Promoting the Importance of Free Speech – Responding to the Office for Students Consultation – Deadline 23 November 2026

As set out in this earlier Shakespeare Martineau briefing, the Office for Students (OfS) is consulting on how it intends to regulate institutions’ efforts to promote the importance of freedom of speech and academic freedom. The briefing set out who bears the promote duty, what “promote” should mean in practice, how governing bodies can manage this and suggestions about ways institutions can evidence meaningful activity.

The consultation seeks views on how the OfS should regulate new conditions relating to freedom of speech and academic freedom which come into force on 1 April 2027.

The deadline for responses to the consultation is 23 November 2026. As a firm with an active involvement in higher education, including advising many institutions on free speech matters, we are keen to comment on the approach proposed by the OfS.

We are publishing our replies to the questions asked in the consultation to assist institutions with their thinking on these issues. We would encourage all institutions regulated by the OfS and others with an interest to respond too.

Question 1: Do you have any comments on our proposed guidance for condition E11?

The clarification of the definition of ‘governing documents’ following the University of Sussex ruling is helpful here and should sensibly constrain the number of documents under consideration in relation to this condition.

We have a significant concern with Example 1 which relates to governing body appointments. This states:

University A’s governing document related to governing body appointments includes Clause B. This clause states that members of the governing body are prohibited from expressing views that are ‘unnecessarily critical’ of the university. 

Clause B is likely to be inconsistent with compliance with the A1 duty and therefore in breach of Condition E11.1.

This is inaccurate guidance and should be replaced. Governing body members (whether as directors or charity trustees) have clear responsibilities around shared decision-making which means that all concerns should be aired within the governing body’s deliberations but that members are then collectively bound to act in accordance with the consensus/majority view. Members cannot step outside following a collective agreement at a meeting and then express views which are critical of the institution and/or the decision. As Section 2 of the 2026 CUC Governance Code notes, all members share a collective responsibility to act in the best interests of the institution:

10. All board members, including those who are also students or staff share the same responsibilities. All members’ primary duty is to act in the interests of the institution, which includes respecting confidentiality.

If members do not accept this collective responsibility and do not uphold the standards of conduct expected of them then the governing body is obliged under the Code to address this:

O2. The Board should develop, publish, follow and regularly reflect on compliance with a Code of Conduct, which sets out the cultural and behavioural requirements and expectations of all board members and attendees. The Code of Conduct should also specify a process for a response in cases where it is not being adhered to.

It follows that a member of a governing body who is publicly “unnecessarily” critical of their own institution is likely to be in breach of their fundamental duties and at risk of undermining effective governance.

This guidance example therefore flies in the face of all of these well-understood governance expectations and should be deleted. A more appropriate example might relate to views expressed by members of governing bodies on matters unrelated to the institution but considered controversial by some students and staff.

Question 2a: Do you have any comments about the proposed amendments to Regulatory notice 7?

The amendments set out in Annex D appear relatively straightforward. However, the guidance setting out the approach to the requirement for ‘adequate and effective management and governance arrangements’ to secure compliance, appear to go far beyond what might be expected for a determination of adequacy and effectiveness. The detailed level of specification here, both for initial registration and ongoing compliance, is excessive. The concern would be about the kinds of evidence which the OfS would be drawing on other than a significant and properly submitted complaint or a reportable event from an institution indicative of a breach. Any other evidence is likely to be circumstantial at best and simply would not warrant further investigation. The requirements relating to resourcing also risk impinging on institutional autonomy as they imply that the OfS is able to determine how much resource an institution needs to allocate to these activities to ensure compliance. In short the scale of the guidance here seems disproportionate given the risk.

Question 2b: Do you have any comments about the proposed amendments to Regulatory notice 7 for further education colleges not seeking DAPs?

The amendments set out in Annex E are similar to Annex D (there may be one or two colleges which have Royal Charters but no FE colleges) but do ask for more financial information. Again this seems unnecessary given that the OfS can judge whether the actual management and governance arrangements are adequate and effective without looking at the detail of financial allocations.

Question 3: Do you have any comments on our proposed guidance for condition E12?

As the guidance makes clear, for the OfS this about ensuring the governing body complies with the A1, A2 and A3 duties, ie securing freedom of speech, implementing a code of practice and, the latest element to come into play, the duty to promote the importance of freedom of speech and academic freedom.

As noted in relation to Question 2a the evidence which the OfS is looking for seems to risk being excessively detailed and implies a degree of intervention which is disproportionate. In addition, the suggested activities for promoting the importance of free speech risk becoming prescription rather than guidance given that they are now to be included in Annex D of the revised Regulatory Framework. We would argue that these should either be removed altogether or placed in a document which is clearly a set of suggestions or good practice thoughts on implementation of A3.

We welcome the revisions to the ‘three-step’ approach following the Sussex judgment.

Question 4: Do you have any comments on the proposed changes to Regulatory advice 24 (which will become Annex D of the regulatory framework)?

The major changes in RA24 relate to the Promote duty where it is proposed that there needs to be a visible institutional programme, supported by leadership, culture, communications, staff development and evidence.

As a starting point, the duty is to promote the “importance of freedom of speech”, but many of the examples given relate to promoting free speech. For example, while reconfiguring the layout of a teaching space may indeed promote free speech, it does nothing to promote the importance of it. The duty to secure free speech already includes taking proactive measures to ensure staff, students and others feel able to exercise their free speech rights, and many of the suggestions given more properly seem to be about “securing” in a proactive sense rather than promoting the importance of. We suggest this entire section needs to be reviewed with that distinction in mind.

In any event, although non-prescriptive and framed very much as a series of suggestions rather than requirements, the inclusion of a range of activities within what is to become Annex D of the OfS Regulatory Framework (rather than Regulatory Advice) inevitably adds greater weight to the expectation that many of these will be implemented.

These suggestions are wide ranging in relation to promoting the importance of free speech and academic freedom and cover, among other things:

• Activities in the classroom and online and the setting out of expectations and messaging together with specific suggestions for academics managing discussions in lectures
• More training for staff, induction activities for new students and staff, special training and orientation for visiting staff and international students
• Visible and frequent public statements from the Chancellor, the Vice-Chancellor and the Chair of the governing body
• Adopting a position of ‘institutional neutrality.’

The concern is though that these ‘suggestions’ by virtue of appearing as part of a new Annex in the Regulatory Framework will very quickly become requirements, or at the very least result in a regulatory expectation that institutions will comply or explain. Prescribing regular public statements on free speech by senior leaders, which would be the likely consequence of one of these, goes way beyond a suggestion. We would strongly argue therefore that all of these ‘suggestions’ should not appear within a new Annex D of the revised Regulatory Framework but form part of new document on the OfS Free Speech website which is clearly a set of suggestions or good practice thoughts on implementation of A3.

We would also contend that directing institutions to consider adopting a position of institutional neutrality (again a ‘suggestion’ contained in a Regulatory Framework will not stay that way for long) is a significant step into the domain of institutional autonomy and must be removed.

Question 5: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.

No, the proposals are clear as presented.

Question 6: In your view, are there ways in which the objectives of this consultation could be delivered more efficiently, more effectively and/or with less burden than proposed here?

It is undoubtedly the case that the whole regulatory architecture relating to freedom of speech and academic freedom risks becoming disproportionate and over-specified. We would argue that there is a strong case for a major review of all of this before it is fully implemented in order to strip it back to the minimum required to ensure legal compliance and reporting by exception.

Question 7: Do you have any comments about the potential impact of these proposals on groups or individuals sharing relevant protected characteristics under equality legislation?

No

Question 8: Do you have any comments about any unintended consequences of these proposals, for example, for particular types of provider, constituent institution or relevant students’ union or for any specific groups of students?

No

Do please ensure that you respond by the deadline of 23 November.

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.