Update on Freedom of Speech Act

Earlier this year, the government announced decisions on the implementation of the Higher Education (Freedom of Speech) Act 2023. We welcomed the decision to go ahead with measures to protect and promote freedom of speech and academic freedom.

The core mission of universities and colleges is the pursuit of knowledge and the principles of free speech and academic freedom are fundamental to this purpose.

Background  

The Higher Education (Freedom of Speech) Act received royal assent in May 2023. The Act provided, among other things, for: extended free speech duties on higher education providers, new duties on constituent institutions and students’ unions and a free speech complaints scheme, and a new condition of registration to be implemented by the Office for Students (OfS). Some of its provisions were already in force by last July at the time of the general election.  

In July 2024, the new government announced its decision to stop the implementation of the remaining provisions of the Act and to consider the approach it wished to take. This meant that our free speech complaints scheme did not open, and our regulation of students’ unions did not start, on the anticipated commencement date of 1 August 2024.  

Key changes

In January this year, the Secretary of State made a statement in Parliament following the government’s review of the Act. This set out the future direction for the legislation and confirmed the main duties on universities and constituent institutions of the Higher Education (Freedom of Speech) Act 2023 that will be brought into force and 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.  

The OfS’s duty to promote freedom of speech will also commence shortly. My role as free speech director will continue.  

The OfS’s obligation to operate a free speech complaints scheme and ability to impose a free speech condition of registration will also come into force following future legislation with some amendments. The complaints scheme will now:

• 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.

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 about 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.

What next? 

I am looking forward to continuing in my role and to picking up this really important work on implementation. 

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. However, we do know that the Secretary of State envisages the duties on providers and on the OfS will commence shortly.  

So, we and higher education institutions need to prepare for this now. 

As a first step, we are aiming to publish guidance to help higher education institutions 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 many constructive responses we received – remain entirely relevant. We therefore intend to publish a summary of these responses alongside our final guidance in advance of the new duties coming into effect.

We’re also thinking about the best ways to promote the importance of freedom of speech in higher education. These could include (among other things) sharing model codes or policies, checklists for relevant freedom of speech processes, the co-ordination of responses to external threats, or convening events for sharing best practice. Universities and colleges will be doing this too, and I believe that there is much to be gained from collaboration with them on these important issues. I am therefore keen to engage with stakeholders now on the most effective ways to approach the promotion of freedom of speech.

We will update our website as timelines become clearer. In the meantime, I look forward to working with the sector to develop approaches that encourage a robust and open attitude to discussion, teaching and research in our universities and colleges.