Office for Students opens consultation on freedom of speech guidance

The latest consultation follows previous consultations on the new OfS complaints scheme and its proposed approach to regulating students’ unions.

What does the guidance cover?

On 26 March 2024, the Office for Students (OfS) opened its consultation on proposals relating to its new guidance on freedom of speech in higher education institutions (HEIs). The draft guidance sets out what HEIs will have to do to fulfil their free speech duties as set out in the Higher Education (Freedom of Speech) Act 2023 (the Act). The consultation follows hot on the heels of recent consultations on the OfS free speech complaints scheme, due to be implemented from 1 August 2024, and the regulation of students’ unions in relation to freedom of speech.

The draft guidance sets out how the OfS will tackle freedom of speech issues and includes scenarios and examples to demonstrate where universities, colleges and students’ unions may have breached their free speech duties, and where they are likely to be held to have complied with them. The guidance also includes further detail on amendments to the OfS regulatory framework to reference the OfS’s new functions and duties under the Act and how the OfS will approach costs in connection with the new free speech complaints scheme and regulation of students’ unions.

Students’ unions (and other HEIs) should consider responding to the consultation if they have suggestions for how the OfS might improve the final guidance and/or if they disagree with the proposed approach.

Our view

Our specialist SU team has carried out an initial review of the guidance. We have some concerns that the guidance overlooks the charitable status of students’ unions and await more detail on how the OfS will balance the new freedom of speech duties with duties imposed by charity law. For example, charity trustees are expected to safeguard their charity’s assets, which would include its reputation. The current guidance suggests that the OfS expects freedom of speech duties to always take precedence, a position which is difficult to reconcile with charity law obligations.

The guidance also repeatedly emphasises promptness and a need for quick response but investigations, particularly of thorny and potentially contentious issues, generally need to be thorough and careful. There is a risk that nuance will be missed where an investigation is conducted too quickly and fails to untangle and consider all the different aspects of a particular case. We urge the OfS to pick this up in its final version of the guidance.

The deadline for responding to the consultation is 26 May 2024. If you would like to discuss the new legislation and SU’s duties under it, please do not hesitate to contact one of the members of our specialist SU team.