Higher education: guidance published on freedom of speech

Guidance has been issued today (19 June 2025) on freedom of speech by the Office for Students (OfS), the regulator for higher education in England.

This follows the passing of the Higher Education (Freedom of Speech) Act 2023 in May 2023 and is ahead of the new legislation coming into force (in part) on 1 August 2025.

Higher education providers in England are already under a statutory duty to secure freedom of speech within the law. The new legislation strengthens the existing statutory duty and will require the governing bodies of higher education providers in England to “take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take” in order to secure freedom of speech within the law. This includes freedom of speech for staff, members, students and visiting speakers – and it expressly includes the ‘academic freedom’ of academic staff.

The legislation made provision for the appointment of a new senior office-holder at the OfS, the Director for Freedom of Speech and Academic Freedom. The first appointee to this post was the former Cambridge University philosophy academic, Dr Arif Ahmed.

The OfS also published a poll alongside its new Guidance which suggests that “one in five academics on both the political left and right do not feel free…to teach controversial topics, rising to one in three afraid to discuss them more generally, e.g. in external speaking engagements.”

The Guidance from the OfS has the status of Regulatory Advice and will no doubt be a significant reference point for the OfS, higher education providers and all the individuals who will look to have their rights upheld in the coming months and years.

The Guidance rightly notes that it is not necessary to point to a law enabling someone to express their opinions. Rather, the question is whether any freedom of speech is restricted by law. The statutory duty on English Higher Education providers will be to “secure” freedom of speech within the law. The Guidance suggests a three-step test for assessing compliance with this duty:

• Step one: is the speech ‘within the law’?
• Step two: are there any ‘reasonably practicable steps’ to secure the speech?
• Step three: are any restrictions ‘prescribed by law’ and proportionate under the European Convention on Human Rights?

The Guidance gives 53 examples of factual situations to assist in applying the statutory duty. These range from hosting a visiting speaker on a regional war and international students on visiting scholarships to requiring candidates for academic promotion to make a commitment to equality, diversity and inclusion.

In the introduction, the OfS sets out its regulatory perspective as follows:

“Higher education should have a high tolerance for all kinds of lawful speech. There should be a very strong presumption in favour of permitting lawful speech.”

The Guidance also rightly notes that the new legislation does not amend the substantive law on freedom of speech which is a ‘qualified right’ within the European Convention on Human Rights. Speech which is outside the law is not protected.

The legislation also imposes a statutory duty on English higher education providers to have a strengthened Code of Practice setting out how it will secure freedom of speech on campus and it also introduces a new duty on institutions to promote the importance of freedom of speech and academic freedom within the law.

The Government initially suspended the implementation of the legislation given concerns about its scope and impact. The Secretary of State then issued a statement in January this year to indicate that certain measures within the legislation would be amended or repealed, including the repeal of the provision for the introduction of a new civil claim in the courts where an institution had breached its statutory duties. By way of enforcement, the OfS will have the power to intervene on a regulatory basis should a registered provider breach its Conditions of Registration relating to freedom of speech and academic freedom, as it has done in respect of Professor Kathleen Stock and the University of Sussex (which is challenging the regulatory decision in the High Court). The Government also intends to repeal the imposition of a direct statutory duty on students’ unions on the basis that they are regulated by the Charity Commission. The OfS Complaints Scheme is to be amended to be limited to academics and visiting speakers – students will be able to continue to bring their complaints about freedom of speech to the Office of the Independent Adjudicator for Higher Education which operates the statutory scheme for student complaints.

It is hoped that careful attention to the new OfS Guidance, the applicable legal framework, and the specific context for any activity will enable individuals and bodies to have confidence to speak freely within the law on a full range of issues at their higher education institution and explore and test ideas, opinions and diverse viewpoints.