The UK government's Office for Students (OfS) has quietly issued new regulatory guidance that could represent the most serious reversal yet of the progressive institutional capture of British universities. For anyone concerned with free speech and academic freedom in universities, Regulatory Advice 24: Guidance related to freedom of speech, a dry-sounding regulatory document that appeared on June 19th, repays close attention. Issued by the OfS, it outlines the approach the regulator will adopt when assessing institutions’ compliance with their legal duties. This includes the core requirement to take “reasonably practicable steps” to secure freedom of speech within the law. In doing so, the guidance quietly overturns years of institutional emphasis on EDI (Equity-Diversity-Inclusion) initiatives and delivers a serious setback to the idea that universities can police lawful speech based on reputational concerns, perceived harm or a vague desire to just #bekind.
The new regulatory guidance includes the core requirement to take “reasonably practicable steps” to secure freedom of speech within the law.
At stake is how universities interpret their statutory responsibilities under the Higher Education (Freedom of Speech) Act 2023, which roughly translates as securing freedom of speech for university staff (both teaching and admin), students, and visiting speakers. The OfS makes clear that institutions must start from the presumption that all speech is lawful unless explicitly prohibited by statute or common law. This is no minor clarification, but a reassertion of statutory priority over institutional discretion, and closely reflects a position long advocated by campaign groups like the Free Speech Union during the consultation process.
To understand why this interpretation of the law matters, it helps to recall the political context in which this guidance was developed. Virtually every university in England and Wales—along with representative bodies such as the Russell Group (representing the Universities of Cambridge, Oxford, London and 22 of the UK's other most prominent universities) and several prominent sector lawyers—argued that “freedom of speech within the law” should be interpreted according to the more restrictive standards of the European Convention on Human Rights. That is, free speech on campus was to be any speech not already restricted under that framework (note that according to the ECHR, the right to freedom of expression can be restricted by laws that are necessary for national security, territorial integrity, public safety, the prevention of disorder or crime, etc). This approach would permit a wide range of limitations, including those grounded in internal policies or contractual obligations designed to protect the “rights of others”. In practice, this invites a balancing exercise, in which free speech is weighed against competing values and may be overridden. The effect would have been to render the 2023 Act’s core duty all but meaningless, effectively allowing universities to mark their own homework.
That might sound far-fetched. But in its official submission to the OfS, Universities UK—the sector’s main representative body—took the argument to its logical conclusion: “Many universities are themselves public authorities for the purposes of the Human Rights Act and thus exercise the responsibilities and the powers of the state in relation to Convention rights ... This means that employment contracts, policies and procedures ... can also lawfully restrict speech where the restrictions are necessary in a democratic society to protect the rights and freedoms of others”.
Thankfully, the OfS guidance rejects that view outright, confirming that internal policies, institutional values or codes of conduct—including EDI frameworks—do not have the force of law.
That carries significant implications, with universities now expected to follow a three-step process:
