Higher Education (Freedom of Speech) Act 2023 – FAQs

Yes, if they are registered higher education providers in England (HE providers)[1]. Colleges that are not registered HE providers, for example because they solely provide further education, are not included. The Act also places duties on ‘constituent institutions’ which includes any constituent college, school, hall or other institution of the HE provider.  

The purpose of the Act is to support and strengthen freedom of speech and academic freedom in higher education. It is introduced in a wider context of Government concerns that these freedoms are under threat, commonly cited examples of this being so-called ‘cancel culture’ and ‘no-platforming’. Its objective is to ‘secure freedom of speech within the law’ for HE provider staff, members, students and visiting speakers. In relation to academic staff, the Act specifically states that this includes securing their ‘academic freedom’. 

These are two key concepts within the Act, both with important implications for HE providers. 

Academic freedom is defined as the freedom (within the law) of academic staff to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected through loss of their jobs or privileges at the HE provider or the likelihood of their securing promotion or different jobs at the HE provider being reduced.

Freedom of speech is defined as the freedom to impart ideas, opinions or information[2] by means of speech, writing or images (including in electronic form). 

The duties imposed by the Act relate to “freedom of speech within the law”, making it clear that illegal forms of speech (eg harassment, inciting violence or terrorism etc) are not covered by the Act. 

The Act amends existing legislation[3] to introduce new duties for HE providers and certain types of students’ unions[4], and the Office for Students (OfS), the regulator of higher education in England. The OfS’s remit is extended to include the regulation of students’ unions, the creation of a new complaints scheme under which those who have suffered loss as a result of a HE provider breaching their freedom of speech or academic freedom duties can seek redress, and a new role is created at the OfS of Director of Freedom of Speech and Academic Freedom. The Act also prohibits HE providers from using non-disclosure agreements (including of the type used in agreements to terminate employment relationships) to silence people who have complained about sexual misconduct or other types of harassment or bullying. The Act states that if such agreements are entered they will be void. 

Governing bodies of HE providers must:

• take reasonably practicable steps to achieve the objective of securing freedom of speech within the law for the provider's members, staff and students and for visiting speakers.  This includes taking reasonably practicable steps to 
  • (i) ensure that the use of the provider’s premises is not refused because of a person's ideas or opinions, or a body's policy or objectives, and that the terms on which premises are provided are not based on those grounds; 

  • (ii) secure academic freedom for academic staff. This is an existing principle which includes circumstances where an academic member of staff might be put at risk of losing their job or privileges or is seeking promotion or a different job at the provider. In addition, there is a new separate duty with similar provision in respect of external applicants for an academic role at a provider; 

  • (iii) ensure that individuals or bodies that use the provider’s premises are not required to bear some or all of the costs of security except in exceptional circumstances; and 

  • (iv) ensure that the provider does not enter into non-disclosure agreements with members, staff and students and visiting speakers in relation to complaints of sexual abuse, harassment or misconduct, or other bullying or harassment complainants;

maintain a freedom of speech Code of Practice setting out how it will fulfil the above duty and other information including the provider’s values; procedures and conduct to be followed by staff and students and any students’ union in connection with organising certain types of meetings and activities on the provider’s premises. HE providers must take reasonably practicable steps to ensure compliance with the Code of Practice and bring it to students’ attention at least once a year; and

promote the importance of freedom of speech within the law and academic freedom for academic staff in the provision of higher education.

Duties also apply to students’ unions at certain types of HE providers that are eligible for financial support – known as approved (fee cap) providers. Such students’ unions must: take such steps as are reasonably practicable to secure freedom of speech within the law for members of the students union, students, staff (of both the students union and the provider) and visiting speakers. This includes securing that the use of any students’ union premises is not denied or the terms of use based on any individual’s ideas or opinions, or a body’s policy, objectives or the ideas of their members. 

To achieve this, students’ unions are required to take similar steps to those described above for governing bodies of HE providers, including having and publicising a Code of Practice. In addition, students unions must not refuse to be affiliated with any student society on the basis of the society’s policy, objectives or the ideas or opinions of its members. 

Does the Act change the OfS’s remit?

Yes, the Act extends the OfS’s remit, creating new duties and functions as set out below. The Act places duties on the OfS to:

• promote the importance of freedom of speech within the law and academic speech for all academic staff of registered HE providers in the provision of higher education;  

• create new conditions of (both initial and ongoing) registration for HE providers requiring that:
  • the provider’s governing documents are consistent with compliance by the governing body of the institution with its duties under the Act and that it has in place adequate and effective management and governance arrangements to secure compliance; and

  • the governing body of the provider complies with its duties under the Act; and

  • the governing body of relevant HE providers keep the OfS informed of its students’ unions (if any).

The Act also creates new functions for the OfS, including:

• regulation of students’ unions, including the power to impose monetary penalties for failure to comply with duties; 

• the operation of a free speech complaints scheme under which the OfS is to review and determine free speech complaints;

• to monitor overseas funding of registered HE providers and students’ unions with a view to assessing the extent to which the funding presents a risk to freedom of speech within the law and academic freedom of academic staff; and

• a new role of Director for Freedom of Speech and Academic Freedom.

The Act introduces a new statutory tort for breach of specified freedom of speech duties. This enables individuals to bring legal proceedings against the provider, a constituent institution and/or students’ union in respect of breaches of their duties that have caused the individual to sustain a loss. The loss does not have to be financial.

The claimant must first bring a complaint about the matter under a relevant complaints process (either the new OfS free speech complaints scheme or the complaints scheme operated by the Office of the Adjudicator for Higher Education) and have received a decision as to whether the complaint was justified or not. The exception to this is where an injunction is sought given the urgency involved.

The Act received Royal Assent on 11 May 2023, however only a small portion of its provisions have come into force so far, with the only substantive change being the appointment of the Director for Freedom of Speech and Academic Freedom. The provisions relating to the duties of registered HE providers, their constituent institutions and students’ unions, civil claims and the new complaints scheme have not yet taken effect. 

The OfS says it is working with the Department for Education to implement the remaining provisions of the Act and on 14 December 2023 it published two consultations on the free speech complaints scheme on regulating student unions on free speech matters, those consultations can be accessed here. Other parts of the Act are expected to come into force in two phases in August 2024 and September 2025 - see indicative timings here.

General

• Consider whether the college has any ‘constituent institutions’ as defined above and the implications for them

• If the college is an approved (fee cap) provider, liaise with any students’ unions to ensure awareness of new duties (training and support may be required)

• Consider introduction of a ‘disagreeing well’ campaign and student training piloting a new online course to help students understand the importance of freedom of speech as a concept and demonstrate how vital it is to enable ideas, concepts and viewpoints to be explored, tested, and challenged in colleges

• Consider what other proactive measures and action can be taken to promote freedom of speech

Policy and documentation 

• Review and update existing Freedom of Speech Code of Practice and consider how compliance will be ensured / monitored and ensure there is a suitable mechanism for publicising it every year to students

• Consider which other policies and procedures may also need review and revision in light of the Act – for example complaints, access and participation plan, student code of conduct, Prevent

• Ensure that the website and any other published statements about freedom of speech and academic freedom reflect the new duties

• Review educational documents including training courses and advisory documents in relation to inclusive education 

Governance

• Ensure that governance documents reflect the new duties, paying particular attention to any statements on freedom of speech and academic freedom 

• Ensure that Governors are aware of duties and arrange suitable training 

HR

• Review HR policies and procedures (including recruitment policies and approaches and performance review, appraisal, grievance and disciplinary policies and processes)

• Ensure that staff are aware of duties and arrange suitable training

Complaints

• Review complaints procedure

• Ensure that any complaints about sexual misconduct or other forms of harassment or bullying are handled in line with the Act, including regarding the use of non-disclosure agreements

Premises

• Review premises hire documentation and any policies and procedures relating to visiting speakers

Overseas funding

• Consider any overseas funding arrangements and the implications of these in light of the Act

• Reflect on what should be included in any new partnership arrangements with overseas and commercial entities

Legal/regulatory

• Consider any steps required to prepare for the new statutory tort – notify insurers that this is on the horizon and check whether such claims would be covered

• Prepare for OfS monitoring of new duties – ensure information and documentation is readily available 

• Keep an eye out for updates from the OfS in particular, relating to the new conditions for registration – see proposed timeline here.

Further guidance is awaited on this, but it would be logical for the new conditions of registration to be monitored in line with the existing OfS regulatory framework. It is understood that the OfS will seek information about overseas funding and students unions in order to monitor compliance with related duties. It is less clear how the approach to non-disclosure agreements will be monitored and/or the extent to which the new complaints scheme will feed into ongoing monitoring. 

Difficult to say at this point. At the very least, the Act will raise awareness at HE providers of issues around freedom of speech and academic freedom. It is also likely to result in an increase in complaints regarding freedom of speech, given the creation of new channels for complaints, and opportunities for complainants to receive legal redress and compensation.

In relation to non-disclosure agreements, noting the Act would consider those agreements to be void, staff, members, students and visiting speakers may call out their use and any court or Tribunal will consider the Act and if appropriate, declare an agreement void.

This could be the subject of an entire separate note, but in short, the freedom of speech and academic freedom duties will overlap and may occasionally clash with existing duties.

Where there is overlap e.g. where a provider is in breach of their freedom of speech or academic freedom duties and the breach relates to a protected characteristic under the Equality Act, staff, members, students, or visiting speakers may be able to bring a claim for breach of the civil duty and a claim under Equality Act legislation, and as there are stricter time limits for Equality Act claims, individuals may still take this route at least initially to preserve their position.

Where friction occurs, for example in the context of gender critical beliefs, HE providers will need to make sensitive decisions weighing up whether the expression of the religious belief amounts to unlawful discrimination and/or harassment.  The SK Education and Employment teams are always happy to provide support and advice in relation to these complex and multi-faceted decisions.

Colleges, as public bodies, are also subject to various overarching duties such as the Public Sector Equality Duty and the Prevent Duty. HE providers will need to ensure that they have due regard to these other duties when updating their Codes of Practice and other policies and documentation and when taking decisions about freedom of speech matters.