Office of Students publishes strong guidance on free speech.

The Office for Students is consulting on its proposed guidance for universities and students’ unions on freedom of speech. 

Universities have had a duty to take “reasonably practicable steps” to secure freedom of speech since the Education Act of 1986. This duty has largely been ignored.  

The Higher Education (Freedom of Speech) Act 2023 extends this duty to students’ unions, specifies that freedom of speech includes academic freedom, and establishes the Office for Students (OfS) as the supreme regulator of free speech on campus. The OfS has published proposed guidance for universities and students’ unions on freedom of speech, and is now consulting on it

The guidance outlines which actions are likely to be “reasonably practicable steps” for universities to take, and includes 30 example cases. OfS is careful to state that whether any particular action constitutes a reasonably practicable step will depend “on the particular facts of the case”. The result is a broad and reasonably detailed indication of what universities and students’ unions are required to do under the Higher Education Act.  

This is to be welcomed: many of the examples of what universities and students’ unions are required to do draw directly on recent failings concerning academic freedom and freedom of speech. These examples are constructed to ensure that such violations will not be repeated. For instance: 

The guidance states that “the importance of securing… freedom to express or discuss a particular viewpoint is likely to outweigh any reputational costs” to a university. In October, Professor Nigel Hunt was fired by Wrexham University on the grounds that he had brought the university into “disrepute” by stating that Welsh road signs should be written in English only. CAF report here

The guidance states that “Policies and other statements should not discourage lawful speech by misrepresenting a provider’s legal duties. This may include oversimplification”. CAF has reported that the University of Birmingham’s current online guide to freedom of speech misstates the law through oversimplification. The guide states that “Speech can and should be limited if it is thought to… cause a person… distress”. This omits the requirement it that the speech must be unreasonable as well as distressing. As the OfS guidance notes, this point “is important because it introduces an element of objectivity into the test” of whether speech can be limited. 

 The guidance states that universities and students’ unions must not pass on the security costs necessary to host speakers and events, except in “exceptional circumstances”. Exceptional circumstances must be defined by universities and students’ unions in a way that is “clear, objective, and neutral”. Jack Barwell, a student at Exter University, and founder of the debating society Speak Easy, has talked to CAF about how the Exeter students’ union has used security requirements to prevent Speak Easy from hosting events. 

The guidance details many other actions which universities can take to protect academic freedom and freedom of speech, and which will likely fall under the legal requirement to take “reasonably practicable steps”. 

The University and College Union (UCU) has responded to the guidance by stating that the OfS should be abolished, and that UCU is in favour of free speech and academic freedom. It would certainly be welcome news that the UCU supports free speech and academic freedom. Local UCU branches have repeatedly demanded the cancellation of academic events, and that universities take institutional positions on political topics. 

CAF encourages all those supportive of academic freedom to read the guidance and respond to the consultation.