheme also acting as regulator inevitably raises questions about the ability of the OfS to act appropriately and objectively in separate roles when all those involved are part of the same organisation.

Expanded Guidance

The OfS proposes to move its existing Regulatory advice 24 into the regulatory framework as a new annex and to supplement it with additional guidance on the “secure” and “code” duties, as well as new guidance on the “promote” duty.

New guidance on governance includes recommendations on transparency and oversight, most notably the suggestion to appoint a senior person or body to oversee free speech matters. Less controversially, there is the proposal that there should be regular reporting to the governing body on free speech. There is a further detailed list of suggested arrangements to enable reporting and escalation of staff or student concerns about free speech, the introduction of various protocols and support systems and risk assessment processes in relation to free speech and academic freedom. Institutions may be surprised that they are being advised to escalate to “a suitably senior level” where there is a decision “to dismiss an academic wholly or partly because of their lawful speech.” It really does seem more than a little unlikely that such a scenario could occur without significant senior level input and suggests limited insight into institutional realities on the part of those drafting.

Additional guidance on non-disclosure agreements is also included.

The new “promote” duty guidance frames the duty as proactive in character, setting out extensive yet non-exhaustive examples of activities such as induction events, training, classroom discussion of controversial topics, institutional neutrality stances and senior leadership affirmations of the importance of free speech. All of this seems to go into a surprising level of (admittedly non-prescriptive) detail. But it paints a picture of a very particular kind of institution (despite the claims to recognising diversity earlier). And the recommendation that one of the ways to promote free speech in the classroom better is simply to reduce class sizes will, rightly, be discounted by every currently cash-strapped institution.

Although this inevitably increases the regulatory burden by expanding the existing (and somewhat out of date) OfS Regulatory Framework, it does at least clarify the status of this document. Until now, Regulatory advice 24, despite its title strongly implying a document which was advisory rather than directive and supporting rather than dictating, had effectively been deployed as a regulatory document and not advice at all.

Next steps

Whatever the outcome of the consultation on the content of this additional regulation, all institutions will need to review and make some potentially far-reaching changes to their governance arrangements before the new OfS conditions come into force on 1 April 2027.

If you or your institution are looking for support or advice on the approach to take in relation to the new regulations or broader free speech or academic freedom issues then please do get in touch with our education team.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.