Freedom of speech - a moving target?

The Office for Students' consultation on the freedom of speech complaints scheme closed at the weekend and the linked consultation on regulating relevant students' unions will close shortly.  

UUK, UCEA, AHUA, AMOSSHE and CUC have set out various concerns on behalf of providers in their consultation responses.  Concerns highlighted in relation to the complaints scheme include matters such as aspects of the proposed definitions, timeframes, publication of complaints and how the scheme will interact with other legal frameworks like equality and charity law and the OIA scheme.   It remains to be seen whether the OfS will make changes to its proposed approach in response to these representations and any other responses received during the consultation process.

Further OfS consultations are expected imminently concerning:

• the provision of further guidance to students’ unions, providers and constituent institutions on securing free speech within the law and on publishing and maintaining a freedom of speech code of practice;
• proposed revisions to the regulatory framework;
• the OfS’ proposed approach to costs recovery for justified complaints.

At present it is expected that the complaints scheme and updated freedom of speech duties for registered providers, constituent institutions and students’ unions will come into force on 1 August 2024.  New conditions of registration are expected to take effect from 1 September 2025, along with duties on the OfS to monitor overseas funding of registered providers, constituent institutions and relevant students’ unions.

Those regulated by the OfS will need to consider any further developments when the consultations and subsequent OfS responses are published, alongside other work that is being done in preparation for the strengthened and new duties coming into effect.  Whether the OfS or government will consider changing the implementation timetable to take account of the consultation process is unclear and at present, the assumption remains that 1 August will be the date for the complaints scheme and updated duties to take effect.

Meanwhile, media reports suggest that the Government is planning to publish a new definition of extremism on Thursday; no doubt the sector will be considering developments in that regard too.

We are highly experienced at advising institutions on freedom of speech issues and related matters, including the preparation of relevant policies and codes of practice.  This requires an understanding of the interaction between freedom of speech duties and the various other relevant legal frameworks including equality law, charity law, public law, human rights and academic freedom.  If you wish to discuss any of these issues in the context of your institution, please contact your usual Mills & Reeve contact or a member of our highly experienced education law team.