The Office for Students (OfS) has launched a consultation on new registration conditions that would place freedom of speech and academic freedom at the heart of university governance. 

If implemented in their current form, the proposals will require universities not only to review their policies and governing documents, but also to demonstrate active compliance in practice.

With the proposed conditions due to take effect on 1 April 2027, you should begin reviewing your governance arrangements now to ensure you are prepared for the new regulatory expectations.

The new conditions: E11 and E12

1. Condition E11 focuses on governance arrangements: A university's governing documents must be consistent with its free speech obligations, and its management and governance arrangements must be adequate and effective to secure compliance.
2. Condition E12 focuses on compliance in practice: It requires governing bodies to comply with the statutory free speech duties under the Higher Education and Research Act 2017 (amended by the Higher Education (Freedom of Speech) Act 2023), including the A1 duty to secure freedom of speech, the A2 duty to maintain a code of practice, and the A3 duty to promote the importance of freedom of speech and academic freedom.

Evidencing compliance in practice

The OfS has made clear that E12 is not satisfied simply by having appropriate policies in place. In addition, governing bodies will need to demonstrate that those duties are being implemented effectively in practice.

The consultation suggests that regulatory scrutiny is likely to focus on evidence of practical implementation of policies. A significant compliance risk may therefore arise if universities struggle to evidence how they operate their freedom of speech policies and secure academic freedom in practice. 

You may need to provide proactive and documented advice and guidance to staff, together with evidence of how your institution has determined whether lawful speech should be protected or restricted following a proportionality assessment.

Governing documents

The OfS expects universities to review their governing documents to ensure they are consistent with the free speech duties before the conditions take effect on 1 April 2027.

This exercise is likely to require more than a light-touch review. Governing documents encompass a wide range of materials. These include foundational instruments such as Royal Charters, memoranda and articles of association, and trust deeds. 

They also include governing body documents, risk and audit documentation, decision-making frameworks, conflicts of interest policies, and other documents that regulate a university’s operation and governance. 

In the University of Sussex challenge to the OfS fine, the Court held that the University’s Trans and Non-Binary Equality Policy Statement was not a governing document.

Practical steps for your governing document review:

1. Undertaking a structured audit of governing documents against the free speech duties. Universities should not assume that existing documents are compliant because they pre-date the new regime.
2. Paying particular attention to provisions that may prohibit or discourage the expression of lawful viewpoints, impose belief-based restrictions on staff, students, members or visiting speakers, or fail to recognise obligations arising from external bodies as potential conflicts of interest requiring declaration.
3. Amending documents that may prevent or hinder compliance before the conditions take effect.
4. Recording the review process. Although the OfS is not expected routinely to request these records, universities subject to scrutiny are likely to benefit from being able to evidence a documented and considered compliance programme.

Reviewing your free speech code of practice

While a university's free speech code of practice will not ordinarily constitute a governing document, governing bodies may wish to include it within the scope of any compliance review. In particular, consider whether the code operates consistently with the institution's governing documents and wider policy framework, and whether any provisions create practical barriers to compliance with the free speech duties.

Governance arrangements: Adequacy and effectiveness

The governance obligations under E11.2 may extend further than many universities currently expect.

An arrangement is 'adequate' if it’s capable of delivering compliance. It is 'effective' if it delivers compliance in practice. Both requirements must be met. This means universities will need not only appropriate governance structures, but also the capacity, resources and oversight necessary to ensure that those arrangements operate effectively.

What the OfS will look for

When assessing whether arrangements are adequate and effective, the OfS is likely to expect universities to be able to demonstrate:

• How they understand the relevant legal requirements and what training is provided to staff.
• How free speech risks are escalated to senior leadership and governing bodies.
• How risks are identified, recorded and mitigated.
• Whether the institution has a culture in which concerns can be raised and considered appropriately.

How to strengthen your free speech governance

You should therefore consider taking the following steps:

• Mapping free speech decision-making against existing schemes of delegation. Significant decisions, such as cancelling a speaker event because of the speaker's  views, restricting an academic's freedom to teach or undertake research, or taking disciplinary action connected to lawful speech, should be escalated to an appropriately senior level.
• Ensuring that governing bodies receive regular reporting on free speech matters, including internal complaints, decisions relating to speaker events, security cost decisions, and outcomes of relevant investigations or complaints.
• Considering whether responsibility for oversight of freedom of speech and academic freedom should be assigned to a suitably senior individual or committee, with responsibility for identifying and reporting emerging risks.

The duty to promote freedom of speech and academic freedom

The A3 duty is arguably the most novel and operationally demanding of the statutory obligations.

It requires universities to take positive steps to promote the importance of freedom of speech and academic freedom rather than merely having regard to those principles when carrying out other activities.

This is likely to have implications across a range of university functions, including curriculum design, induction programmes, staff development and institutional culture.

Promoting free speech: Practical steps for universities

You may wish to consider:

• Including freedom of speech and academic freedom training within student and staff induction programmes and refreshing that training periodically.
• Ensuring that international students and visiting scholars are provided with clear and accessible information regarding freedom of speech expectations, institutional values and relevant disciplinary processes.
• Reviewing whether your approach to commenting on matters of political or social controversy remains consistent with your free speech obligations and broader governance objectives.
• Assessing whether administrative processes, including speaker approval procedures and risk assessment requirements, are proportionate and do not inadvertently discourage lawful speech.

The complaints scheme: A hidden compliance risk

You should be mindful that the OfS free speech complaints scheme, in effect since August 2026, operates alongside conditions E11 and E12.

The OfS is lilely to view a finding that a complaint is justified or partly justified as evidence of potential non-compliance, which may contribute to wider regulatory scrutiny.

Similarly, a failure to engage with or implement recommendations may increase the risk of further regulatory intervention.

The consultation document makes clear the OfS may also take into account information arising from complaints when assessing compliance with broader registration conditions, alongside information from other bodies, including the Office of the Independent Adjudicator and the Department for Education.

The consultation window: An opportunity to shape the final framework

The consultation remains open until 23 November 2026.

If you have concerns about particular issues, such as complex governance structures, international partnerships or the relationship between universities and students' unions, you should consider responding directly or engaging through sector representative bodies.

Given the timescales involved, you may need to begin preparatory work before the final guidance is published. Governance reforms can take considerable time to implement, and 1 April 2027 may arrive sooner than your internal decision-making cycles permit.

Key takeaways

• Review governing documents and governance frameworks well before 1 April 2027.
• Ensure governance arrangements are both capable of delivering compliance and demonstrate effectiveness in practice.
• Develop detailed evidence of compliance, including training records, reporting processes and risk management procedures.
• Treat complaints and complaint outcomes as potential indicators of wider regulatory risk.
• Use the consultation period to raise concerns to help shape the final regulatory framework.

For advice on governing document audits, code of practice reviews, or managing free speech compliance within your governance framework, please contact Trish D’Souza and Bradley Evans in our higher education team.