Regulatory advice 24: Guidance related to freedom of speech

Summary

1. This document provides guidance to registered higher education providers and their constituent institutions.¹ The guidance relates to their free speech duties under the Higher Education (Freedom of Speech) Act 2023.² It focuses on duties relating to:³
   1. securing freedom of speech within the law (the ‘secure’ duties); and
   2. the freedom of speech code of practice (the ‘code’ duties).⁴
2. The guidance sets out in broad terms how providers might ensure they meet the new duties. It gives example of steps that providers and constituent institutions must take to secure freedom of speech. It includes the approach we expect a provider to take to its code of practice.
3. This guidance is in three main sections.
4. Section 1 says what we mean by ‘freedom of speech’ and ‘academic freedom’.
5. Section 2 sets out a three-step framework for assessing compliance with the ‘secure’ duty. These steps apply to any measure or decision that might affect speech or types of speech. The steps are:
   1. Step 1: Is the speech ‘within the law’? The guidance sets out what this means and gives examples of laws that make speech unlawful.
   2. Step 2: Are there any ‘reasonably practicable steps’ to secure the speech? If yes, take those steps. Do not restrict the speech. The guidance illustrates factors that are likely or unlikely to affect what is ‘reasonably practicable’.
   3. Step 3: Are any restrictions ‘prescribed by law’ and proportionate under the European Convention on Human Rights? The guidance sets out that any restrictions on speech must be compatible with these requirements, if indeed there are no reasonably practicable steps to secure it.
6. Section 3 gives concrete examples of steps to secure freedom of speech that are likely to be reasonably practicable in a wide range of circumstances. These are divided by areas of activity (such as ‘Codes of conduct’ or ‘Research’). We expect to publish further examples in the future to reflect experience across the sector and our ongoing engagement with providers on these issues.
7. The guidance is not intended to provide legal advice or a comprehensive statement on the law relating to freedom of speech and academic freedom. Providers and constituent institutions should seek independent legal advice on their duties where necessary.