Office for Students (OfS) Consultation on new conditions of registration for free speech

The consultation seeks views on new condition E11 – relating to governing documents and management and governance arrangements for freedom of speech – and E12, relating to provider compliance with the new free speech duties (A1 to A3 of Higher Education and Research Act 2017 (HERA), as amended by Higher Education (Freedom of Speech) Act 2023.

It seeks feedback on proposed OfS guidance on what it means for governing documents and arrangements to be consistent with compliance. It does not seek feedback on the specific wording of the condition requirements, because the regulator must introduce them by law. As the conditions are required by law, the consultation focuses on the supporting guidance and the OfS’s approach to assessing compliance.

In light of the judgment in Sussex versus OfS, the consultation has adopted a definition of “governing documents” to mean “governing documents that have some governing effect, which goes to the constitution or governance of the higher education provider”. It is not consulting on this definition of governing documents as this is a matter of statutory interpretation.

The new conditions come into force on 1 April 2027. The consultation runs until 23 November 2026.

The consultation document, along with supporting information, can be found at: Consultation on new conditions of registration for free speech – Office for Students

At-a-glance:

• Under new condition of registration E11, a provider must have governing documents that are ‘consistent with compliance’ with its free speech duties, and adequate and effective management and governance arrangements to secure its compliance with those duties (p8)

• To assess compliance with the condition at registration, the OfS will focus its review on a provider’s foundational documents and the documents outlined in initial condition E7 (eg governing body documents, risk and audit documents, business plan, conflict of interest policy, operational rules etc) (p10)

• Under the proposed guidance, the OfS expects providers to review their governing documents for consistency with compliance with the duties prior to 1 April 2027. If a provider introduces new governing documents or makes changes to existing documents, it should consider whether the change affects its ability to comply with this condition (p24)

• As part of its review, the OfS recommends that the governing body should ask: does the governing document and/or provision relate to/have consequences for freedom of speech/academic freedom? If so, is there anything within the document that does or could reasonably be considered to prevent compliance with the duties? (p25)

• The guidance gives a hypothetical example of a clause in a governing body appointment document which states that “members of the governing body are prohibited from expressing views that are unnecessarily critical of the university”. It says that this clause is likely to be inconsistent with compliance and in breach of Condition E11.1 (p25)

• In a second example, a university based in a foreign, one-party state opens a branch campus in England that is registered with the OfS. The governing documents specifically prohibit the teaching of views that contest the values of the ruling party. The guidance says that by excluding the teaching of a range of lawful political views, these governing documents are likely to be inconsistent with the provider’s compliance and in breach of Condition E11.1 (p26)

• If a provider determines that its governing documents prevent compliance, it must change its documents to ensure that they are consistent with compliance (p25)

• In assessing a provider’s ongoing compliance with E11, the OfS may consider any regulatory information and intelligence it holds – including, but is not limited to its review – third-party notifications, reportable events, a provider’s operational policies and procedures, any free speech complaint received by the complaints scheme and actions taken or not taken, and any data audit (p27)

• Where the OfS considers that a provider is at risk of breaching the condition, it may request additional evidence and/or information eg information to provide transparency of inter-relationships between companies and other organisations, including relationships with foreign partners (p27)

• Governance documents may indicate non-compliance if they: prohibit or discourage the expression of lawful viewpoints; impose belief requirements on staff, students, members or visiting speakers; do not include obligations imposed by external bodies, such as foreign states or political parties, as potential conflicts of interest requiring declaration and mitigation where appropriate (p28)

• Providers must have the capacity and resources to deliver compliance in practice. They should have the necessary arrangements in place to understand the legal requirements of the free speech duties; for staff to have training, support and expertise; for risks to be escalated to senior staff and/or the governing body; and to foster a culture where staff are encouraged to raise risks early without fear of retribution (p29)

• Arrangements should enable the institution to respond flexibly to new risks that emerge related to freedom of speech and academic freedom and understand how a provider’s arrangements may impact the student experience (p29)

• Each provider should determine if the governing body should maintain direct oversight of matters related to freedom of speech/academic freedom or if it can be delegated to a relevant committee and/or individual. The governing body retains responsibility for securing compliance (p29)

• Where monitoring activity produces intelligence or evidence that suggests there may be compliance concerns for an individual provider, the OfS may engage with a provider, gather further information and/or use its regulatory and/or investigatory powers where it is considered appropriate (p35)
  
  
• If a case is found to be justified or part justified under the new freedom of speech complaint scheme, it could escalate to regulatory action (p40)

Implications for governance:

The consultation makes clear that the Office for Students expects governing bodies to be “properly engaged” with their responsibilities and duties on freedom of speech/academic freedom, and the risks to securing compliance.

The proposed guidance provides a detailed overview of the governing documents that are likely to be relevant and what “adequate and effective management and governance arrangements” in relation to freedom of speech looks like. It includes two useful examples of hypothetical clauses in governance documents which are likely to be inconsistent with compliance and in breach of the new condition E11.

In its current form, the guidance sets institutions the task of reviewing their governing documents to ensure they are consistent with freedom of speech/academic freedom duties, and with ensuring that they have the capacity and resources on the ground to deliver compliance in practice, before the new conditions E11 and E12 come into force in 1 April 2027.

The consultation document acknowledges that given the diversity of providers in the sector, “adequate and effective” management and governance arrangements to ensure compliance will be different from provider to provider depending on its size, shape, legal structure and kind of provision.

Institutions should consider what arrangements are appropriate for their context: a smaller provider may be likely to have simpler management and governance arrangements and may have fewer staff, contractors and members of the governing body than a larger provider. The OfS expects the resources allocated to the duties to be appropriate given the specific context of the provider but to be “sufficiently sizeable” to enable the provider to meet its duties in full.

Risks related to freedom of speech and academic freedom may evolve and change over time, according to the consultation document. As a result, institutions should “appropriately adapt” and balance their capacity and resources across the organisation as risks change and new risks emerge.

The consultation gives the example of a provider starting to recruit international students for the first time. In such a situation, the institution needs to understand the new risks, such as foreign interference, that may emerge and to judge if changes to arrangements are needed to capture and respond to such risks.

Related to this point, the consultation says that suitable protocols should be in place for the escalation of concerns about foreign interference to the OfS, the police or other state agencies as appropriate. Where governing body members or senior managers are based in a foreign state, there should be effective arrangements to prevent monitoring by that state of the provider’s internal communications or decisions where this threatens freedom of speech/academic freedom in England.

Where sub-contractual arrangements exist and the delivery partner is not registered with the OfS, the proposed guidance makes clear that the registered lead provider is responsible for adequate and effective management and governance arrangements to secure compliance with the duties.

Providers are also instructed to consider how their arrangements may impact students’ experiences and should, where possible, avoid placing unnecessary burden on students and students’ unions. For instance, institutions should avoid overly complex, onerous or restrictive rules on running meetings, invited speakers and the approval of research projects or dissertations, which could have a “chilling” effect on lawful speech/academic freedom.

The proposed guidance incorporates advice already issued – regulatory advice 24: Guidance related to freedom of speech – as new Annex D in the proposed regulation. Additional guidance on governance recommends that a senior person or body, reporting to the governing body, is appointed to oversee and report on academic freedom/ freedom of speech. It says governors should receive a report annually, or more frequently, on freedom of speech and academic freedom, including qualitative information and data on relevant matters.

Respondents to the consultation can provide feedback to a series of eight questions (p7) relating to specific feedback on conditions E11 and E12 and wider questions about clarity and any potential equality impacts of the proposals.