Universities must prepare for ‘freedom of speech’ Act coming into force

The government confirmed earlier this month that it would bring in a number of provisions of the suspended Higher Education (Free Speech) Act 2023 into force on 1 August.

Originally given Royal Assent in 2023, the Act aims to strengthen existing free speech duties within higher education institutions and introduce oversight from the Office for Students (OfS), the independent regulator of higher education in England. The Act was due to come into force on 1 August 2024 but was suspended amid criticisms and ongoing judicial review from free speech campaigners.

In January, the government announced that the majority of the original Act would enter into force, while some provisions would be amended or even repealed. The judicial review from the Free Speech Union was heard on 23 January, and  the case remains live pending the High Court receiving a detailed statement from the government about the Act’s commencement before July.  

Following a review of the legislation, the government said that several provisions in the original Act were now deemed “unnecessary”, risked having a chilling effect on free speech and could leave “universities vulnerable to disproportionate costs for legal disputes”. Such provisions, including the right for individuals – including staff, students and visiting speakers – to bring claims directly under a statutory tort, were duly removed.

Under the updated provisions due to come into effect in August, the government will strengthen the free speech duty on governing bodies of all higher education providers in England and Wales to take reasonable steps to protect lawful freedom of speech for staff, members, students and visiting speakers, including securing “academic freedom” for academic staff.

The free speech duty includes a requirement on higher education institutions to maintain and comply with a code of practice to help promote the importance of freedom of speech and academic freedom in the provision of higher education; and an additional ban on drafting non-disclosure agreements (NDAs) between institutions and any person making a complaint about harassment or sexual misconduct against their institution. The same duty has also been extended to apply to any constituent college, school or hall of an institution.

From 1 August the OfS will have additional powers 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 offer advice about this to higher education providers. A definition of “Student Union” will also be inserted into the Act, but no other OfS functions will come into force at this time.

Julian Sladdin, higher education expert at Pinsent Masons, welcomed the government’s confirmed timeline for implementing these provisions, but said clarity was still needed on when any other outstanding provisions would be enforced. “Although the effect will be to strengthen the existing statutory duties which universities in England and Wales have to protect free speech and academic freedom within the law, there are still some notable sections of the Act which remain on pause, including the implementation of a complaints scheme overseen by the OfS.”

Under the proposed free speech complaints scheme, the OfS will allow eligible individuals to claim for adverse consequences they have faced as a result of institutions failing to uphold their free speech duties. The OfS will also be granted powers to investigate these claims and to punish institutions who are found to be in breach. However, the timeline for implementing this provision has not yet been confirmed by the government.

The new provisions will also ensure that the OfS’ ongoing registration conditions require institutions to comply with their free speech duties and have governing documents consistent with this compliance.

Amendments will be made to some definitions in the Counter-Terrorism and Security Act 2015 and the Education (No 2) Act 1986 – which include a “Prevent Duty” requiring institutions to have "due regard to the need to prevent people from being drawn into terrorism" – to align them more closely with this Act.

Commenting on the implementation of the new provisions in August, Sladdin said: “It is currently unclear whether any transitional period will be granted to institutions to put in place changes to their procedures and codes to ensure compliance with the belatedly introduced changes as there was a previous commitment by OfS to give universities time to comply when the Act was first approved and there is now an extremely short window before its current implementation date.”

Despite the lack of clarity on when any of the further and outstanding provisions might take effect, Sladdin said universities in England and Wales would need to review their compliance with the Act ahead of the new provisions coming into force.

“Even without the complexity of the OfS complaints scheme, universities will still need to review and revise their free speech code of practice to ensure compliance with the new Act, review governance and internal processes for dealing with free speech and academic freedom issues; and ensure staff, students and visiting speakers are made aware of the new Act and its implications,” he said. “Even without the anticipated regulatory complaints and enforcement processes, universities that fail to prepare could face reputational and legal risks once remaining provisions around OfS' wider role come into effect."