The consultation does not reopen the underlying statutory duties. Instead, it sets out the proposed regulatory architecture: what providers will need to demonstrate, how governance will be scrutinised, and how the OfS may identify and respond to non-compliance.
The Office for Students (OfS) has launched a consultation on proposed new conditions of registration relating to freedom of speech and academic freedom. The consultation runs from 17 September to 23 November 2026, with final decisions expected in spring 2027 ahead of the new conditions taking effect on 1 April 2027.
At its heart, the consultation is about a shift from broad statutory duties to an enforceable regulatory framework. The OfS describes freedom of speech and academic freedom as fundamental to universities’ and colleges’ pursuit of knowledge, and presents robust exchange of ideas as integral to high-quality education. Its proposals are intended to make clear both what providers must do and how the regulator will assess whether they have done it.
The document is significant not because it introduces a wholly new free-speech regime (many underlying duties are already in force) but because it explains how compliance will be embedded in registration, governance, risk management and ongoing regulatory oversight. In other words, free speech is being positioned not simply as an operational question about controversial speakers or campus events, but as a core matter of institutional governance.
What is changing and what is not
The legal context is the Higher Education (Freedom of Speech) Act 2023, which amended the Higher Education and Research Act 2017 (HERA). New freedom-of-speech duties came into force in August 2025 for higher education provision in England.
The Government subsequently announced new OfS enforcement powers in April 2026, alongside a free-speech complaints scheme which opened on 1 September 2026. From 1 April 2027, the OfS’s proposed new registration conditions would apply both to providers already on the OfS register and to those applying to register to provide higher education in England.
There are two principal proposed conditions:
Condition E11, covering the compatibility of a provider’s governing documents with its free-speech duties, and the adequacy and effectiveness of its management and governance arrangements.
Condition E12, requiring a registered provider’s governing body to comply with the statutory free-speech duties in HERA.
Importantly, the OfS is not consulting on whether to introduce these conditions, their statutory wording, the underlying free-speech duties, or the statutory definition of “governing documents”. It says these matters are prescribed by law or have already been consulted upon. The consultation is instead focused on proposed guidance, information requirements and the OfS’s approach to assessment, monitoring and enforcement.
The three duties: secure, code and promote
The consultation is built around three connected HERA duties. First is the A1 “secure” duty. Governing bodies must take reasonably practicable steps, with particular regard to the importance of freedom of speech, to secure lawful freedom of speech for staff, students, members and visiting speakers. This includes protection against the denial of access to premises, or adverse terms for use of premises, because of an individual’s views, or a body’s policy, objectives or members’ views.
The A1 duty also specifically addresses academic freedom. The consultation summarises this as the freedom for academic staff, within the law, to question and test received wisdom and to put forward new, controversial or unpopular ideas without risking the loss of jobs or privileges, or reduced prospects of promotion or another role at the provider.
Second is the A2 “code” duty. Providers must maintain a free-speech code of practice. The code must set out the provider’s values on freedom of speech and explain how those values uphold it; explain procedures for staff, students and relevant students’ unions organising specified meetings or activities on provider premises; set out expected conduct; and specify the criteria for deciding whether premises may be used and on what terms.
The code is not intended to sit unused on a website: governing bodies must take reasonably practicable steps to secure compliance with it and must bring both the statutory A1 provisions and the code to students’ attention at least annually.
Third is the A3 “promote” duty. Providers and their constituent institutions must promote the importance of lawful freedom of speech and academic freedom in higher education. The OfS characterises this as a proactive duty, not merely a requirement to take free speech into account when carrying out other activities.
The proposed guidance envisages an environment in which staff and students have confidence to express, debate, teach and research a very wide range of lawful ideas, including those some may regard as shocking, disturbing or offensive.
Condition E11: free speech as a governance issue
Condition E11 has two limbs. Under E11.1, a provider’s governing documents must be “consistent with compliance” by the governing body with the A1, A2 and A3 duties. Under E11.2, it must have “adequate and effective” management and governance arrangements to secure that compliance.
For E11.1, the OfS proposes a relatively direct test: governing documents are consistent with compliance if there is nothing in them that prevents the provider from meeting its duties. The relevant documents may include constitutional documents, documents governing the governing body’s composition and decision-making, risk and audit documents, conflicts policies, shareholder agreements and other documents that govern the provider’s operation.
Providers would be expected to review all relevant governing documents before the condition takes effect. If an institution concludes that a document prevents compliance, it must amend it. The consultation provides illustrative examples. A rule preventing governing-body members from making “unnecessarily critical” comments about their university is said to be likely to conflict with the A1 duty.
E11.2 goes further. The OfS proposes that an arrangement is adequate if it is capable of achieving compliance, and effective if it actually delivers compliance in practice. A provider must therefore be able to show not only that it has written policies, but also that it has sufficient financial capacity, people, expertise and operational resources to apply them.
This would include capacity to investigate complaints, make decisions, protect people at risk of intimidation or coercion because of their speech, and maintain governing-body oversight of risks and decisions. The governing body may delegate functions to committees or individuals, but it remains responsible for securing compliance and is expected to be properly engaged with the relevant risks.
The consultation rejects a one-size-fits-all governance template: smaller or simpler providers may have simpler arrangements, while larger and more complex organisations may need more developed systems.
Risk, records and the danger of “chilling” speech
One practical theme is the importance of decision-making records. The existing guidance says providers and constituent institutions should record decisions likely to have a substantial positive or negative effect on lawful free speech, showing how they gave particular regard to the importance of free speech.
The proposed additional governance guidance suggests that providers may benefit from a senior free-speech lead or body reporting to the governing body, annual or more frequent reports on free speech and academic freedom, clear escalation arrangements, confidential reporting routes, and better transparency about risks. These reports could encompass speaker or event decisions, security-cost decisions, complaints outcomes, court applications restricting expression, and matters relating to foreign-influence registration.
The consultation also explicitly recognises that overly complex procedures can discourage lawful speech. Providers are told to consider how forms and risk assessments relating to student activities, research or dissertations may contribute to a “chilling” effect. This is an important signal: the regulatory focus is not confined to outright bans. Excessive friction, delay or bureaucracy may also be relevant where it inhibits lawful speech in practice.
Condition E12: assessing real-world compliance
Where E11 concerns the institutional machinery, E12 concerns compliance with the substantive duties themselves. It is an ongoing condition applicable to all registered providers. The OfS says it will not assess compliance merely by asking whether an institution has policies. It will consider whether the governing body has complied with the A1, A2 and A3 duties in practice.
For the A1 secure duty, the OfS proposes to use an existing three-step approach. First, is the speech “within the law”? Second, are there reasonably practicable steps to secure it? Third, if there is an interference with speech, is it prescribed by law and proportionate under the European Convention on Human Rights?
For the A2 code duty, the OfS would consider whether the provider has a legally sufficient code, takes reasonably practicable steps to secure observance of it, and brings it to students’ attention annually. For the A3 promote duty, it would examine what actions have been taken to promote the importance of both lawful speech and academic freedom.
The OfS proposes a risk-based model of monitoring. It may use third-party notifications, reportable events, policies, contracts, complaints, quality assessments, data audits, information from other regulators, risk registers, proportionality analyses and conflicts registers.
Complaints under the free-speech complaints scheme are one source of intelligence, but a complaint outcome does not automatically determine regulatory action. A justified or partly justified complaint would be indicative of an E12 breach, but the regulatory assessment remains separate and wider-ranging.
The practical content of the “promote” duty
The proposed A3 guidance is deliberately framed as suggestions rather than mandatory actions. The OfS says providers are best placed to choose approaches suited to their own circumstances. Suggested measures include a single webpage gathering free-speech information; induction events and training; classroom discussion of difficult topics; debates involving differing viewpoints; guidance and training for students and staff; and visible leadership statements affirming the importance of freedom of speech and academic freedom.
The consultation also contemplates institutional neutrality as a possible approach. A provider might publicly state that it will not make organisational comments on national or global events, or support political campaigns outside its educational remit, where doing so could discourage lawful speech by students or staff. This is presented as a possible measure, not a universal requirement.
Alongside free speech, the proposed guidance addresses non-disclosure agreements. It states that providers and constituent institutions must not enter into NDAs with staff, members, students or visiting speakers in relation to complaints involving sexual abuse, sexual harassment, sexual misconduct, bullying or harassment; an NDA entered into in such circumstances would be void.
Proportionality, equality and further education colleges
The OfS repeatedly presents its approach as risk-based and proportionate. It says it does not intend to prescribe identical governance arrangements or wording for every provider, recognising variation in size, structure, legal form and risk profile. Its stated objective is to focus regulatory activity where intelligence indicates increased risk of non-compliance, rather than impose significant additional burdens on compliant providers.
For further education colleges without, or not seeking, degree-awarding powers, the OfS proposes a lower-burden route. Instead of reapplying broader governance conditions, it would require relevant governing documents, a self-assessment of management and governance arrangements, and—in appropriate cases—a declaration of relevant Department for Education interventions concerning financial health or controls.
The consultation also addresses equality. The OfS states that free-speech duties do not protect unlawful discrimination or harassment and do not require providers to act unlawfully, including where securing speech would unlawfully interfere with Convention rights. It acknowledges that some people with protected characteristics may feel negatively affected by lawful speech they find offensive, while others may feel more able to express their own lawful views.
