On 5 August 2026, the Office for Students (OfS) has published revised regulatory guidance on freedom of speech and the incoming complaints scheme for higher education providers (HEPs).

Influenced by de facto legislative changes since the Higher Education (Freedom of Speech) Act 2023 was enacted, and the judgment in Sussex v OfS, the guidance now acknowledges somewhat more clearly that providers must balance freedom of speech duties with charity law, equality law, safeguarding responsibilities and other legal obligations.

However, while the OfS guidance acknowledges the application of charity law, it is important that it better explores the interaction between it and relevant Charity Commission guidance. The extent to which providers can take comfort from the revised framework is therefore likely to depend on the OfS’s future approach to enforcement.

Freedom of speech rules: a potted history

Universities and students’ unions will be very familiar with the long-running question of how to implement the law, originally conceived in the 2019 Conservative party manifesto, to “strengthen academic freedom and free speech in Universities”. The law eventually became the Higher Education (Freedom of Speech) Act 2023.

In its original form, the legislation caused considerable concern across the sector. It combined broadly framed duties with potentially significant penalties: students’ unions, despite not being public bodies, were brought directly within scope; a new complaints mechanism sat awkwardly alongside the existing Office of the Independent Adjudicator (OIA) scheme; and a new statutory tort would have enabled a person claiming to have been “no platformed” to bring court proceedings.

The position was compounded by the publication of a consultation draft of the Office for Students’ Regulatory Advice 24 and draft guidance on the complaints scheme which caused concern among the sector, not least on the basis that it failed to recognise that a provider or students’ union needed to consider its duties under the Act alongside its wider responsibilities, for example as a charity or as an employer.

Less than a week before they were to come into effect, in July 2024 the (now) Labour government postponed the implementation of the rules, before committing in January 2025 to reintroduce them in amended form.

Students’ unions were no longer directly within scope, although they would be regulated indirectly through their associated provider. The complaints scheme was to proceed, but students, who already had access to the OIA route, could no longer use it; its principal users would instead be staff and visiting speakers. The statutory tort was removed. The OfS’s draft regulatory guidance now out-of-date, the sector awaited a further substantive statement on the regime from the regulator.

Meanwhile, in 2025 the OfS fined Sussex University £585,000 for perceived freedom of speech failings. The fine was overturned by the court in April 2026 on several substantive grounds, concluding (among other things) that it had misunderstood what “freedom of speech within the law” meant; and the decision was fundamentally affected by bias.

On 5 August 2026, the OfS issued two new documents. One is a revised version of Regulatory Advice 24, designed to address the changes to commencement of the law and the Sussex v OfS court decision. The second is a revised plan about how the new slimmed-down complaints scheme will work.

Revised regulatory guidance

The guidance moves closer to recognising that organisations do not further freedom of speech in a vacuum and that they are subject to a web of different regulatory obligations.

It retains its three-step analysis which providers (and by extension SUs) should take to deal with this kind of issue. Broadly, as set out in the new guidance, these steps are:

  1. First, work out whether speech is “within the law” and so protected at all.  The guidance refers here, as examples of speech outside of the law, to action which might destroy other human rights guaranteed by the European Convention on Human Rights (which it says is a “very high threshold”), as well as rules relating to confidentiality and privacy (but not contractual ones), “unlawful harassment” or “unlawful incitement to hatred or violence”.
  2. Second, work out what is reasonably practicable to do (or not to do) to secure the speech. The OfS considers here that you could consider not taking steps in order to maintain the essential functions of higher education (e.g. teaching and, to an extent, they express sympathy for graduation ceremonies etc.). Another example given is “physical safety”, a formulation which appears several times.  It is clear that it considers reputational impact, or whether an action aligns with the entity’s “aims or values” is irrelevant.
  3. Third, establish whether there can be restrictions which are “prescribed by law” and proportionate – which the OfS considers to be “very difficult” in a higher education context.

The guidance remains punctuated with a series of practical examples – although as currently drafted it is not clear that these are in all cases entirely consistent with the underlying guidance, such as in how to deal with a visiting speaker who has a history of unlawful speech. We hope that as the guidance evolves, the OfS will develop a clearer and more consistent position.

Importantly, the guidance does now allude briefly to the charity regulatory regime, to note that it considers that “charity law and the [2023] Act could both be relevant factors in trustees’ decision-making. Steps that a charity will need to take to comply with the “secure” duty will depend on the specific facts and what is reasonably practicable in the circumstances. However, particular regard will need to be given to the importance of freedom of speech”. 

While this is accurate and certainly not unhelpful, in fact most affected HEPs (and SUs) are charities – and the guidance could and should more helpfully expand on how charity law should be considered by those affected, rather than making a reference to this in passing.  In particular, the guidance could and should acknowledge that for a charity, (i) promotion of its “aims”  (which the OfS expressly lists as an irrelevant factor) is the most fundamental charity law obligation; (ii) the charity regulator (the Charity Commission) thinks that considering the reputation of the charity is a relevant factor in the discharge of the charity trustees’ duties; and (iii) the charity regulator also has wider guidance on safeguarding and extremism which encourages a wider category of protective actions than tolerated under the OfS guidance.

While for most charities, these principles of charity law fall within the remit of the Charity Commission, the OfS is the ‘principal regulator’ of exempt charities in the higher education sector –  and as such is itself charged with compliance by those providers with their charity law duties. It is very important, to ensure that the regime is effective and workable for regulated bodies, that the Charity Commission and OfS are joined up about this.

New complaints scheme

In the revised complaints scheme document, the OfS has taken on board a measure of the consultation feedback.

Many of the previous issues raised by the sector have been resolved by the exclusion of students from the regime in duplication of the OIA framework: for example, in the last draft of the guidance, any graduate of a University could complain about any alleged breach of freedom of speech duties at that University. The provider / SU (and for that matter the OfS) would likely not have had resources for that. Now students are not within the scope of the regime, graduates are not either.

Providers are given a grace period of 90 days to conduct an internal investigation before the OfS will look at a complaint, rather than 30 days.

But there are still procedural inequalities. Both the respondent University and the complainant are given 14-day windows to respond to enquiries, where the OfS has no equivalent timeline. This could be difficult, particularly during holiday periods and/or where liaison between the HEP and SU is required, and underscores the importance of good centralised decision-making and record-keeping in relation to any internal investigations. OfS has not committed to always seek representations from parties before making a final decision, stating only that it will “normally” do so.

There is still a power for the OfS to issue broad “recommendations” with which compliance is “expected…within the time limits we set”. While it remains to be seen how this is enforced, we would suggest that the OfS consults the respondent on the “recommendations” before making them to ensure, for instance, that it considers that it is legally permitted to comply with them.

The provider is still liable to pay the OfS’s costs for the investigation: this remains a difficult proposition, although it was more practically difficult when the respondent might have been a students’ union.

Conclusions

The guidance has moved in the right direction. Looking at it holistically, it is possible to envisage a model where a regulated body is trusted to apply this framework sensibly, promoting robust discussion and debate on campus in a way which is calculated to avoid the propagation of hate or the bullying and harassment of marginalised groups. Fundamentally, this is the formula which would most effectively further education, which is the underlying principle behind both the freedom of speech and charity law regimes.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice.