However, a closer reading reveals a number of important refinements that shed light on how the OfS expects universities and colleges to navigate increasingly complex free speech. The most striking feature of the update is its increased emphasis on the Human Rights Act framework.
While the original guidance focused principally on securing lawful speech, the revised version places much greater weight on the interaction between freedom of expression and other Convention rights. Throughout the document, the OfS moves away from presenting free speech as a stand-alone consideration and instead frames it within a broader balancing exercise involving multiple rights and competing interests.
Article 17
One of the most significant legal additions is the insertion of new paragraphs 16A and 16B, introducing Article 17 of the European Convention on Human Rights. Article 17 prevents Convention rights from being used to destroy other Convention rights. The revised guidance makes clear that speech reaching this threshold falls outside Article 10 protection altogether and therefore falls outside the scope of the statutory free speech duty. The guidance also stresses that Article 17 is reserved for exceptional and extreme.
This is a noteworthy development because the original version did not address Article 17 at all. The earlier guidance effectively divided expression into lawful speech, which was protected, and unlawful speech, which was not. The revised guidance creates a third category: expression that may not necessarily be unlawful but which is nevertheless excluded from Convention protection because it seeks to undermine the rights and freedoms protected by the Convention.
For providers, this offers an additional legal basis for refusing to facilitate certain forms of extreme expression while remaining consistent with their free speech duties.
The Three-Step Framework
The update also refines the OfSs now familiar three-step framework. The original guidance suggested that providers should proceed to Step 3 only where no reasonably practicable steps could be taken to secure speech. The revised guidance changes the logic. Providers are now told that if they are interfering with speech in any way, they should consider Step 3 and assess whether the interference is lawful and proportionate. The guidance further explains that considerations relevant to Step 2 and Step 3 may overlap.
This may seem like a subtle drafting change, but it has important implications. The updated framework recognises that universities often seek to secure speech while simultaneously regulating aspects of it. A protest may be moved to a different location. A speaker event may be moved online. A placement student may be restricted in what they can say in professional settings. The guidance now explicitly acknowledges these realities and requires providers to think about proportionality whenever restrictions are imposed.
Competing Convention rights
Other Convention rights have become more central. The new paragraph 64A reinforces this shift in emphasis. It makes clear that providers subject to section 6 of the Human Rights Act 1998 may be required to consider rights other than free expression, including Article 8 rights relating to privacy and private life. The guidance expressly states that where securing speech would itself require unlawful interference with another Convention right, there may be no breach of the free speech.
This is perhaps the clearest indication yet that the OfS sees its role as promoting lawful free speech within a broader human rights ecosystem rather than treating freedom of expression as automatically prevailing over competing interests.
New examples
Another significant addition is the entirely new Example 24A. The example concerns a medical student whose professional regulator imposes standards of conduct during clinical placements. The university restricts political advocacy in interactions with patients, while leaving the student free to engage in political speech elsewhere, including through debating societies and campus activities. The OfS concludes that this may represent a proportionate restriction focused on the time, place and manner of speech rather than its viewpoint.
This example is important because professional standards, fitness-to-practise requirements and accreditation arrangements have been recurring areas of uncertainty. The new guidance offers providers a practical template for reconciling free speech obligations with professional regulation. It also signals that narrowly tailored restrictions linked to legitimate professional objectives are likely to receive regulatory support.
One of the most politically sensitive parts of the original guidance concerned pronouns and misgendering. The revised version substantially expands Example 35. Previously, the guidance simply noted that a blanket prohibition on misgendering was problematic and that repeated deliberate misgendering could potentially amount to harassment.
The updated version goes further by introducing an explicit Convention rights analysis. It suggests that repeated and deliberate misgendering directed at a particular student might engage Article 8 rights and may, in some circumstances, justify restrictions.
At the same time, the OfS reiterates that universities should not adopt blanket rules that prohibit the expression of lawful viewpoints regarding sex and gender. The result is a more nuanced position. Rather than framing the issue solely through equality or harassment law, the guidance now places it within a broader proportionality analysis involving competing rights.
The most extensively rewritten example is Example 47, concerning a political society conference. In the original version, the university simply refused a venue request and offered alternative premises. The updated version is far more detailed. The conference is scheduled close to prayer facilities and during a religious celebration. The university conducts an assessment of Articles 8, 9, 10 and 11 rights before deciding to move the event to an alternative location and time. The guidance explains why this approach is compatible with both the duty to secure speech and the rights of those likely to be affected by the event.
The example serves as a practical illustration of the broader theme running through the revised guidance: free speech questions are increasingly being understood through the lens of competing Convention rights rather than as simple freedom of expression disputes.
Conclusion
The OfS has not retreated from its strong commitment to protecting lawful speech. The guidance continues to emphasise viewpoint neutrality, high tolerance for controversial ideas, scepticism towards reputational justifications for restrictions, and resistance to compelled ideological conformity. Those themes remain firmly embedded throughout the guidance.
The OfS remains committed to a robust conception of freedom of speech within higher education. However, the revised guidance demonstrates a greater appreciation of the complex legal environment in which universities operate. Article 17, Article 8, proportionality analysis, professional regulation and competing Convention rights all feature more prominently than before.
For providers, the key message is clear: securing free speech remains paramount, but decisions will increasingly be judged not merely by whether speech was restricted, but by whether any restrictions were carefully justified, narrowly tailored and demonstrably proportionate in light of the rights of everyone affected.
If your institution requires advice on free speech issues, please contact James Murray.