How Should Institutions Respond to the new OfS Guidance on Freedom of Speech?

Preparing for the OfS free speech guidance in higher education

The new OfS guidance on free speech, published on 19 June 2025, provides a clear insight into how the regulator expects registered institutions in England to meet their statutory duties around freedom of speech and academic freedom. The revised duties as introduced into the Higher Education and Research Act 2017 by the Higher Education (Freedom of Speech) Act 2023 will come into force on 1 August 2025, so there is not a great deal of time for institutions to implement the steps recommended in the guidance. Fortunately, many institutions have been working on their Codes of Practice, policies and procedures for some time and so the task in hand is less challenging than it might be. Nevertheless, there remains a lot to consider.

What should institutions prioritise in response to the new OfS guidance?

1. Does the Code of Practice on Freedom of Speech meet the expectations in the guidance?

As one would expect the guidance reflects the revised statutory provisions for the code but includes some details that institutions will need to specifically address. These are:

• How prominent and accessible the code is on their website.
• What the “clear and simple” statement about the code should say, where it should appear and how this should be reflected in other policies and procedures.
• Whether the code reflects all the regulatory expectations of content in relation to things like the institution’s values and when costs may be passed on to event organisers.

2. How can the institution identify, review and prioritise for amendment policies and procedures that may, according to the guidance, breach the statutory duties in a prompt and proportionate way?

It is clear from the guidance that merely having the code and referring to it in other policies and procedures is unlikely to be sufficient from the OfS’s point of view. Other policies and procedures will need to be reviewed for example, to:

• Identify sections which permit decisions to be made because of speech or views expressed and ensure these do not unlawfully restrict free speech, or create the risk that they could be so interpreted;
• Ensure that any references to legal restrictions or duties are accurate;
• Emphasise that adverse action will not be taken under the policy where individuals have exercised their rights to freedom of speech and academic freedom.

Institutions will need to agree a process and resources for working through their policies, procedures, regulations and guidance to amend them, taking into account any obligations they may have to consult and notify staff and students of such changes under employment law, consumer protection law, and even potentially under accreditations by PSRBs and other external bodies.

3. Do existing complaints, grievance, disciplinary and fitness to practice procedures include an appropriate triage stage?

The guidance makes clear that the OfS expects there to be an appropriately quick and robust triage stage to ensure that where speech is clearly lawful, complaints about it will be dismissed quickly. As well as adding in such a stage where it does not already exist, consideration should be given to how the triage stage will be delivered in practice, such as:

• who makes the decision – one person, and if so at what seniority, or a small group?
• how quickly – and how will the institution ensure the individual or group can in practice meet that deadline?
• what support or resources will they need to do it?
• will the complainant(s) be able to challenge the decision and if so, where does the challenge go?

4. What other institutional contracts, statements, positions and publications need to be reviewed in light of the guidance?

It is possible that institutions may in the past have entered into agreements or issued statements and materials that may not meet the requirements of the guidance but may still be in force and publicly available and could, therefore, be considered to be restricting freedom of speech or academic freedom. Institutions may wish to consider how to identify and address such contracts and statements, some of which may require amendment and careful communication. A process needs to be introduced so that in future, no contract, policy or position that could affect freedom of speech or academic freedom can be entered into without its implications on institutional duties having been properly considered.

5. How should governing bodies, staff and students be briefed on the effect of the new duties and the OfS’s Guidance?

Getting policies and procedures right is likely only to be the start. Those who are required to approve, implement and comply with the policies, or otherwise make decisions or take actions that could affect the institution’s compliance with the statutory duties, need to understand the guidance and what they may need to do differently as a result. In the case of students, they will need to understand the robust new approach to securing freedom of speech, at the same time as they are required to familiarise themselves with a robust new approach to tackling harassment as a result of the new E6 registration condition. There is a clear risk of confusion, and a clear training/briefing strategy is needed for all those within institutions who are affected by these regulatory developments.

Conclusion

The publication of guidance marks the beginning of a new approach to regulating free speech in a way that permeates many aspects of institutional life. If institutions can get the architecture, understanding and culture right for their communities it should also mark the beginning of the end of free speech being a source of conflict within the institution. It will take time, effort and resources against a backdrop of many other priorities and pressures for institutions and those working and studying within them, and therefore prioritisation, proportionality, and wherever possible, proactivity will be key.