Freedom of speech

In January this year, the Secretary of State for Education made a statement in Parliament following the government’s review of the Higher Education (Freedom of Speech) Act 2023.

This set out the future direction for the legislation and confirmed the main duties on universities and constituent institutions of the Act that will be brought into force.

To commence shortly

For universities and colleges these include:

•  a duty to take reasonably practicable steps to secure freedom of speech within the law
• a ban on the use of non-disclosure agreements to silence victims of bullying, harassment or sexual misconduct on campus
• a requirement for all universities to have codes of practice to ensure the protection of free speech
• a duty to promote the importance of freedom of speech in higher education.

For the OfS these include:

• a duty to promote freedom of speech.

After amendment

The OfS free speech complaints scheme and free speech condition of registration will also come into force following future legislation with some amendments.

It will:

• be open to staff and visiting speakers, not students. Students will continue to have access to the Office of the Independent Adjudicator (OIA) complaints scheme for their unresolved complaints
• cover complaints about providers or their ‘constituent institutions’ (e.g. Colleges within a collegiate university), but not students’ unions; and
• give the OfS the power to consider complaints at our discretion, rather than an obligation to consider every complaint.

The mandatory registration condition on free speech will be amended to give us flexibility on how we apply this condition to different types of providers.

Other provisions of the Act will be repealed

These include:

• The provision on civil claims (the ‘statutory tort’), which provided that individuals may bring civil proceedings against a provider, constituent institution or student union in respect of breaches of the ‘secure’ duty that caused the individual to suffer loss.
• Duties on students’ unions. The Act, in its unamended form, directly imposed duties on students’ unions to take reasonably practicable steps to secure free speech and to maintain a code of practice on free speech. The Act also required us to regulate students’ unions' compliance with those duties and extended the OfS free speech complaints scheme to complaints about students’ unions. The repeal of these provisions means that students’ unions won’t have separate free speech duties and we will not regulate them directly on free speech matters. Students’ unions remain central to students’ experience of higher education and to exposing students to a range of views. They should continue to work with higher education providers to preserve their crucial role in ensuring and encouraging free speech.

Decisions around the monitoring of overseas funding remain under review.

At present universities and colleges continue to be subject to their existing free speech duties and regulatory requirements.

Next steps

It will be for Parliament and the government to decide timelines for the commencement of the relevant provisions and for the legislative change needed for other aspects of the announcement.

As a first step, we are aiming to publish guidance to help higher education meet their new duty to secure freedom of speech.

As the core duties on higher education providers and the OfS set out in the initial legislation remain unchanged, the consultation we conducted last year on our guidance and the constructive responses we received remain entirely relevant.

We therefore intend to publish a summary of these responses alongside our renewed guidance in advance of the commencement.