The Duty to Promote the Importance of Free Speech and Academic Freedom – What Higher Education Leaders Need to be Considering 

The Higher Education (Freedom of Speech) Act 2023 introduced a set of duties into the Higher Education and Research Act 2017 (“HERA”), including duties to secure freedom of speech, maintain a code of practice, and promote the importance of freedom of speech and academic freedom. This briefing focuses strictly on the promote duty in section A3.

Section A3 requires the governing body of a registered higher education institution to promote the importance of freedom of speech within the law and academic freedom for academic staff in the provision of higher education.

The promote duty is a proactive duty: institutions should be able to show visible, sustained and credible efforts to champion the importance of free speech within the law and academic freedom.

The briefing explains who bears the promote duty, what “promote” should mean in practice, how governing bodies can manage this and ways institutions can evidence meaningful activity.

The promote duty comes into force on 1 April 2027 so institutions do need to start planning now.

Understanding the Promote Duty

HERA as updated contains several related duties relating to free speech, but they perform different functions: section A1 is concerned with securing lawful freedom of speech, section A2 with a supporting code of practice, and section A3 with promoting the importance of freedom of speech and academic freedom. This briefing concentrates on A3.

The duty is imposed on the governing body of an institution and the statutory language is explicitly framed around promoting the importance of free speech and academic freedom in the provision of higher education.

As with many other aspects of OfS regulation the obligations sit with the governing body, adding further responsibilities to already heavy agenda.

It is interesting to speculate about the intentions of the previous government in framing the promote duty as it did. There were a number of very clear references in debates in the House of Lords to the duty being to promote the importance of free speech and academic freedom rather than the rather more open approach of a duty to promote free speech and academic freedom. Perhaps it was thought that it sounded more forceful or weighty this way? In any case, it is left to institutions to determine how best to promote the importance of the activities rather than simply the activities themselves.

What does section A3 actually require?

Freedom of speech within the law

The governing body must promote the importance of lawful freedom of speech in the provision of higher education.

Academic freedom

The governing body must also promote the importance of academic freedom for academic staff. The statutory concept includes freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.

Institutional responsibility

The duty falls on the governing body.

Proactive character

A3 is not defined by a prescribed checklist. The OfS’ proposed guidance describes it as proactive and suggests activities such as information and events, teaching and research, training and orientation, and other activities suited to the institution’s circumstances.

Most institutions will already have strong statements about free speech and academic freedom in their governing documents. The challenge presented by A3 is to establish how best the governing body can maintain effective oversight over activities it will have to delegate to a range of individuals and bodies.

When does guidance become expectation?

The promote duty as presented by the OfS looks for a visible institutional programme, supported by leadership, culture, communications, staff development and evidence.

Although non-prescriptive and framed very much as a series of suggestions rather than requirements, the inclusion of a range of activities within what is to become Annex D of the OfS Regulatory Framework (rather than Regulatory Advice) inevitably adds greater weight to the expectation that many of these will be implemented.

These suggestions are wide ranging in relation to promoting the importance of free speech and academic freedom and cover, among other things:

• Activities in the classroom and online and the setting out of expectations and messaging
• More training for staff
• Induction activities for new students and staff
• Special training and orientation for visiting staff and international students
• Specific suggestions for academics managing discussions in lectures
• More debates
• Visible public statements from the Chancellor, the Vice-Chancellor and the Chair of the governing body
• Adopting a position of ‘institutional neutrality.’

There are plenty of other suggestions too. The concern must be though that these ‘suggestions’ by virtue of appearing as part of a new Annex in the Regulatory Framework will very quickly become requirements, or at the very least result in a regulatory expectation that institutions will comply or explain.

Whatever the activities undertaken it will be important to ensure regular reporting to the governing body on the execution of the promote duty and for the governing body periodically to review activities undertaken to determine that they are appropriate and sufficient given the character and situation of the institution.

What should institutions be doing now?

Given all of the work which institutions will have already undertaken in relation to free speech and academic freedom over many years and in anticipation of the other OfS regulatory requirements, the additional efforts associated with the promote duty may not be too onerous. However, it is sensible to at least review the current institutional position and determine what, if any, further actions may be required. The following steps are suggestions for possible action:

• Consider reinforcing or restating institutional positions on the importance of free speech and academic freedom.
• If required, draw up an action plan for the promote duty with activities, objectives and reporting arrangements.
• Review existing documentation and comms that already promote free speech and academic freedom.
• Explore whether additional promotional steps need to be built into staff development, student and staff induction and engagement activities.
• Clarify governing body expectations and reporting requirements.

Looking ahead

If you or your institution are looking for support or advice on the approach to take in relation to the new regulations or broader free speech or academic freedom issues then please do get in touch with our education team.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.