Regulatory advice 24: Guidance related to freedom of speech

Introduction

8. The core mission of universities and colleges is the pursuit of knowledge. Free speech and academic freedom are fundamental to this purpose. Without free speech there are no new ideas. There is no productive debate. There is no social progress. There is no challenge to conventional wisdom. Even where conventional wisdom reflects truth, it must be open to criticism and discussion. Otherwise, living understanding becomes what John Stuart Mill called ‘dead dogma’.
9. All staff and students are therefore entitled to teach, learn and research in a culture that values vigorous debate. Perhaps most importantly, this includes difficult, contentious or discomforting topics. Higher education providers and constituent institutions should have a high tolerance for all kinds of lawful speech. There should be a very strong presumption in favour of permitting lawful speech.
10. The Higher Education (Freedom of Speech) Act 2023 (‘the Act’) amends the Higher Education and Research Act 2017 (‘HERA’) to strengthen the legal requirements placed on universities and colleges relating to freedom of speech and academic freedom.
11. The Act protects free speech within the law. It does not protect unlawful speech. The Act requires providers and constituent institutions to take reasonably practicable steps to secure free speech within the law for their students, staff and members and for visiting speakers. It also requires them to maintain a free speech code of practice and to promote the importance of freedom of speech within the law and academic freedom in the provision of higher education.
12. In more detail, HERA as amended by the Act imposes duties on providers and constituent institutions in relation to freedom of speech and academic freedom. It requires the governing body of each provider and constituent institution, among other things:
    1. to take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to secure freedom of speech within the law for its students, staff and members and for visiting speakers. This includes, in relation to academic staff, securing their academic freedom (section A1 and section A4 of Part A1 of HERA) (the ‘secure duty’); and
    2. to maintain a code of practice setting out matters relating to freedom of speech (section A2 and section A4 of Part A1 of HERA) (the ‘code’ duty).
13. HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.