Higher Education (Freedom of Speech) Act 2023 update: OfS issues its 'Regulatory advice 24' guidance

Today, the OfS issued its much-anticipated final guidance related to freedom of speech (the guidance). 

By way of brief background, implementation of the Higher Education (Freedom of Speech) Act was paused following the July 2024 general election. 

Before the election, the OfS completed a consultation on its draft version of the guidance, but the draft was not finalised. 

On 15 January 2025, the Secretary of State announced the next steps in relation to implementation of the Act, including that while the statutory tort and duties concerning students’ unions would be repealed, the “secure”, “promote” and “code” duties on providers and their constituent institutions (including Cambridge and Oxford Colleges) would be implemented. Regulations have now been laid bringing the duties into force from 1 August 2025.  

The “secure” duty includes a duty to take reasonably practicable steps to secure freedom of speech within the law for staff, members, students and visiting speakers, and the guidance sets out a framework for how the OfS would determine whether speech is “within the law” and what “reasonably practicable steps” institutions are expected to take. It gives advice on the proportionality of restrictions on speech and the steps that providers should take, including in relation to Free Speech Codes. It advises on the interaction with other legislation, including the “due regard” duties in respect of “Prevent” and the Public Sector Equality Duty. 

The guidance includes some fairly punchy examples, including in relation to the use of pronouns, and extreme and polarising expression that is likely to upset students. In relation to the former, it advises that a blanket ban on misgendering is likely to breach the “secure” duty. In relation to the latter, the guidance has strengthened the example used in the consultation draft and advises that requiring an academic to omit especially extreme and polarising examples from a speech on political violence would be likely to breach the “secure” duty. 

Registered providers and constituent institutions will need to reflect carefully on the guidance and how it affects their approach to Free Speech Codes, as well as other policies and procedures that interact with the freedom of speech duties, including but not limited to those dealing with discipline; equality, diversity and inclusion; Prevent; fitness to practise; and harassment and bullying.

Please contact Sam Rose or Richard Sykes for assistance with meeting the OfS’s expectations in respect of this Regulatory advice.

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