The OIA’s experience suggests that freedom of speech concerns rarely arise as standalone complaints. Instead, they commonly emerge within broader disputes, such as disciplinary proceedings, complaints about comments made by staff or students, allegations of unfair treatment based on views expressed by a student, or concerns about the assessment of academic work.
As a result, institutions may face external scrutiny of free speech issues through multiple routes depending on the identity of the complainant and the nature of the complaint.
The Impact of the Sussex Judgment
The launch of the complaints scheme follows the well-publicised University of Sussex case, which prompted the OfS to review elements of its approach to freedom of speech regulation.
Alongside the new scheme, the OfS has updated its regulatory guidance, including:
- Amendments to its three-stage framework for assessing restrictions on lawful speech
- Further clarification on the relationship between freedom of speech duties and European Convention on Human Rights protections
- Additional guidance on proportionality and decision-making
The Sussex case highlighted the legal and practical challenges universities regularly face. Institutions are often required to balance competing obligations, including:
- Freedom of speech and academic freedom
- Equality and anti-discrimination duties
- Protection from harassment
- Health and safety responsibilities
- Wider student welfare considerations
The challenge for universities is not whether freedom of speech is important. Rather, it is how to balance competing legal rights in complex and often contentious situations.
Although the revised guidance seeks to provide greater certainty, many institutions may find that difficult questions remain, particularly when dealing with controversial speakers, campus protests, academic disputes or politically sensitive issues.
Why the New Regime Increases Regulatory Risk
Perhaps the most important consequence of the new complaints scheme is that it shifts the focus from policy design to decision-making in practice.
Over recent years, many universities have invested considerable time reviewing free speech policies, updating codes of practice and strengthening external speaker procedures. However, regulatory scrutiny will now focus not just on what policies say, but on how institutions apply them.
This distinction is critical. A well-drafted freedom of speech policy will offer limited protection if decision-makers cannot demonstrate how they balanced competing rights and reached a proportionate outcome.
Universities should therefore expect increased scrutiny of:
- Event approval decisions
- Restrictions placed on speakers or activities
- Internal academic disputes
- Complaints handling processes
- Governance and oversight arrangements
- Record-keeping and decision-making documentation
The institutions most exposed to regulatory risk may not necessarily be those that reach the wrong conclusion, but those that cannot demonstrate how and why a decision was reached.
The introduction of the OfS complaints scheme should also be viewed alongside the OIA’s established student complaints jurisdiction. Universities may therefore find free speech-related decisions scrutinised by different external bodies, each considering whether the institution followed appropriate procedures, took account of relevant legal duties, and reached a reasonable outcome.
Practical Steps Universities Should Take Now
1. Review Freedom of Speech Policies
Policies should accurately reflect current legal duties and regulatory expectations. Institutions should also ensure that policies are capable of being applied consistently in practice.
2. Audit Decision-Making Processes
Universities should examine how decisions relating to freedom of speech are made, documented and reviewed. Clear governance structures and escalation procedures will become increasingly important.
3. Strengthen Record-Keeping
The OfS is likely to examine the reasoning behind decisions as closely as the decisions themselves. Maintaining comprehensive records and contemporaneous notes will be essential evidence if a complaint is brought months or years later.
4. Train Staff and Decision-Makers
Those responsible for speaker events, student conduct matters, complaints and governance should understand the legal framework and be able to identify situations where competing rights require careful assessment.
5. Prepare for Regulatory Investigation
Institutions should consider now how they would respond to an OfS investigation, including document retention practices, internal reporting pathways and legal oversight arrangements.
Looking Ahead: Freedom of Speech as a Governance Issue
The OfS has made clear that freedom of speech and academic freedom are fundamental features of the higher education sector. The introduction of the Freedom of Speech Complaints Scheme signals that these issues will remain firmly on the regulatory agenda.
For universities, the key challenge is not simply compliance with the new rules. It is developing governance frameworks and decision-making processes that can withstand external scrutiny when difficult cases arise.
With both the Office for Students and the Office of the Independent Adjudicator for Higher Education continuing to play important roles in the free speech landscape, institutions should ensure that their policies, procedures and decision-making processes are capable of withstanding scrutiny from multiple regulators and complaints bodies.
Institutions that take a strategic approach, focusing on robust evidence, clear reasoning and consistent application of policies, will be best placed to navigate the increasing regulatory and reputational risks associated with freedom of speech disputes.
How Doyle Clayton Can Help
Freedom of speech disputes sit at the intersection of education regulation, employment law, equality obligations and governance. Universities increasingly need practical, legally robust advice that reflects the realities of institutional decision-making.
Doyle Clayton advises higher education providers on freedom of speech compliance, governance, investigations, regulatory engagement, disciplinary matters and complex employment issues. Our team can help institutions review policies, strengthen decision-making processes and prepare for the introduction of the OfS complaints scheme.
The articles, webinars or podcasts published on this website are current at the date of publication and are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. We cannot assume legal responsibility for the accuracy of any particular statement. Specific legal advice about your own circumstances should always be sought separately before taking any action.
