Bridget Phillipson, Secretary of State for Education, recently announced that some provisions of the Higher Education (Freedom of Speech) Act 2023 will come into force on 1 August this year. Originally introduced under the Conservative government in May 2021, the Act aims to strengthen existing free speech duties, create a culture of free speech within higher education institutions and introduce a greater degree of accountability for those institutions to comply with their obligations.
What was initially proposed?
The Act, in its original form, introduced several major reforms, including:
- a Free Speech and Academic Freedom Champion, with powers to promote free speech, investigate violations and recommend appropriate remedies for breaches;
- a requirement for the Office for Students (OfS) to enforce new registration conditions on free speech;
- strengthening of the existing free speech duty[1], to include a duty on higher education providers to “actively promote” free speech;
- extension of this duty to Student Unions;
- introduction of a statutory tort, allowing individuals to sue institutions for free speech breaches;
- improved academic freedom protections, including extending these to cover recruitment and promotion;
- collaboration with higher education providers to set minimum standards for free speech codes of practice; and
- prohibiting non-disclosure agreements that prevent victims of bullying and harassment from raising their complaints publicly.
What is changing under the Labour government?
The Labour government have scaled back and delayed some of these provisions, while others have been abandoned altogether. A government press release[2], in January of this year, scrapped some “burdensome provisions” which the Labour government felt were “unnecessary”.
This included the statutory tort remedy, which was removed amid criticism that it could put excessive financial strain on universities and encourage vexatious litigation. There were also concerns that the fear of legal action might encourage universities to be overly tolerant of hateful or degrading speech. The obligations on Student Unions have been removed as well, meaning that Student Unions will not have face increased legal responsibilities or OfS oversight regarding free speech.
Other key provisions have been delayed, but not officially cancelled, and will likely come into effect at a later date. Most notable are:
- The OfS registration conditions (section 6): requiring the OfS to ensure that its ongoing registration conditions require institutions to comply with their free speech duties, and have governing documents consistent with this compliance.
- The free speech complaints scheme (section 8): which will be provided by the OfS and will allow eligible persons to claim for adverse consequences they have faced as a result of institutions failing to uphold their free speech duties. The OfS will have powers to investigate these claims and to punish institutions who are found to be in breach.
- Director for Freedom of Speech and Academic Freedom (section 10): this would be a new role within the OfS, created to oversee its free speech functions.
- Decisions about the monitoring of overseas funding (section 9): these remain under review.
What is coming into force in August?
The recently passed 2025 Regulations set out the sections of the Act which come into force in August of this year. In summary, these are:
- Free Speech Duty (section 1): this imposes a duty, on the governing bodies of all higher education providers, to take reasonable steps to protect lawful freedom of speech for staff, members, students and visiting speakers, including securing “academic freedom” for academic staff. It also requires higher education institutions to maintain and comply with a code of practice in order to facilitate their free speech duties and promote the importance of freedom of speech and academic freedom in the provision of higher education. This section bans non-disclosure agreements between institutions and any person making a free speech complaint.
- Extension of Duty to Constituent Institutions (section 2): this imposes the same duties set out above on any constituent college, school, hall or other institution of the provider.
- Definition of Student Unions (section 3): inserts a definition of “Student Union” into the Act, but does not impose any obligations on them. As mentioned above, those proposed obligations were scrapped by the Labour government.
- OfS General Functions (section 5): creates an obligation on the OfS to promote the importance of freedom of speech, and the academic freedom of academic staff, within higher education institutions. The OfS will have statutory rights to identify good practice in relation to free speech and academic freedom, and to give advice about this to higher education providers. Notably, as set out above, other OfS functions are not yet coming into force.
- Schedules Part 2 and Part 3: these amend some definitions in the Counter-Terrorism and Security Act 2015 and the Education (No 2) Act 1986, to align these more closely with this Act.
Comment
Provisions aiming to strengthen existing free speech laws in higher education institutions in England and Wales will be coming into force this August. Universities should prepare for this by:
- developing a robust free speech code of practice, or updating any existing code, to ensure compliance with the new Act;
- reviewing governance and internal processes for dealing with free speech and academic freedom issues; and
- ensuring staff, members, students and visiting speakers are informed on the new Act and its implications.
Although more extensive regulatory enforcement is yet to arrive, universities that fail to prepare could face reputational risks and future sanctions once remaining provisions come into effect and the regulatory role of the OfS is implemented.
If you are keen to find out more about how to best prepare for the new free speech duties, please contact one of the CMS team.
Co-authored by Amy McKeown and Thomas Samuel, Trainee Solicitors
[1] Education (No 2) Act 1986 s.43
[2] Government reaffirms commitment to Free Speech in universities - GOV.UK
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